The Selective Reading of History by the Supreme Court

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The history of abortion in the United States guided some of Supreme Court Justice Samuel Alito’s arguments in the Dobbs v. Jackson Women’s Health Organization decision. Alito argued that abortion has never been a “deeply entrenched” constitutional right in the United States.

But as a historian of medicine, law, and women’s rights, I think Alito’s reading of the history of abortion is not only incomplete, but also inaccurate.

Alito argued that abortion has always been a serious crime, but there was no abortion law in colonial America. Beginning in the 19th century, most states prohibited it only after an “acceleration”, when a pregnant woman can feel the fetus move for the first time, usually between the fourth and sixth month of pregnancy.

Abortion is indeed deeply rooted in American experience and legislation. American women have always tried to personally determine the size of their family. Enslaved black women used contraception and abortion as specific strategies of resistance against their physical and reproductive servitude.

The very passage of the 13th and 14th Amendments, which ended slavery and guaranteed citizenship for all, is proof that the Constitution does indeed protect bodily autonomy. The due process and equal protection clauses of the 14th Amendment have long been the legal basis for gender equality cases. If, as the Supreme Court ruling suggests, the right to abortion is not constitutionally protected via the 14th Amendment, this opens up the possibility that other established laws regarding gender equality and race are also subject to cancellation.

Instead of examining abortion through the prism of earlier gender law cases, however, Alito instead refers to the views of seventeenth-century male legal theorists, who believed in witches and the right of husbands to rape their wives. He also cites as evidence the passage of state abortion laws in the 19th century by all-male legislatures, which criminalized abortion and birth control. The Comstock Postal Act of 1873 also made the possession or sale of all sexual information and contraceptive items a federal crime.

Meanwhile, Alito’s opinion does not discuss the women’s rights movement of the 1800s or women’s ordinary, everyday perspectives on abortion at the time. In this landmark decision, the court skipped over one of the biggest parts of US history on abortion, creating a glaring gap in understanding of how abortions and abortion law in the country functioned in the past.

Voluntary maternity

Considering how suffragists like black journalist and activist Ida B. Wells and other prominent women’s rights activists in the 19th century thought about rights to their own bodies is an overlooked part of this story.

19th century suffragettes focused on women’s suffrage – and did not openly support the legalization of abortion or birth control.

The reason reproductive rights were omitted from the suffragette campaign is complex.

Suffragists argued that legalizing birth control and abortion would harm women, who already had few legal rights at the time. They said men would then use these legal freedoms to further abuse and control women.

Instead, suffragists embraced an idea they called “voluntary motherhood.” This meant that women had the right to reject unwanted sex and could choose if and when they had children.

Even in happy marriages, many women in the 1800s could not necessarily control the number of pregnancies they had. Marital rape was legal, and slavers had complete control over the bodies of enslaved women.

The idea of ​​voluntary motherhood – meaning that women should have full control over their own bodies – was a powerfully radical idea.

This notion appealed to women of all races and social classes and contributed to the emergence of the women’s rights movement from the 1840s.

Suffragist reformers recognized that the right to vote meant little if they had no control over their bodies or reproductive lives. Black suffragettes like Wells and Frances Ellen Watkins Harper, for example, have spoken eloquently of the constant dangers black women face from white men who rape and assault them.

They and white suffragists like Lucy Stone argued that gaining the right to vote would help empower women to fight these issues.

These activists recognized that women turned to contraceptives and abortion to control their own reproduction. But they also said manufacturers and people who perform unscrupulous abortions sometimes take advantage of women by selling them ineffective or harmful contraceptives or charging them large sums for abortions. The substances used to induce abortion, or abortifacients, also often contained harmful and toxic ingredients that killed women, while surgical abortions were incredibly risky at a time when germ theory and understanding of infection were at the fore. better rudimentary.

Reformers have also openly blamed tough anti-abortion laws for contributing to these problems – pushing women to desperate measures while allowing men to have sex freely and shirk their responsibilities of fatherhood.

Suffragist Matilda Joslyn Gage agreed, writing in a suffrage journal in 1868 that “this crime of…abortion…lies at the door of the male sex.”

Using History

Today, some anti-abortion women’s groups are turning to the suffragist movement to argue that abortion should be limited or banned.

Feminists for Life and Susan B. Anthony Pro-Life America, for example, have long based their fundraising and advocacy campaigns on trying to prove that suffragists are “pro-life.” But research shows their argument is an incomplete reading of suffragists’ complex views on abortion, while incorrectly assuming that suffragettes would have supported current laws banning abortion today.

There is ample primary source evidence in suffrage newspapers like “The Revolution” or in the private letters of suffragists showing that they repeatedly insisted that anti-abortion laws punished women, without eliminate the practice of abortion.

White suffragettes like Anthony held overtly racist and eugenic views, and their support for women seeking abortions often incorporated ideas of eliminating disability and what they viewed as unwanted offspring. They prioritized the rights of middle-class white women and ignored or outright rejected urgent calls from black reformers for reproductive justice.

But this messy and complex past is nonetheless essential to understanding Americans’ experiences with abortion and abortion law.

Alito wrote that the role of women in the history of abortion is too “conflicted” to be useful. Yet consideration of women’s historical attitudes toward reproductive rights—and the reasons behind those views—was a critical omission in the court’s historical considerations of the role of abortion in life. Americans.

Lauren Thompson is an assistant professor of history at Kennesaw State University. This the article is republished from The Conversation, an independent, nonprofit source of news, analysis and commentary from academic experts.

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