April 22, 2007
Who’s a Strict Constructionist? V Posted by Joshua Zeitz at 01:15 PM EST John Steele Gordon invites readers to “do a thought experiment. Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the Ninth Amendment protected ‘the right to have an abortion.’ My guess is he would have looked at you as if you had come from Mars.” This is a useful place to continue with our dialogue on Roe v. Wade. Ignore for a moment the principal shortcoming of this thought experiment: in John Adams’s day, the Ninth Amendment safeguarded Americans against the potential overreach of the federal government; it wasn’t until the Fourteenth Amendment was ratified in 1868 that the individual states were obliged to respect the Bill of Rights. So Adams would likely have responded that the federal government wasn’t in the business of regulating medical procedures, but that the states were free to do so. That nitpicky objection notwithstanding, Mr. Gordon’s thought experiment is a useful one. At first glance, it would seem to bolster his argument that the framers had no particular knowledge of or interest in abortion or birth control, let alone a sense that any of these subjects fell under common or statutory law. I would respectfully disagree. Historians of early America have long noted that live birth rates began to drop off precipitously in the nineteenth century, so that the average American woman bore just over seven children in 1800 but just over three children by 1920. In New England, which led the nation in this trend, live birth rates began to plummet in the late eighteenth century. Clearly, one of two things was happening. Either people had less sex (unlikely) or, in response to the demands of the emerging market economy, they practiced more family planning (likely). Birth control methods of the day were crude, but they included the rhythm method, coitus interruptus, herbal and chemical remedies, and abortion. Surely the Adams family was not unaware of these strategies. In her diary Abigail Adams explained that she had deliberately spaced out her children by two years. One can only assume that John Adams was an active or passive participant in whatever strategy he and his wife plied to achieve that effect. In their day it was perfectly normal to find ads for patent abortion medicines in newspapers and journals. In 1810 the Herald of Liberty, an Augusta newspaper (Maine was then part of Massachusetts, home state of the Adams family), announced the availability of “Dr. Rolfe’s Aromatic Female Pills,” promising that “they are conducive to the health of married women, unless when pregnant, at which time they must not be taken as they would most certainly produce miscarriage.” Rolfe’s cautionary note was not intended to protect him against legal charges, as it was not a criminal offense in Massachusetts, or anywhere else in the United States, to induce a miscarriage before quickening. Mr. Gordon writes, “I imagine [early Americans] rarely thought of [abortion] at all. I would be very interested to learn what, exactly, was the jurisprudence Blackmun was referring to. I wonder, for instance, how many cases there could have been altogether. After all, who would have hauled the women into court? How could it have even been determined whether it was abortion or miscarriage that had ended the pregnancy? How, indeed, would the pregnancy have been known to exist before ‘quickening’?” These are good questions. In fact, there was a surprising amount of abortion case law in colonial America and in seventeenth-century and eighteenth-century England. Normally, criminal prosecutions targeted doctors or male partners who stood accused of aborting live or “quick” fetuses against the wishes of their female patients or lovers. Such was the case in 1652, when one Susanna Warren of Maryland was impregnated by a “prominent citizen,” Captain Mitchell. According to court records, Mitchell prepared a “‘potion of Phisick,’ put it in an egg, and forced her to take it.” The potion didn’t have the desired effect, but Warren brought charges of attempted infanticide against Mitchell. One of the laws governing abortion in the American colonies was an English statute, adopted by parliament in 1624, that made it a crime to conceal the suspicious death of an infant “in life”—meaning, one who had achieved viability. This supports Blackmun’s observation that courts and lawmakers at the time of the Constitution’s ratification were interested in neonaticide, not abortion, and that they drew a fairly distinct line between fetal life and human life. In English and colonial courts, when a woman stood accused of aborting a quickened fetus, all she needed to do was testify that the fetus had not, in fact, been quick. When a doctor or lover stood accused of aborting a quick fetus against the wishes of an expectant mother, the courts similarly took the woman at her word as to whether the fetus was quick. As late as 1812 the Massachusetts Supreme Judicial Court threw out abortion charges against Isaiah Bangs, because the prosecution could not prove that the fetus he aborted had quickened. Presumably (I don’t know the details of the case), the woman whose pregnancy he terminated either died during the procedure or refused to testify that her fetus had been quick. Mr. Gordon and I disagree about three things. First, we differ somewhat (though not, I think, entirely) on a fundamental question to which there is no real answer. Does the Constitution protect only those liberties that it specifically lays out in detail, or does it raise a high bar for taking away rights that people in the eighteenth century commonly enjoyed either by statute or organic case law? Second, as a historian, I’m fairly convinced that early Americans thought about and discussed abortion and birth control a good deal. These topics certainly appear frequently in the diaries of colonial and early Republic women, and given the enormous drop-off in the birth rate—again, a phenomenon that probably reflected a new accommodation with the emerging market economy—it’s hard to imagine that early Americans didn’t discuss procreative and family planning strategies. I find it difficult to imagine that John Adams never discussed with his wife the method by which they deliberately spaced out their children; I also find it hard to believe that as active a member of the Massachusetts bar as John Adams wasn’t aware of the 1812 decision in the state’s Supreme Judicial Court. This leads to my final observation. In the late eighteenth and early nineteenth centuries, abortion and birth control were private affairs. There were no public hospitals, no AMA, no established medical profession, no clinics or social workers to insinuate themselves into the family sphere. Sex and family planning fell safely under the domain of husbands, wives, midwives, and (sometimes) crudely trained country doctors. On those occasions when the state did try to prosecute citizens for aborting a fetus, women were given considerable leeway in affirming or denying that the aborted fetus was quick. In other words, the state stayed out of people’s sex lives except in extreme cases, and even in those cases it had to clear an enormous burden to prove that a crime had taken place. Given how jealously the early Americans guarded the sanctity of their homes and their private sphere—this was, after all, the rationale behind constitutional limits on quartering soldiers in private homes, on compelling self-incriminating testimony, on conducting unlawful searches and seizures, and on abridging the freedom of speech and assembly—it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights. I would thus reframe Mr. Gordon’s question: “Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the state was permitted to imprison his wife or daughter for using Dr. Rolfe’s Aromatic Female Pills to terminate a twelve-week pregnancy.” I don’t know the answer to this question any better than Mr. Gordon, but my guess is no.
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