Wednesday, December 1, 2021

Getting the Legal History of Abortion Right

It continues to be frustrating to see inaccurate statements and polemics on the history of abortion in America.  Even more frustrating when those voices are elevated to legitimacy as alleged balanced discussions of the issue. 

 The leading book on 19th century history of the laws and legal regulation of abortion is James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979). 

For more modern legal history, the leading book on post-Roe legal history is Mary Ziegler, Abortion Law in America: Roe v. Wade to the Present.  For the time just before Roe, one of the best sources is the edited collection by Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before Roe (2010).

I have written on the topic of the long history of abortion in the 19th century, particularly on the improper attribution of anti-abortion views to the feminist foremothers like Elizabeth Cady Stanton and Susan B. Anthony:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)

Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women’s history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation. And political forums for college students popularize the notion that feminists historically opposed abortion. Prolife groups claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.

 

The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.

 

The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.

 

The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it. Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.

Tracy Thomas, Chapter 4 "The 'Incidental Relation' of Mother" and Chapter 6, "Conclusion," in Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).

Tracy Thomas, interview in The Atlantic, The Epic Political Battle Over the Legacy of the Suffragettes (June 2019) 

Tracy Thomas, National Constitutional Center Podcast, The Constitutional Legacy of Seneca Falls (July 25, 2019)

Tracy Thomas, in Lily, Was Susan B. Anthony Antiabortion? (Aug. 3, 2020)

See also Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)

https://lawprofessors.typepad.com/gender_law/2021/12/getting-the-legal-history-of-abortion-right.html

Abortion, Constitutional, Legal History, Reproductive Rights | Permalink

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