Aborting history - abortion activism

National Review, Oct 23, 1995 by Ramesh Ponnuru

Last, they cite pages 119 - 121 of Angus McLaren's Reproductive Rituals to claim, "Even in cases involving brutal beatings of women in the late stages of pregnancy, common-law courts refused to recognize abortion as a crime, independent of assault upon the woman, or in one case 'witchcraft."' Neither the cited pages nor any other pages of McLaren's book contain anything to support this proposition. On page 121, McLaren notes that "it is necessary to turn to the writings of the common-law advocates" to understand the legal status of abortion between 1650 and 1800; after examining a few of these writings, he summarizes, "Seventeenth-century jurists thus recognized that a woman could be charged with procuring her own abortion, but only after the foetus had quickened."

The historians next assert that abortion "was not uncommon in colonial America." They cite McLaren as the sole support for this astonishing statement. But his book deals with England, not America. The cited chapter contains just one quote on the prevalence of abortion -- by an Englishman, in 1824, referring to the impressions that led Parliament to pass an anti-abortion law in 1803.

The extremely high birthrates of the time and the danger and ineffectiveness of contemporary methods of abortion suggest that it was uncommon. So does the high proportion of brides who were pregnant on their wedding day, a datum the brief oddly adduces in support of its contention. In Intimate Matters, John D'Emilio and brief signatory Estelle B. Freedman list coitus interruptus, prolonged nursing, and abstinence as methods used to limit family size in colonial America, adding that "other means to impede conception or terminate pregnancy were rarely employed."

The brief then turns to the claim that the abortion laws between 1820 and 1860 were aimed at maternal safety. According to the brief, New York lawmakers sought to protect women from dangerous medical treatment when they passed abortion regulations in 1828 --a claim first made in another influential article by Means. His argument hinged on a proposed, but never passed, section of the bill that would have outlawed any surgery not necessary for the preservation of a patient's life. The sections regulating abortion contained similarly worded exceptions allowing abortions to save a pregnant woman's life; hence, he reasoned, they too were intended to prevent unnecessary operations from endangering lives.

Mohr's book explicitly refutes these arguments. If lawmakers had wished to regulate abortion merely as a dangerous form of surgery, they would neither have treated it separately nor have passed abortion regulations while defeating the proposed regulations on all surgery. The brief also reports that the "act finally adopted applied only to surgical abortion"; but a glance at the text of the law, correctly quoted by Mohr, reveals that it applied to abortions by "any medicine, drug, substance or thing whatever, . . . any instrument or other means whatever."

The historians next examine the alleged motives for the laws enacted from the mid nineteenth century onward, starting with the desire of the "regular" physicians associated with the new American Medical Association to raise their status and incomes through regulation. The brief, in a passage relying on Mohr, describes the physicians' movement against abortion as "one chapter in a campaign by doctors that reflected a professional conflict between 'regulars' (those who ultimately became the practitioners and proponents of scientific medicine) and 'irregulars,' who were often willing to perform abortions." Mohr lists three professional motives for the regulars' support for anti-abortion laws: such laws enlisted the power of the state to penalize, and to remove a competitive advantage of, the irregulars; they enforced standards on wayward regulars, thus "promoting a sense of professionalism"; and they let doctors "recapture what they considered to be their ancient and rightful place among society's policymakers and savants."