Scarlet Letters: Getting the History of Abortion and Contraception Right
If recent legislation passed in Arkansas and North Dakota is allowed to stand, it will be harder for women to get an abortion in those states than it was in New England in 1650. Legislators in Little Rock and Bismarck have passed new restrictions that ban abortions according to when a fetal heartbeat is detected, which can occur as early as six weeks into a pregnancy. Federal judges have blocked the new restrictions until legal challenges to their constitutionality are settled. But the six-week deadline contrasts starkly with early American abortion law, where the procedure was legal until “quickening”—the first time a mother feels the baby kick, which can happen anywhere from 14 weeks to 26 weeks into pregnancy.
Abortion was not just legal—it was a safe, condoned, and practiced procedure in colonial America and common enough to appear in the legal and medical records of the period. Official abortion laws did not appear on the books in the United States until 1821, and abortion before quickening did not become illegal until the 1860s. If a woman living in New England in the 17th or 18th centuries wanted an abortion, no legal, social, or religious force would have stopped her.
That, however, is not the way the anti-abortion movement likes to paint the history of abortion in the United States. Anti-abortion organizations such as the National Right to Life spin a narrative in which legal abortion is a historical anomaly and an unnatural consequence of modern America’s loose moral standards. On the National Right to Life’s website, for example, a page titled “Abortion History Timeline” describes “a few rogue doctors and midwives” performing abortions in early America, only “as far back as the 1850s.” In reality, trusted midwives and medical practitioners performed abortions from the beginning of American colonial life and throughout world history. Fox News also falsifies American abortion history on its website. On a page titled “Fast Facts: History of U.S. Abortion Laws,” it claims that abortion in the American colonies “was ruled a misdemeanor if performed prior to quickening.”
Other anti-abortion groups such as the Family Research Council claim that abortion could not have had “foundation in the text of the Constitution”—overlooking the fact that when the Constitution was written, abortion was legal until quickening. Americans United for Life makes the same mistake on its website, misconstruing a quote from Thomas Jefferson—“The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government”—as being anti-abortion. Americans United for Life also describes itself on its website as working to “restore a culture of life.” Of course, when the founding fathers met in a sweltering hall in Pennsylvania to declare independence, such a culture was not even a twinkle in their eyes.
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Puritans, sex, and legal abortion
To many people, the facts about abortion’s legality in early America can be surprising. This is partly thanks to the American imagination, which paints the Puritans—the first English settlers on American soil to focus on creating communities and families—as strict, foreboding people, incapable of joy or laughter, let alone sexual pleasure. This popular perception is drawn partly from books such as Nathaniel Hawthorne’s The Scarlet Letter, which portrays Puritan society as deeply religious, dark, and unforgiving. It is hard for modern Americans to believe that a society as pious and austere as the Puritans’ New England—the cultural and legal parent of much of early American communal life—tolerated a controversial procedure such as abortion.
In reality, the Puritans were much more lighthearted than is commonly thought, and in some ways, they were quite progressive when it came to sexual conduct. Puritans believed that marital sex for pleasure was important and that marriage was a contract of love, not just economics. Although premarital and extramarital sexual relationships were illegal, they were so common that enforcement was never very strict. The legal documents of the time are rampant with recorded “sexual offenses,” and the percentage of firstborn children born early or completely out of wedlock hovered at around 40 percent during the colonial era. Since the Puritans believed that one could be godly without children and that life began when a mother felt her baby kick, their strict religious code had no need to outlaw abortion before quickening.
The Puritans brought their laws on abortion from merry old England, where the procedure was also legal until quickening. Although the Puritans changed much of England’s legal system when they established their “city upon a hill,” they kept abortion as a part of Puritan family life, allowing women to choose when and if they would become mothers—whether for the first time or the fifth time.
Colonial women procured prequickening abortions mainly with the help of other women in their communities; skilled midwives knew which herbs could cause a woman to abort, and early American medical books even gave instructions for “suppressing the courses,” or inducing an abortion. Much of what we know about abortion in 18th-century America comes from the case of Sarah Grosvenor, a young woman who died from a late-term surgical abortion in Connecticut in 1742. Surgical abortions were rare and dangerous; most abortions in this period were induced by herbal abortifacients. Sarah’s case entered the legal record after the doctor who performed her abortion was brought to court for murdering the young woman and her unborn child—the abortion was illegal since it took place after quickening. Cornelia Hughes Dayton, however, an early American historian who has researched the case extensively, points out that when Sarah first tried to abort her child by “taking the trade”—ingesting herbal abortifacients—the women of her community were not surprised by her actions. They were familiar with abortion and were not troubled by its ethical implications.
The campaign to criminalize abortion
Acceptance of early-term abortion changed during the 19th century as Victorian sensibilities took hold. By 1910 abortion—except in cases to save the mother’s life—was a criminal procedure in every state except Kentucky, where the courts declared the procedure to be judicially illegal. The new restrictions on abortion were caused by many factors, including changing social, class, and family dynamics in the early 19th century. Americans in the Victorian era thought abortion was a problem brought on by upper-class white women, who were choosing to start their families later and limit their size. Increased female independence was also perceived as a threat to male power and patriarchy, especially as Victorian women increasingly volunteered outside the home for religious and charitable causes.
During the mid-19th century, American physicians also began to battle “irregular” doctors, such as homeopaths and midwives, in an attempt to assert the authority and legitimacy of male-dominated scientific medicine. To tackle these irregular doctors, the “scientific” physicians attacked legal abortion because it was midwives and other “unscientific” medical practitioners who safely performed the procedure. White men were also concerned by shifting ethnic and racial dynamics in the United States, worrying that the low birthrate of the white upper class would lead to racial inferiors and un-American immigrants overrunning the country.
Together, a coalition of male doctors backed by the American Medical Association, the Catholic Church, and sensationalist newspapers began to campaign for the criminalization of abortion. By the turn of the century, this coalition had largely succeeded in limiting women’s medical choices. According to Carroll Smith-Rosenberg in her book Disorderly Conduct: Visions of Gender in Victorian America, restricting abortion was one way that male physicians could “assert clear authority” over their female patients. The Victorian anti-abortion movement portrayed women who terminated their pregnancies as unnatural and selfish, undermining the expected, patriotic, and godly role of the American woman—that of wife and mother.
After abortion was made a criminal offense at the close of the Victorian era, it would not become legal again until 1973, when the landmark Roe v. Wade Supreme Court ruling declared that all women had the right to terminate a pregnancy until the fetus was viable outside the womb. The decision came after years of legal, political, and religious advocacy on behalf of women and their reproductive health and rights. In the roughly 100 years when abortion was illegal in the United States, women suffered and died from botched abortions, with as many as 5,000 women dying every year in the decades leading up to the ruling. After Roe v. Wade, deaths and hospitalizations resulting from unsafe abortions effectively ended in this country. When abortion was legal in early America, it was considered at least as safe as delivering a child at term, and today abortion is considered an extremely safe procedure. But when a woman’s right to an abortion is restricted, the operation turns risky: Today approximately 68,000 women around the world die each year from unsafe abortions.
The case for contraception
The notion that contraception, like abortion, is a relatively new phenomenon is also wildly distorted. Since ancient times women and men have been using a variety of contraceptive methods beyond abstinence, and the pill is the only type of birth control that was not available until recent decades. Contraceptive methods historically include everything from “pulling out” to diaphragms and condoms. Distribution of and public education about birth control was legal in the United States until 1873, when the infamous Comstock Act was passed.
The act, which declared that information about birth control was “obscene,” grew out of sentiments similar to those that spurred the anti-abortion movement. It also led 24 states to pass similar restrictions; collectively, the federal and state restrictions were known as Comstock laws. Margaret Sanger, the well-known crusader for birth control and founder of what is now called Planned Parenthood, was arrested for violating Comstock laws while attempting to educate desperate women about how they could better control their own bodies and their families by using contraception.
It was not until 1965 that the last Comstock laws left standing in the United States were ruled unconstitutional. In Griswold v. Connecticut, the Supreme Court ruled that married women in every state had the right to access birth control. But unmarried women had to wait until the 1972 Supreme Court ruling in Eisenstadt v. Baird to gain the same right.
Painting the past, protecting the future
Abortion and contraception are not new. They are not a product of modernity or rising secularism or a reflection of the downfall of the traditional family. Throughout history, women and their partners have chosen to limit their families for the sake of their health, happiness, and economic viability. Men and women frequently made these choices without the guilty association of sin; whether abortion and contraception were legal often had nothing to do with a society’s piety. Instead, the legal status of abortion was tied to a society’s outlook regarding sex and gender, with religion giving a moral high ground to either side of the argument.
Many people imagine our history in a way that is more fantasy than reality, assigning values and morals that they wish contemporary society possessed to our nation’s founders. But imagining quaint and pious scenes does not make them true. The Scarlet Letter’s bleak and unforgiving portrayal of Puritan sexuality is more a reflection of the Victorian sexual standards of Nathaniel Hawthorne’s era than the sexual values of his ancestors’ days. In reality, female sexuality in the Puritan and colonial period was in many ways more liberated than in Hawthorne’s days; it was only years later that chastity became the prized virtue of the American woman.
Today, when anti-abortion groups proclaim their version of history and discuss the founders or rogue doctors, they are imposing their own moral vision on an unhistorical past. The anti-abortion movement’s imagined reality—in which colonial Americans believed that life began at conception, championed the rights of the “unborn,” and prevented female sexual freedom—is just plain wrong, regardless of the true ethical questions surrounding abortion. Sexual values surrounding abortion and birth control have changed with time and cultures, a historical truth that everyone on the political spectrum must recognize. If an honest discussion about abortion and birth control is to take place, we must appreciate their progressive place in our history and make sure we are not moving backwards in time.
Ranana Dine is an intern with the Faith and Progressive Policy Initiative at the Center for American Progress.
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