Musings about upcoming restrictions on abortion in many US states have been rampant, since the leak of the Supreme Court of the United States (SCOTUS) draft majority opinion regarding a Mississippi abortion case. This is a draft opinion authored by Associate Justice Samuel Alito that, unless modified dramatically, will overturn the 1973 Roe versus Wade decision that established the right to abortion in all US states. Specifically, Roe v Wade established the trimester framework, giving women full control over the decision on terminating pregnancy during the first trimester and giving states the ability to regulate abortion during the second trimester for the sake of protecting pregnant women and the ability to restrict third trimester abortions. Later, the Casey versus Planned Parenthood of Southeastern Pennsylvania decision of 1992 severely weakened Roe v Wade by undoing the trimester framework, but it preserved an idea called fetal viability. This is the idea that there is no point in restricting abortion prior to the time that a fetus would be viable —able to survive— outside of the womb. While trimesters and fetal viability are modern concepts, people of the past did have an understanding that pregnancy was a time of development, that the entity developing within the womb differed greatly at different points in the pregnancy.
This is important, because the draft decision by Alito makes a big deal of the idea that laws have restricted abortion throughout US history. Yet it fails to mention that for most of the history of colonial America, the early period of the United States, and for Europeans prior to colonization of the Americas, abortion was not restricted throughout pregnancy, but just during the later stages. Rather than viability, which is based on fetal lung function and which people of the past had no way of measuring, people of the past marked a time in pregnancy called quickening. This is the point at which the mother begins to feel the fetus’ kicks. Importantly, it can be reported, only by the mother. This meant that women in early America actually had a good deal of control over the decision on how to handle an unwanted pregnancy, since they could tell their midwives that they did not yet feel quickening, if they wanted the midwives to attempt to end the pregnancy. They didn’t have very reliable or safe methods to end the pregnancy in those days, but on occasions when midwives would succeed in ending a pregnancy prior to reported quickening, the procedure was often called “restoration of menses”. This suggests that early pregnancy was regarded principally as a time when a woman would stop menstruating. This was something that she need not reveal to the outside world.
Looking at the emergence of early laws against abortion in the United States, the first law, passed by Connecticut in 1821, was triggered initially by a sex scandal involving a preacher. However, the law was also motivated by an idea that herbal agents prepared by apothecaries to induce abortion were poisons that could harm the woman. Just a little bit later, in 1829, New York state passed a law that made abortion a felony if performed after the point of quickening, but a misdemeanor if performed prior to quickening. This implies some concern for a later fetus as opposed to an early fetus, or an embryo, but this and other early laws also expressed concern for protection of the mother. Such concerns for the mother derived from the fact that herbal agents that midwives obtained from apothecaries actually could be quite dangerous. They could be actual poisons, or they might induce an abortion with no guarantee that the products of conception would all come out, thus making infection possible. So even with 19th century laws recognizing differences between different parts of the pregnancy, even given the danger of childbirth, abortion also was not a safe thing to do.
Today, it is the opposite. Particularly during the first half of pregnancy, getting an abortion from a professional is always safer than carrying a pregnancy to term. Pregnancy and abortion are both very safe, but statistically, you are more likely to die from carrying a pregnancy to term and giving birth than from an abortion. In contrast, back alley abortions —abortions performed by the wrong people under the wrong conditions, as was common prior to the Roe v Wade decision— are very dangerous. This is due, mostly to inadequate regard for, or capability to prevent, hemorrhage and infection and to achieve incomplete removal of the products of conception from the womb. As we discussed in the opening article of the three-part series on Roe v Wade, one of the young lawyers working on the Roe case, Sarah Waddington, daughter of a Methodist minister, had become pregnant during her final year of law school and had undergone an abortion in Mexico that she felt fortunate to have survived. For a woman living in Texas in the late 1960s, traveling to Mexico was actually a cheaper option than traveling to a distant state where abortion was legal, or paying for a psychiatrist write a referral saying that the pregnancy made the woman a danger to herself, then taking that referral to a sympathetic gynecologist, who would perform the abortion.
By the early 20th century, even by the late 19th century, the specialties of surgery and obstetrics were well advanced enough for a doctor with proper training to carry out an abortion without hemorrhage and keeping the risk of infection at minimum. With antibiotics fully online by the middle of the 20th century, infections could be easily prevented and managed, so medicine had all of the means to provide safe abortions to anybody. This means that from that point onward, the issue was debated purely in terms of law and ethics.
