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Joseph W. Dellapenna, DISPELLING THE MYTHS OF ABORTION HISTORY, Chapter 8, Carolina Academic Press, 2006.

Abstract

Dispelling the Myths of Abortion History covers over 1,000 years of abortion history in England and America, with special emphasis on the nineteenth and twentieth centuries. It presents an accurate and thoroughly fresh look at that history, reaching several unorthodox conclusions without taking sides on the merits of the abortion debate. The true history of abortion in England and America is important because Justice Harry Blackmun, drawing on the work of law professor Cyril Means, structured the argument of the majority in Roe v. Wade around the history of abortion laws. Means’ argument was later buttressed by the work of historian James Mohr. Means and Mohr created a new orthodox history of abortion designed to sustain the constitutional right to abort. This new orthodoxy proclaimed four theses as summarizing the “true” history of abortion in England and America:

(1) Abortion was not a crime “at common law” (before enactment of abortion statutes in the nineteenth century). (2) Abortion was common and relatively safe before the statutes were enacted. (3) Abortion statutes were enacted to protect the life of the mother rather than the life of the embryo or fetus. (4) The moving force behind the nineteenth-century statutes was male physicians’ efforts to suppress competition from (largely female) practitioners of alternative forms medicine.

Each of these theses is incorrect. Only by placing strictly legal materials in social, political, and technological contexts can one properly understand what happened in the past and how the law specific to abortion changed through time. Anglo-American law always treated abortion as a serious crime, generally including procedures performed early in pregnancy. Prosecutions and even executions go back 800 years in England, establishing law that carried over to colonial America - law that focused consistently on protecting the life of the unborn child.

Dispelling the Myths of Abortion History sets forth the evolution of abortion laws from the earliest days of the common law in twelfth-century England to the opening of the twenty-first century in England and America, framing that story in extended analyses of the social practices that surrounded abortion and abortion laws down through the centuries, with particular emphasis on how abortions were done and on how people have otherwise prevented or disposed of unwanted pregnancies. Changing medical technologies in the last three centuries made abortion less dangerous for the mother and more difficult to detect, yet well into the twentieth century nearly everyone - led by feminists, physicians, and religious leaders - condemned abortion as “child murder” and dealt with the resulting moral challenge through statutes to repress or prohibit abortion. Only in the later twentieth century, faced with the perfection of techniques for doing abortions as well as other social changes, did many societies begin to manage abortion as a medical problem rather than a legal problem, repealing or modifying the laws prohibiting or restricting abortion.

This chapter discusses the role of nineteenth-century feminists in the enactment of the abortion statutes of that century and the obfuscation of that role by contemporary supporters of abortion rights. The nineteenth-century feminists, including Susan B. Anthony, Tennessee Claflin, Elizabeth Cady Stanton, Victoria Woodhull and just about every other feminist who has left a record from that era regarding abortion were all staunchly opposed to abortion - which they uniformly referred to as “child-murder.” These women were hardly afraid to speak their mind, having included the author of a new “women’s Bible” (Stanton), led the “free-love” movement (Claflin & Woodhull), became millionaires as stockbrokers (Claflin and Woodhull), and ran for President (Woodhull, with Frederick Douglas as her running mate). Nor were these women unsophisticated about abortion, carefully distinguishing between abortion and contraception, and supporting the latter but not the former. This pattern, more than anything else, refutes the now generally accepted notion that the abortion statutes were a male conspiracy to suppress women. In fact, they saw abortion as something that men forced on women, leading them to support “voluntary motherhood,” meaning voluntary sex and contraception rather than abortion. As Christabel Pankhurst, an English counterpart to the American feminists summarized the point, the goal was “Votes for women, and chastity for men.”

Disciplines

Constitutional Law | Law and Gender | Law and Society | Legal History

Date of this Version

April 2006

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