In the late spring of 1839 in New York City, a nineteen-year-old, white working-class woman named Ann Maria Purdy confided an intimate secret to Rebecca Cromer, her Black laundress: she was pregnant, and worried that her state would prevent her from nursing her ten-month-old son. The washerwoman was sympathetic, and gestured toward a newspaper where a woman named Mrs. Restell published advertisements for “remedies” that could prevent pregnancy. Cromer knew women who had consulted Restell to terminate their pregnancies, too.[1] Purdy would go on to pay Restell for an abortion, and her case would result in the first great abortion trial in New York City in 1841. Purdy was, however, far from exceptional as a client. Lucinda Van Buskirk, a friend whom Purdy brought with her to Restell’s office, testified that she saw three women and two men in Restell’s office.[2] In the same year, another woman named Hester Wells accompanied a friend seeking an abortion to Restell’s, and later reported that she saw multiple women in the waiting room. The women’s testimonies implied that Restell operated a lucrative business, suggesting that abortion was common among women in early nineteenth-century New York City.

These examples show how abortion is a deeply embedded part of United States history, so long as you consider women to be part of the nation. As a historian interested in the narratives of women like those mentioned above, I paused when Supreme Court Justice Samuel Alito argued in his decision for Dobbs v. Jackson Women’s Health Organization that a right to abortion is not “deeply rooted in the Nation’s history and tradition.” Alito recounted that abortion “had long been a crime in every single State” until Roe because “a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.” While an enshrined right to abortion may have been contested in American legal history (the nineteenth-century restrictions to which Alito referred were, in fact, legal innovations at the time they were passed), an unyielding tradition of abortion becomes clear when one looks at the women who comprise “the nation.” Alito’s insistence on the right to abortion looks only at legal precedents established by white men in power, not the experiences of women. Centering women’s lived experiences challenges Alito’s definitions of history, tradition, and the “nation,” revealing an America in which the practice of abortion is not only deeply rooted, but often beneficial.

Alito’s decision cited legal sources demonstrating that abortion was not totally criminalized in early America.[3] American law followed British common law, which criminalized abortion once the child was “quick,” or endowed with life. The mother determined when the fetus entered this stage of development, as it was defined as the moment she felt the fetus move in the womb.[4] Women in colonial and early republican America terminated their pregnancies using a variety of means, including ingesting herbal abortifacients like tansy or ergot; physical exertion, such as riding horses or even jumping from heights; and surgical techniques that dilated the cervix and entered the uterus. Women might attempt to induce miscarriages on their own bodies, or consult a practitioner like an apothecary or a physician for herbal or mechanical assistance.[5] In her foundational work, Cornelia Hughes Dayton has shown that early Americans developed a colloquial vocabulary for abortion, such as the phrase “taking the trade.”[6] Historians of free, urban women in the North have found that abortion became increasingly visible, accessible, and “commercial” in the 1830s and 1840s, with practitioners like Restell operating successful businesses. Abortion was a normal, if private, part of early American women’s reproductive lives.

Legal and journalistic evidence from the nineteenth century reveals intimate details about women’s needs for abortion. For example, Mary Ann Cuddy died in 1853 from overdosing on oil of tansy, an herb with known abortifacient properties, after her husband abandoned her and their “two or three children” for California. She was left, according to the New York Herald, “unprovided for” and “in destitute circumstances.”[7] Cuddy had little financial recourse once her husband fled to the western frontier, leaving her unable to support another child. Abortion was a practical solution that allowed her to support the family she already had. A case ten years later shows how married women, too, saw abortion as a need. Charles Robertson testified that his wife, a British immigrant named Letitia, had attempted multiple abortions throughout her lifetime, and two months prior to her death suspected she was pregnant again. She “seemed almost crazy at the idea, and commenced taking medicine to bring on abortion.”[8] These stories show a few of the reasons that abortion was important for women. Controlling their reproduction allowed them to navigate the constraints of patriarchal social systems and survive in a world without reliable contraception. Cuddy and Robertson are examples of women who may have felt desperate in their circumstances, but exercised their agency by controlling whether or not they were pregnant.

Abortion carried an even greater meaning of autonomy for enslaved women in the same century. While free women like those discussed above may have had access to a variety of practitioners and could use reproductive control to mitigate difficult circumstances, enslaved women were forced into even more secrecy surrounding their reproductive practices. They used abortion as an act of resistance against dehumanizing circumstances. Historians have shown how terminating pregnancies disrupted southern slave owners’ pro-natalist agenda, limiting the reproduction of a workforce that would make white men wealthy.[9] It also prevented future generations from having to endure slavery’s brutality. Access to abortion gave enslaved women a small modicum of power in a world that stole their freedom.

The stories I have discussed here show how critical reproductive control was to nineteenth-century American women’s survival. Considering their stories shows how limited Alito’s view of “the nation” was in the Dobbs decision. To reiterate, perhaps a right to abortion has not been consistently legally enumerated, but the practice of abortion has always been a part of the nation’s history. We should not be surprised that white male framers of the Constitution did not mention abortion or enshrine a right to it in their document; much else was left unsaid. But their mothers, wives, daughters, and the women they enslaved lived in cultures in which abortion was well-known and used by women to frame their own reproductive futures as best they could. One must look beyond laws and toward women to see that. History shows that mere tradition does not justify continuation, but women’s narratives show us that there is a long American tradition of abortion, which, when performed safely, helps women. Women’s stories have convinced me that access to safe abortion is thus worth enshrining in law. Their stories remind us that American law must not facilitate states’ ability to criminalize abortion, but ensure that access to it remains affordable, accessible, and without stigma.

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Endnotes

[1] Henry Merritt, “Affidavit and Examination of Ann Maria Purdy,” Mar. 22, 1841, Court records, 1839–1878 (inclusive), Arthur and Elizabeth Schlesinger Library on the History of Women in America [location?]; “Trial of Madame Restell, Alias Ann Lohman, for Abortion and Causing the Death of Mrs. Purdy; Being a Full Account of All the Proceedings on the Trial, Together With the Suppressed Evidence and Editorial Remarks” (For Sale at the Book Stand in Wall St., Adjoining the Custom House; at the Cottage No. 312 Broadway, Next to Masonic Hall; at the News Office, Corner of Duane and Greenwich St.; Corner of Nassau and Beekman Sts., and Bowery News Office, 1841), 12.

[2] “Deposition of Hester Wells,” Aug. 20, 1839, Dall Case, 1839–40, Court records, 1839–1878 (inclusive), Arthur and Elizabeth Schlesinger Library on the History of Women in America; Trial Transcript [?]18.

[3] Dobbs v. Jackson Women’s Health Organization, 597 U.S.-1, 3 (2022).

[4] Brief for Amici Curiae American Historical Association and Organization of American Historians, Dobbs v. Jackson Women’s Health Organization (Sept. 2021), 5-–8.

[5] Susan E. Klepp, Revolutionary Conceptions: Women, Fertility, and Family Limitation in America, 1760–1820 (Chapel Hill, NC, 2009); Janet Farrell Brodie, Contraception and Abortion in Nineteenth-Century America (Ithaca, NY, 1994).

[6] Cornelia Hughes Dayton, “Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village,” William and Mary Quarterly 48, no. 1 (1991), 19–49.

[7] “Fatal Attempt to Produce Abortion,” New York Herald, Apr. 5, 1853.

[8] “Another Case in Grand Street,” New York Herald, Nov. 11, 1863.

[9] Sharla M. Fett, Working Cures: Healing, Health, and Power on Southern Slave Plantations (Chapel Hill, NC, 2002); Marie Jenkins Schwartz, Birthing a Slave: Motherhood and Medicine in the Antebellum South (Cambridge, ,MA, 2010); Sasha Turner, Contested Bodies: Pregnancy, Childrearing, and Slavery in Jamaica (Philadelphia, 2017).