Sometimes people ask, “Why study history?” How about this: American history is the weapon being used to strike down Roe v. Wade. In the leaked draft of the Supreme Court decision that would overturn Roe, conservative justice Samuel Alito writes that Roe invented a right to abortion that cannot be found in early American history. Is he right? And what’s the true history of abortion in America?
That’s the subject of today’s episode—a fast, factual guide to how we got to this moment, reviewing the 300-year history of abortion in America in just 30 minutes. Today’s guests are two historians of abortion in America—Mary Ziegler, a visiting professor at Harvard, and Karissa Haugeberg, assistant professor at Tulane University. Part of their conversation is excerpted below. If you have questions, observations, or ideas for future episodes, email PlainEnglish@Spotify.com.
Derek Thompson: We begin where Samuel Alito begins: in the late 1700s. The United States has won the War of Independence and our founding fathers are pulling together the U.S. Constitution. There’s a key phrase in that sentence, by the way: founding fathers. We are talking about a document written by 55 men and zero women.
Karissa Haugeberg: So that’s what’s interesting. As a historian of abortion politics, I would offer that there’s also a really glaring absence of abortion mentioned in any federal document from this period. And that’s because it wasn’t in the imagination of legislators. And so he’s looking for something that would not have occurred to people in the 18th century. And a lot of that is because abortion wasn’t particularly controversial.
DT: What do you mean that abortion wasn’t particularly controversial in the 1700s?
KH: There wasn’t what we would consider to be a movement from the 1960s to protect the right to abortion. So he is looking for language and a movement that wasn’t there. That just simply wasn’t in the imagination of 18th-century Americans. The word “gender” isn’t mentioned in the Constitution until 1868, and that’s part of those post–Civil War Reconstruction amendments. And in the 14th Amendment, it’s in regard to voting, it’s to ensure that formerly enslaved men have the right to vote. So before that the Constitution is really pretty gender neutral, it talks about persons and people. So, again, we’re looking for something that we’re not gonna find if we’re looking for evidence of the right to abortion being needed in order to experience equality or liberty in the 19th century or before.
DT: Let’s pause the tape here for a moment. So in the 1700s, abortion was socially frowned upon, but it wasn’t typically illegal. And it wasn’t talked about very much, either. Justice Samuel Alito is what people call an originalist. That means he’s a jurist who cares about what the Constitution’s authors might have been thinking at the time. But Karissa’s point is they weren’t thinking about abortion because abortion wasn’t in the mind of any legislators, anywhere. Abortion was something that happened outside the scope of law entirely.
Now let’s move from the 1700s to the 1800s. Alito points out in his leaked draft that throughout the 1800s, more and more states started to make abortion a crime. And he’s right, but it’s important to understand how abortion became a crime. And to do that, we have to understand a fundamental idea called quickening.
KH: At the nation’s founding, abortion was not illegal, was not considered criminal if it occurred before quickening, quickening being the moment a woman first feels the fetus move in the womb. And again, technology is really important to this entire story. There were no ultrasounds. There was no such thing as a pregnancy test that one could take. So the public depended on a woman asserting whether or not she felt the fetus move. So a woman had an incredible amount of control over how the public viewed her decision to have that abortion or not.
DT: These abortions before quickening were sometimes called “restoring menses.”
KH: And historians don’t have to work hard to show that this happened all the time. Popular magazines, newspapers advertised all sorts of powders and herbs and products that women could take to restore their menses. Like that’s how uncontroversial it was. The only time that individual states got involved and had criminal investigations or even a prosecution were those post-quickening abortions, and in almost all cases, the only reason the state knew about the abortion was because the woman had died.
DT: This is 19th-century medicine we’re talking about here. Modern surgery was still decades away. That means that many laws designed to criminalize abortions were primarily intended to criminalize quacks, charlatans, male doctors who were killing women.
KH: The motivation wasn’t to protect fetal life, the motivation wasn’t to punish women for exerting this choice. Those early laws passed in the 1810s, 1820s, 1830s were all about protecting women from dying.
This excerpt was lightly edited for clarity.
Host: Derek Thompson
Guests: Karissa Haugeberg and Mary Ziegler
Producer: Devon Manze
Subscribe: Spotify
