In 2007 students at the University of Connecticut created this website exploring the same case, using Dayton’s analysis, transcriptions, photographs of the sites involved, and more. (This may have grown from the similar work of Prof. Larry Cebula or it may have been a parallel effort.)
The “Taking the Trade” paper and website examine a dispute in colonial Connecticut. In 1742, Sarah Grosvenor of Pomfret ended an unwanted pregnancy by inducing a miscarriage, having used both medicinal and surgical means, but she died two months later.
Grosvenor’s family complained about the man who had impregnated her, Amasa Sessions. Many colonial New England men in that situation married their sexual partners and went on to have more children, however grudging the partnership was. In contrast, Sessions pressed Grosvenor to take an abortifacient provided by Dr. John Hallowell of Killingley.
In 1746, Sessions and Hallowell were indicted for the reckless murder of Sarah Grosvenor—but not for trying to induce an abortion. In fact, Grosvenor’s sister had also helped her end the pregnancy, but she was not indicted. The surviving documents don’t offer answers for all the questions they raise, but they make clear that eighteenth-century New Englanders knew about abortion and viewed it primarily as a private matter not involving the government. Providing an unsafe abortion was potentially criminal.
A crucial aspect of how Sarah Grosvenor and her contemporaries understood her situation was the “quickening”—the moment when a pregnant woman can feel the fetus move inside her body. Only then, according to the thinking of the time, did a soul enter the fetus, making it a person. That was usually about twenty weeks into a pregnancy.
The U.S. of A. is currently in a heated discussion about Justice Samuel Alito’s draft decision upending American women’s right to abortion, federally guaranteed for almost half a century. That draft claims there is a longer history of laws against abortion.
However, as Prof. Holly Brewer has pointed out, all of the draft’s so-called legal precedents from the seventeenth and eighteenth centuries ban abortion procedures only after the quickening. Other cited laws banned abortion methods on the grounds they were unsafe for the woman, not because they ended her pregnancy.
This is a problem with “originalist” jurisprudence: determining modern law based on history requires actually understanding that history in all its nuances, not just plucking out details that suit the result the judge desires. As the “Taking the Trade” paper and website show, colonial Americans didn’t view safe abortion as a criminal matter.
Yup. Based on what I dimly recalled reading about the various ways abortion was handled/viewed in early America, I immediately thought that Alito's "historical" context was tendentious at best.
ReplyDeleteThanks for getting the evidence out there!
The Federalist Society and its allies have made it clear, many times over the years, that their "originalist" doctrine is merely a cover for decisions and policies that further the goals of their major donors. If the doctrine supports their political ends, they use it and cite it. If it doesn't support their wishes, they conveniently forget the doctrine. Their hypocrisy has been incredible, especially in recent years.
ReplyDeleteThe Constitution makes exactly one reference to pregnancy and birth. The Fourteenth Amendment confers certain rights, and "equal protection of the laws", on "All persons born or naturalized in the United States, and subject to the jurisdiction thereof". There are no references to, and no rights conferred upon, any "preborn" or "unborn" individuals.
To truly honor the First Amendment, to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", then we should not be adopting policies simply because they are consistent with the beliefs of one religion, while they are opposed by adherents of many other religions. That's especially true when the members of the opposing religions greatly outnumber the believers of the first. (And there are probably many individual members of the first religion who disagree with those policies as well, despite what their church leaders tell them to believe.)
As a public historian, lecturer, and tour guide, I've sometimes been asked, "Why didn't the Founders make this a Christian nation?" To which I respond, "Which version of Christianity should they have chosen?" The Congregationalism of New England, the Anglicanism of Virginia, the Catholicism of Maryland, the Quakerism of Pennsylvania? Or the deism of Thomas Jefferson? Indeed, one of the first lessons the Founders learned when they gathered in Philadelphia was to be tolerant of those who held other beliefs. That's what makes America strong. E Pluribus Unum, out of many, one.
Our society and our nation have progressed in many ways since 1787, extending more rights and more freedoms to all. Now those of a certain party want to take us backwards, rescinding rights of those whom they disagree with.
Hell, if we really wanted to go back to 1787, we could reinstate slavery. Then we could count the enslaved people as three-fifths of a person for the purpose of apportioning Congressional seats, even though the enslaved people couldn't vote.
Thanks for this. Jill Lepore observed in the New Yorker, "There is no mention of the [abortion] procedure in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito." She points out that women, themselves, are never once mentioned in the Constitution. His arguments are specious.
ReplyDeleteAnother problem with the law is that through advancements in modern medicine the viability of a baby outside the womb has significantly increased a number of weeks since Roe vs. Wade was decided (1973), and even since Planned Parenthood v. Casey was decided (1992).
ReplyDeleteIn the same decades, there have been significant advances in the safety and convenience of abortion methods.
ReplyDeleteI should note that Justice Alito’s draft acknowledges the concept of “the quickening,” but also misstates when medical experts say it occurs and ignores how it limits the laws he cites as precedents.
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