Friday, May 20, 2022

More on the History of Abortion as Different than Presented by Justice Alito in the Draft Dobbs Opinion

Wash Post, Abortion in the Founders" Era

Justice Samuel A. Alito Jr. calls himself an originalist, someone who thinks the Constitution should be interpreted only by how it would have been understood by the Founders when they wrote it. So it’s no surprise that his draft opinion overturning Roe v. Wade is full of history.

 
At least seven times, Alito cited Sir Matthew Hale, a 17th-century jurist who didn’t think marital rape was possible because wives were the property of their husbands, and who sentenced at least two women to die for witchcraft. Alito also cited a legal text from 1250 by Henry de Bracton that, in another section, says women are inferior to men, and that they sometimes give birth to literal monsters.

 

Alito confined his exploration of the past to legal history and English common law. But to assess how the Founders would view abortion rights, it’s necessary to paint a fuller picture of what abortion was actually like in the time of the Founders.

 

In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.”It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.

 

In the late-18th and early-19th centuries, no states had laws against any form of abortion, though Alito averred that “manuals for justices of the peace printed in the colonies in the 18th century” sometimes "repeated Hale’s and [William] Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder if the woman died.”

NPR, For Ben Franklin, Abortion Was Simple Arithmetic

NPR's Emily Feng speaks with Molly Farrell from The Ohio State University on why Ben Franklin included instructions for at-home abortions in his reference book, The American Instructor.***

 

So I thought, OK, how do you solve the problem of a missed period? And it says this is a common complaint among unmarried women that they miss their period. And then it starts to prescribe basically all of the best-known herbal abortifacients and contraceptives that were circulating at the time. It's just sort of a greatest hits of what 18th-century herbalists would have given a woman who wanted to end a pregnancy early in her pregnancy. And that's what, by the way, this abortifacient recipe would really be for was really early. It talks about, like, make sure you start to take it a week before you expect to be out of order. So take it before you've even missed that period, and it will be most effective. So it's very explicit, very detailed, also very accurate for the time in terms of what was known at the time for how to end a pregnancy pretty early on.

 

And then at the end, it just really comes out swinging and lets you know this is definitely related to sex 'cause it says, you know, also women - you know, in order to prevent this complaint at the end - so prevention for next time - don't long for pretty fellows or any other trash whatsoever.

See also Molly Farrell, Ben Franklin Put an Abortion Recipe in his Math Textbook

https://lawprofessors.typepad.com/gender_law/2022/05/more-on-the-history-of-abortion-as-different-than-presented-by-justice-alito-in-the-draft-dobbs-opin.html

Abortion, Legal History | Permalink

Comments

Post a comment