The Supreme Court’s looming decision to overrule Roe v. Wade has compelled all sides in the abortion debate to seek answers in the past.
Just as Justice Harry Blackmun leaned heavily on history in his landmark 1973 ruling legalizing abortion nationwide under an implied right to privacy in the Constitution, Justice Samuel Alito’s leaked draft opinion that would overturn Roe points to the past for its reasoning.
In this episode of History As It Happens, historians Anna Peterson and Eric Foner discuss an era when abortion was unregulated.
Abortion had been commonplace in colonial America, and in the early stages of pregnancy it was not controversial, Ms. Peterson said. “Both the law and the medical profession relied on women’s bodily experiences to tell them if a pregnancy had in fact occurred.”
Before women felt “quickening” – the first movements of a fetus – ending a pregnancy was not considered abortion under the common law, according to an amicus brief filed by the American Historical Association in the current case, Dobbs v. Jackson Women’s Health Organization. This began to change in the mid-19th century with the rise of abortion restrictions and an anti-abortion crusade by Dr. Horatio Storer.
At about the same time states began passing laws outlawing abortion in the early weeks of pregnancy, the United States was recovering from the Civil War. In 1866, Congress passed the 14th Amendment, guaranteeing “any person” due process and equal protection of the laws. A little more than a century later, the amendment provided the basis for Roe.
The 14th Amendment is “part of a general effort on the part of Congress, to use a modern phrase, to do regime change,” said Mr. Foner, the author of “Reconstruction: America’s Unfinished Revolution.”
Congress, then dominated by Republicans, saw the amendment as the way to stop former Confederates from re-establishing power by trampling on the rights of Black people. But beyond the amendment’s express concerns, it also established broad principles protecting personal liberty – or at least that is how some 20th century jurists saw it.
Listen here to historians Anna Peterson and Eric Foner in this episode of History As It Happens.
