Two landmark Supreme Court decisions, two starkly different versions of history. Can fresh research give us a more nuanced picture of induced abortion in the early republic?

In 1973, the Roe decision pointed to Anglo–American common law, which held that abortion was punishable only after quickening, the mid-point in pregnancy when a mother felt the child stir. Common law prevailed in colonial British America and for another five-plus decades into the early republic, providing grounds for the claim made in Roe that women in the early stages of pregnancy had “the opportunity to make this choice.”[1] Legal abortion in the first trimester seemed radically new in 1973, yet it appeared to be congruent with the much earlier established practice, Roe said. It was part of the “history and traditions” of the country.

The Dobbs decision of 2022 disagreed. While it acknowledged that pre-quickening abortion was not punished at common law, it nevertheless insisted that pregnancy termination at any stage was always impermissible and disapproved. Evidence to back this claim about negative social attitudes was surprisingly thin: a handful of medieval and early modern examples, wrongly interpreted as about abortion when in fact they were mostly battery cases involving fetal death. Instead, the Dobbs decision rested its case on a wave of nineteenth-century statutes. By 1868, three quarters of the state legislatures had criminalized abortions at any gestational stage, thus removing the 14th Amendment as an authority for abortion as a protected “choice.”

Both Roe and Dobbs focused on the wording and timing of the laws. Neither paid attention to the history of actual induced abortions in the early republic. So that’s what I set out to do.

From my prior research on lurid crimes, seduction court cases, and antebellum sensation journalism, I had a hunch that newspapers might deliver on abortion stories too. I was right, and the level of detail in many instances was astonishing, when coroner’s inquests were reprinted. I started with Genealogybank.com, for its superior search and save features, and then branched out to other digitized products, both national and state-based. Changing journalistic practices certainly inflected the set of publicized abortions, particularly the emergence of 1830s two-penny papers, which pioneered the retailing of abortion stories.

In total I logged 225 distinct abortion stories from 1800 to 1860. I found zero up to 1820, a trickle in the 1820s, a sharp uptick in the late 1830s, a surge in the 1840s, and a torrent in the 1850s. Many cases generated regional and national coverage, reaching into the South.Yet intriguingly, I found no southern-generated abortion cases that made the print news, aside from a few in New Orleans and one in Virginia in 1859.  Notably, fully half of the 225 cases occurred between 1855 and 1860.[2]

Here are some central findings. About four-fifths of these publicized cases involved single women, and half of the remaining fifth involved married women with absent husbands, perhaps at sea or in the gold fields. These were abortions to “hide shame”—a frequent phrase—not to limit marital fertility. Second, a considerable majority were abortions that ended in death for the woman. And third, most significantly, the vast majority of the women covered in newspaper reports were post-quickened, as judged by autopsy doctors or witness statements, even in states with laws that newly criminalized pre-quickened procedures.

This set of abortion stories is highly unlikely to be representative of all abortions. Antebellum news-gathering typically started from official sources—here, the coroner’s office—and hence the overrepresentation of dead women. The women were usually positioned as sympathetic victims in the seduction-narrative mold. Friends testifying at the inquest portrayed them as respectable girls; reporters even praised them for risking death to preserve their reputations. Fetal remains rarely rated any mention at all, beyond gestational age surmised at autopsy, highly relevant to legal charges.

What of married women and abortions, so rarely in the news? In this era when sepsis paid no heed to marital status, a married woman could indeed become ill and die after an instrument abortion. But since she didn’t have to pretend to be chaste, she could have the operation and then return home to stage a spontaneous miscarriage. My newspaper items included several scenarios like this; likely many more stayed in the shadows, as intended. Thus despite maternal death, no coroner’s inquest ensued.

Consider too that married women’s motives to disrupt a pregnancy were completely different from single women hiding their shame. Family limitation methods were sought by many.[3]  The methods were controversial, imperfect, and not matters of polite conversation, but plainly they were moderately efficacious. Falling family size was underway in the Northeast by the 1840s and 1850s.  As a family limitation mentality took hold, early-term abortion provided a back-up for failed birth control methods.

When the Roe decision stated that women had “an opportunity to make this choice,” it was mainly mid-nineteenth-century married women who fit that bill.  A desperate single woman undergoing abortion likely felt she had no choice as all, such was the enormous stigma of out-of-wedlock pregnancy. And when the Dobbsdecision declared that early abortions were always disapproved even when not indictable, that probably reflected an understandable reticence to engage in open discussion about deeply private matters, including sexual behaviors and contraception. It is really not so surprising to find a dearth of endorsements promoting abortion, as well as handwringing regret over the sad deaths of seduced maidens who were so disproportionately featured in the news accounts. Disapproval would be an expected public response.

Yet, tacit acceptance of abortion really was in plain sight in the big cities, with abundant advertising by medical practitioners claiming expertise in restoring female blockages or selling French lunar pills with the warning that they were certain to cause abortion. In New York, Boston, Philadelphia, and elsewhere, well-known abortion providers with well-known addresses operated entirely free from police raids. Arrests were few, arraignments fewer yet, and acquittals the general outcome. For example, in the entire state of Massachusetts, there were 50 prosecutions for abortion from 1845 to 1860 and just three convictions all coming in the last two years. From 1830 to 1850 in New York City, with a growing population over a quarter million, a very large prostitute population, and young men and women by the many thousands living in boarding houses without family protection, there were just 10 abortion cases heard in those two decades in the court of sessions. [4]This was not the surveillance state.

Was there no one who openly championed abortion as a right for women before 1860?  I have found one man who did: Dr. Thomas L. Nichols, a progressive reformer with bold ideas about women’s bodily autonomy.  In a physiology book published in 1853, he declared:

The mother, and she alone, has the right to decide whether she will continue the being of the child she has begun. The wishes of the father should weigh with her—all obligations, moral, social, religious, should control her; but she alone has the supreme right to decide.[5]

Among commentators in print in his day, Nichols was a clearly an outlier. His words sound startlingly modern; they show us that it was possible to conceptualize abortion as a right belonging to an autonomous woman. Relatively few doctors, reporters, lawyers, or legislators—all males—could imagine that married women had a “supreme right to decide” much of anything without concurrence from a husband.

Nichols was bold, but he was not alone in his sentiments. The downward trend in marital fertility from 1840 forward powerfully suggests that an increasing numbers of women were willing to make family limitation decisions—including abortion—with or without a husband’s concurrence. Abortion truly was part of the nation’s history and traditions.

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Endnotes

[1] Roe v. Wade, 410 U.S. 113 (1973), 141–42.  https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf

[2] See my preliminary findings in “Married Women and Induced Abortion in the United States, 1820–1860,” presented at SHEAR 2022 and available online at http://ssrn.com/‌abstract=‌4197554.

[3] Janet Farrell Brodie, Contraception and Abortion in 19^th-century America (Ithaca, NY, 1994).

[4] For Massachusetts:  Annual Reports of the District Attorney,  https://archives.lib.state.ma.us/handle/2452/37969/browse?type=dateissued

New York City’s annual trial statistics were printed in several city newspapers in the first week of January each year.

[5] Esoteric Anthropology (New York, 1853), 190.  I am currently writing a book about Nichols and his wife,  woman’s health advocate Mary Gove Nichols.  Cohen, “The ‘Anti-Marriage Theory’ of Thomas and Mary Gove Nichols: A Radical Critique of Monogamy in the 1850s,” Journal of the Early Republic 34 (Spring 2014), 1–20.