Reproductive Rights and Original Intent
The politics of abortion illustrate well the dilemmas faced by historians who engage in legal advocacy. Ever since the Supreme Court established a limited national right to abortion in Roe v. Wade (1973), a battle over reproductive policies has intensified in American politics. In the courts, lawyers have repeatedly turned to historical research to establish either a right to abortion or grounds for its criminalization. In the landmark 1973 decision, Justice Harry Blackmun’s opinion in support of abortion rights drew on the available “medical and medical-legal history” to determine “what that history reveals about man’s attitudes toward the abortion procedure.”6 Since that decision, the historical literature on abortion in America has expanded, as have legal challenges to Roe and the use of history in legal advocacy.
In an effort to limit the effects of Roe, conservative state and federal legislators imposed restrictions ranging from laws requiring parental consent for minors seeking abortions, to mandatory waiting periods, to limitations on state funding for the procedure. In the 1980s, for example, Missouri legislators banned non-life-saving abortions in public hospitals (regardless of the patient’s ability to pay). In response to this law and as part of a broader legal strategy to defend Roe, advocates of reproductive rights challenged the constitutionality of the Missouri statute, and they turned to historians at the appellate level to support their case in Webster v. Reproductive Health Services.
A key actor in bringing historical research to reproductive policy, Sylvia Law, had become aware of the Supreme Court’s use of history in civil rights cases. A feminist and professor of law at New York University, Law conceived of a historians’ amicus brief urging the Court to reject the Missouri ban in 1988. Realizing that the government’s case against abortion cited recent historical research by James Mohr, Law hoped to counter the misuse of his work. In early 1989, she convened a group of scholars with expertise on reproduction, sexuality, and social policy to help draft a brief. Once the Court agreed to hear Webster, a larger group of about a dozen scholars commented on successive versions of a document drafted by Law and attorneys Clyde Spillenger and Jane Larson.7 Within two months, they produced a thirty-page brief that carefully recounted the legal status of abortion in the American colonies, the social context for its criminalization in the late nineteenth century, and the relatively recent appearance of anti-abortion arguments concerning fetal life. The brief circulated among historians, and by the time of the decision, over 400 scholars had signed it.8
In 1989, the Supreme Court ruled in Webster v. Reproductive Health Services, by a five to four vote, to uphold the Missouri law limiting access to abortion. They failed to overturn Roe, however, in part because Associate Justice Sandra Day O’Connor, who issued a separate concurring decision, did not join the decisions of the four other justices voting in the majority, which would have taken the case further to reconsider the issue of state protection of the fetus.9 Although the ruling upheld restrictions on abortion, Sylvia Law concluded that the historians’ brief had succeeded in “having precluded the Court from using history in a shallow and deterministic way.”10 It also set a precedent for collaborations between lawyers and historians to influence the Court.
The apparent unity of purpose among the hundreds of historians who opposed Webster did not necessarily imply a unity of historical interpretation. Reading the successive drafts of the brief, I often disagreed with particular arguments.11 when I voiced my criticisms to Professor Law, she treated them with the greatest respect and incorporated most of them into revisions of the draft. While I felt satisfied enough to sign the brief and to urge others to do so, I remained intellectually frustrated by the need to simplify and the intense time deadline, which precluded careful historical debate. (The revision process seems even more impressive in retrospect since we were communicating through the mailing or faxing of hard copies rather than by e-mail.)
I had no qualms with the major argument in the historians’ brief that prohibitions on abortion had been enacted only since the late nineteenth century. My chief reservations concerned the opening section of the document, which tried to establish “original intent.” It is important to keep in mind the context for this approach, namely, the political and legal culture of the 1980s, when conservatives insisted on a strict originalism as a constitutional standard. Attorney General Edwin Meese, among others, was insisting that “the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.”12 Even though the Constitution never mentioned abortion, opponents of the procedure argued in defense of the Missouri statute — and with an eye to overturning Roe — that the original intent of those who wrote the Constitution was to outlaw it. In response, those advocating the right to abortion held that the Constitution had incorporated a tolerance for abortion. In large part, they based their defense of abortion on the constitutional right to privacy and the Ninth Amendment’s assurance that individuals retained all rights not specifically enumerated in the Constitution. In addition, the lawyers working on the Webster brief sought historical evidence to show that an implicit right to abortion existed in America at the time the Constitution was written.
It seemed to me both possible and reasonable to show that abortion before “quickening” — when a woman first felt the fetus move — had not been illegal at the time of the writing of the Constitution and had remained legal during much of the nineteenth century. I had qualms, however, about maintaining that eighteenth-century legal thought incorporated an implicit right to abortion. More generally, I worried about seeking an eighteenth-century constitutional justification for twentieth-century social needs. For one thing, I felt that historical studies, building on modern constitutional theory, should illuminate the ways in which the law has responded to historical change, not simply the ways that historical precedents justify a particular legal interpretation. The original-intent argument, however, was a strategic response to the static argument of opponents of Roe that “unmitigated hostility” to abortion ran throughout our history. Although that statement was deeply flawed, I remained uncomfortable about refuting one static historical interpretation with another. Having to rely on less than definitive evidence — such as the silence about abortion in the Constitution and assumptions about its use in the eighteenth century— in order to make a case for either unmitigated tolerance or unmitigated hostility meant overlooking more nuanced interpretations of the changing meaning of family limitation over the course of U. S. history.
In Webster, the original-intent argument appeared most boldly in the first draft of the historians’ brief. The title of Argument II read, “For the original constitutional framers abortion was an unremarkable and legitimate part of the fabric of ordinary social life.” During the drafting of the amicus brief, I took issue with that statement, and the revised title read, “At
the time the federal constitution was adopted, abortion was known and not illegal.” Nonetheless, the text claimed that “abortion was not uncommon in colonial America.” As evidence, the brief called midwives’ prescriptions of abortifacients “routine.” It also stated that in the 1780s, “at the same time our founders drafted the Constitution, including the Ninth Amendment’s guarantee [of unenumerated rights] . . . the use of birth control and abortion increased” (8).
Despite evidence about the use of abortifacients in the colonial era, I would hesitate to argue that abortion was “not uncommon,” given the strong economic and religious motives for childbearing within families. In the colonial era, most families relied on neither contraception nor abortion because they hoped to procreate, whether for economic or religious reasons. Moreover, both sermons and court cases condemned not only nonprocreative sexual practices (such as masturbation, bestiality, and sodomy) but also efforts to destroy the fruits of sexual intercourse. The most widely used means to do so, according to court cases, was infanticide, probably more effective than the herbal abortifacients used at the time. Single rather than married women had the strongest reasons for resorting to infanticide. Despite individual efforts to avoid pregnancy, however, the high fertility rates of over eight children per married woman suggest that in seventeenth – and eighteenth – century America, women did not rely on abortion to limit family size. Yet the brief juxtaposed the falling birth rates in the 1780s with the statement that “at the same time our founders drafted the Constitution, including the Ninth Amendment’s guarantee that the enumeration of certain rights ‘shall not be construed to deny or disparage others retained by the people,’ the use of birth control and abortion increased” (7-8).
Behind that statement lies a more complex history. The demographic record reveals that even though pre – and extramarital sexual activity did increase in the late eighteenth century, the rise of both “early marriages” (bridal pregnancies) and illegitimate births suggests — by the very nature of the evidence — that sexually active unmarried couples did not use abortion. They married precisely because of pregnancy. At the end of the eighteenth century, marital fertility rates did begin their long-term decline, but it was too limited at the time of the constitutional convention to indicate any widespread use of abortion. In short, at the time of the framing of the Constitution, abortion was not subject to public debate in large part because economic and social conditions — particularly the centrality of reproductive family life — discouraged its use. Given this history, the founders may well have ignored, rather than accepted, abortion.
Over time, however, these conditions would change, making abortion more widespread and increasingly controversial. As the historians’ brief explained, in the nineteenth century, a growing commercial and industrial economy encouraged smaller family size, which necessitated greater efforts to limit births. Along with contraceptive use, reliance on abortions increased, especially, James Mohr has shown, among married women.13 By 1900, average marital fertility rates fell to around four children (although the decline occurred later and more slowly among rural, immigrant, and African American families). The brief synthesized historians’ arguments that the criminalization of abortion in the late nineteenth century represented, along with a consolidation of medical authority, a response to a constellation of fears about white middle-class women’s rejection of motherhood. By the next century, fears about racially imbalanced birth rates contributed to the charge of “race suicide” leveled at elite white women.
During the century of criminalization, contraception and abortion did not disappear; they largely went underground, often at great personal risk to women and to some providers. Both practices would resurface in public view because of historical changes in the nature of work and family. Over the twentieth century, family limitation became more widespread, abetted by the birth control movement and necessitated by married women of all races entering the wage labor force. Women’s reproductive and economic choices went hand in hand. By the 1960s, the growth of dual wage-earning families who desired to limit and space births paralleled a shift in medical and legal support for decriminalizing abortion. Women’s changing roles as workers and mothers thus help explain the road to Roe; they also framed the initial opposition. Early anti-abortion activists mobilized women whose identities remained rooted in motherhood. Long before they employed claims about the personhood of the fetus, critics of abortion echoed nineteenth-century rhetoric about the value of maternity to American cultural stability/4
Given this historical framework, I wanted the Webster brief to argue more centrally that women needed reproductive choice in the late twentieth century not because of similarities with women in the eighteenth century but precisely because our lives differ from those of our forerunners, despite our shared reproductive vulnerability. The brief did in fact document the changing context of abortion law, and I agreed with those sections of it. I nonetheless questioned the overall strategy of relying so heavily on historic rights because this approach did not represent the full range of historical or political arguments. Aside from my qualms about the representation of late-eigh – teenth-century practices, it seemed evasive to claim abortion as an implicit original right without acknowledging, as Linda Gordon’s scholarship has shown, that late-nineteenth-century women’s rights advocates condemned the practice. For them, abortion symbolized an undue burden on women, who alone paid the price of unwanted pregnancies. Although the brief cited Gordon’s analysis of “voluntary motherhood,” it ignored the feminist opposition to abortion. Recently, however, this history has been used by some opponents of abortion as a precedent for their cause. In invoking this history, they adopt a static interpretation of feminism, ignoring the economic and political disparities that led earlier activists to insist on the fusion of reproduction and sexuality.15
A related political weakness in seeking original, implicit rights to abortion is highlighted by contemporary feminist critiques of reliance on a language of rights that reinforces individual, as opposed to social, responsibility for reproduction in order to defend reproductive choice. By accepting this “right,” we overlook the reasons why women need access to abortion, including inadequate contraceptive methods and research, unequal economic opportunities, and the lack of social services for mothers and children. All of these gender-based inequalities make childbearing and economic self-sufficiency incompatible for women. By arguing for abortion on the grounds of the right to privacy, I felt, the historians’ amicus brief in Webster necessarily oversimplified a range of theoretical (and practical) justifications for abortion and neglected a range of related political issues. It had to adopt a liberal feminist politics, emphasizing rights without reconsidering the historical changes, such as wage earning, that have made reproductive choices even more problematic than in the past for many womend6
Working on this brief complicated my notion of a usable past. Citing historical research to justify a legal interpretation can imply that past practice is more salient than current needs. This privileging of the past can be and often has been used for conservative ends, and the reverse — that change is more salient than historical precedent — may also be the case. Some elements of abortion history do provide telling precedents for current politics, though often as negative rather than positive models. For example, the history of abortion law illustrates how sex and reproduction have been manipulated politically, as both Mohr and Gordon have shown — whether to advance the authority of medical professionals or to justify state-sponsored eugenic projects that targeted African Americans, Native Americans, and Mexican Americans as well as the disabled. Learning from this history of sexual politics cautions us to be more careful as we reformulate reproductive rights. We should seek to make our policies undermine rather than reinforce
hierarchies of class, race, and gender. Along with such critical explorations of past practice, I felt strongly after the Webster brief, we need to foreground the changing social contexts in which we adjudicate the regulation of sexuality and reproduction.