Judge Samuel Alito’s Abortion Ruling Hits History


Maurizio Valsania

University of Turin / The Conversation

Judge Samuel Alito seems fascinated by the 19th century.

In Dobbs v. Jackson Women’s Health OrganizationAlito’s written decision reversing 50 years of constitutional protection of women’s right to abortion, he deploys arguments based on several historical precedents. He regularly uses the expression “history and tradition”.

But for Alito, the 19th century looks like the real golden age: “In 1803, the British Parliament makes abortion a crime at all stages of pregnancy and authorized the imposition of severe penalties.

He continues again and again: “In this country, in the 19th century, the vast majority of states enacted laws criminalizing abortion at all stages of pregnancy.

“By 1868, the year the Fourteenth Amendment was ratified,” Alito concludes, “three-quarters of the states, 28 out of 37, had enacted laws making abortion a crime.”

But in his rather selective forays into history, Alito does not ask himself what for me, as a historian, constitutes a set of fundamental questions: Why was abortion finally criminalized at that time? What was the general cultural and intellectual context of this period? And, more importantly, is there anything special about the 19th century?

When it comes to women’s bodies and abortion, the 19th century saw a decline in the confidence and power of women themselves.

18th century woman: active and in control

To begin with, the judicial authorities of the 17th and 18th centuries Edward Coca, Matthew Hale and William Blackstone had all advocated or condoned abortion. They only worried when the procedure was done after “acceleration”, the moment when the mother realizes that the fetus is moving in her wombaround the fourth month of pregnancy.

As a medical procedure, abortion was widespread in colonial and 18th century America. Using more or less safe techniques, midwives and doctors practiced several types of operations
on their patients. The woman could easily die, of course; but when she sought an abortion, no social, legal or religious force would have blocked her.

Also, a woman could choose from many available remedies rather than undergoing an operation. From the juniper bushes, “save,” Where sabina juniper, was one of the most popular abortifacients. Other herbs and concoctions were taken in the same way: pennyroyal, tansy, ergot, Seneca snake Where cotton root bark.

Benjamin Franklin inserted an abortion recipe in a popular textbook he reissued in Philadelphia in 1748. It caused no scandal.

The truth is that the founders of America, along with their contemporaries, had a rather democratic understanding of the female body. They believed that women, physiologically speaking, were not qualitatively different from men; the two sexes were equal and complementary.

The composition of men and women, according to doctors, was identical essentially – the only difference was anatomical, in that the male sex organs were more distended externally than the female organs.

Like the male, the female was considered to be in full control of the functioning of her physiology, including her sexuality. It was believed that both man and woman should achieve orgasm, better if simultaneously, for pregnancy to ensue.

This made 18th century men attentive to satisfying their female partners, albeit for utilitarian reasons.

Especially when sex was aimed at procreation, the woman had to be as active as the male partner. The 18th century woman was active and controlling. She trusted her bodily sensations, including her pleasures.

And above all, only she could detect if the acceleration had taken place in her belly. Therefore, she could tell immediately if terminating a pregnancy at any given time was acceptable. Or if it was a crime.

19th century woman: weak and chaste

The 19th century changed all that. The understanding of the physiology and mechanisms of the female body is undergoing a profound transformation. European and American physicians now saw women as essentially different from men: from a “one-body” model, medical discourse shifted to a “two-body” model.

Women’s level of self-determination has decreased as a result. Suddenly, they were not only weaker or softer than men, but also inherently passive. Instead of being encouraged to have sex, actively and vigorously, 19th century women were should be removed.

They were thus recast as pure, chaste and modest. Praiseworthy women were virgins, wives, mothers. Either they were prostitutes, almost criminals, which reflects the Victorian dualistic mindset. Instead of being told to trust acceleration and other physiological events occurring in her belly or vagina, the honest woman had to trust her doctor.

Anti-abortion campaigns began in earnest in the mid-19th century. They were led primarily by the American Medical Associationfounded in 1847, and were fundamentally anti-feminist. They chastised women for avoiding the Victorian “self-sacrifice” expected of mothers.

Anti-abortion campaigns have been targeting midwives and attempting to discredit women’s direct experience of pregnancy. The male doctors claimed pregnancy as a medical field – a domain that belonged exclusively to them.

Based on women’s own bodily sensations – not a medical diagnosis – acceleration was denigrated. Acceleration, of course, has made doctors dependent on women’s self-diagnosis and judgment. Dr. Horatio R. Storer, the leader of medical campaigns against abortion, described the acceleration as “in fact but a feeling.” In such a context, it could no longer be framed as the basis from which all moral, social and legal norms emerged.

In the Dobbs decision, Alito states: “The Court finds that the right to abortion is not deeply rooted in the history and tradition of the Nation. It is a historical fact: the protection of the right to abortion did not exist in America before Roe.

But it’s also an incomplete picture of the full story. The criminalization of abortion, as well as the decentralization of the woman’s experience, as well as the medicalization of her feelings that led to this decision, are facets that belong to the bygone nineteenth century.

No American lives in this century anymore – not even Judge Alito.

Maurizio Valsania is a professor of American history at the Università di Torino, who has published 3 books on Thomas Jefferson (University of Virginia Press), and is working on a new biography of George Washington.

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