Wednesday, May 4, 2022

Opinions We Never Finished Reading. II


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Question to Radio Yerevan: Is it true that the right to abortion was "was entirely unknown in American law"? And that "Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy"?

Yes, but 

  • first of all, so was the right to stop women from voting (women could vote in several of the 13 colonies, but it was explicitly forbidden in all state constitutions by 1807)—men just did it without asking whether they had a right to do it or not;
  • second of all, it wasn't clear that women had any rights at all, since, as Justice Alito might say, the word "woman" doesn't appear anywhere in the Constitution; the "inescapable conclusion", as Alito might say, is that the existence of women is "not deeply rooted in the Nation's history and traditions", and not a matter on which the federal judiciary should speculate; and
  • third of all, while it's quite true that abortion "at all stages" (i.e., both stages, before and after "quickening") was criminalized in 26 states at the time the 14th Amendment was adopted in 1868, abortion providers plainly had a right to perform abortions before those laws were passed—it had to exist in order for the legislatures to take it away—and Alito's text doesn't say when they were passed: how "deeply rooted in the Nation's history and traditions" was the states' right (unenumerated in the Constitution but presumably guaranteed by the 10th Amendment) to stop women from terminating their pregnancies?

Helpfully, Alito does offer an appendix with dates and texts for all the original anti-abortion laws in all the states and territories, down to Mississippi in 1952 (really late to the party, as you might expect), and that gives us some kind of clarity on these matters.

The first two such laws, in Missouri (1825) and Illinois (1827), are actually poisoning statutes, with abortion provisions tacked on, both in almost identical language:

every person who shall wilfully and maliciously administer or cause to be administered to or taken by any person, any poison, or other noxious, poisonous or destructive substance or liquid, with an intention to harm him or her thereby to murder, or thereby to cause or procure the miscarriage of any woman then being with child, and shall thereof be duly convicted, shall suffer imprisonment not exceeding seven years, and be fined not exceeding three thousand dollars.

The first law tied to abortion primarily is New York's (1828), and it has some particularly interesting details:

Every person who shall administer to any woman pregnant with a quick child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.

Note the reference to the fetus being "quick", i.e. perceptibly moving (typically around 18 to 20 weeks, a bit less in a second or third or later pregnancy). That was eliminated in a revision of 1836. Missouri, in contrast, added different penalties for the termination of quick and pre-quick pregnancies, in 1835. Note also the omission of "wilfully and maliciously" or variant thereof. Instead the text offers formal exceptions: the abortion is not illegal if intended to save the mother's life or as authorized for that purpose by two physicians. What's up with that? I'll get to that presently.

Next up is Ohio (1834):

Be it enacted by the General Assembly of State of Ohio, That any physician, or other person, who shall wilfully administer to any pregnant woman any medicine, drug, substance, or thing whatever, or shall use any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.

With a sentence of one to seven years if the fetus is quick. Don't know if the physician in the first clause can be one of the physicians in the second clause, but it looks like sloppy writing. It's funny how much the formulations resemble each other from one state to the next, as if there were some 19th-century ALEC helping them out.

And Indiana (1835), and then a long pause before an uptick in tempo with Maine (1840), Alabama (1841), Massachusetts (1845), and Michigan and Vermont (both 1846).

Something some of those first cases have in common is that they all took place in states where active professional organizations for physicians were established early: the Massachusetts Medical Society was the very oldest, founded in 1781; the Medical Society of the State of New York founded in 1806, the Ohio Medical Association in 1835 (founded "to lobby the Ohio legislature to establish a state hospital for the mentally ill and a school for the blind"), and the St. Louis Medical Society in 1836 (the year Missouri's abortion law was revised). These societies, climaxing with the national organization of the American Medical Association were also very much concerned with setting up licensing requirements for medical practitioners and discouraging quacks and frauds, and that would obviously include the informal medical practice of "wise women" (sage-femme is French for "midwife"). 

This is exactly now the criminalization of abortion in the United States took place, as we learn from C.E. Joffe , T.A. Weitz, and C.L. Stacey (2004) "Uneasy allies: pro-choice physicians, feministhealth activists and the struggle forabortion rights":

The American Medical Association (AMA), formed in 1847, quickly made the criminalisation of abortion one of its highest priorities, a move based not on moral objections to abortion, but rather because the issue served so well as the centre of the new organisation’s professionalising project (Starr 1982). Because abortion provision in the 19th century drew so heavily on nurses, midwives and other ‘irregular’ healthcare providers, mobilisation around this issue provided a highly suitable vehicle to differentiate ‘regular’ or ‘elite’ physicians from the wide variety of other groups also making claims to be legitimate healthcare providers in that period (Mohr 1978, Luker 1984). 

The goal of the AMA campaign, however, was not simply to ban all abortions. Rather, the ultimately successful AMA position was that physicians should control the terms under which any ‘authorized’ abortions took place. By 1880 all states had regulated abortion but many states continued to permit abortions when there was a threat to the life of the mother, or a serious threat to her health as determined by a physician (Mohr 1978).

The same strand of thinking is still very much alive in the anti-abortion movement in state legislatures today, with their focus on the alleged "dangerousness" of abortion procedures, the need for practitioners to be affiliated with hospitals, and so on; the idea that if an abortion had to be performed, it had better be performed by a licensed physician, who until quite recently would almost always have been a man. 

So we see, anyway, that the state laws against abortion that began to be passed half a century after US independence, far from showing that abortion rights are not "deeply rooted" in our nation's culture (unless you mean exclusively the culture of men), really demonstrate that they were systematically eradicated in an attack on the ancient tradition of women practicing medicine for women, meant to enhance the prestige and monopoly power of the mostly male medical lobby, and with the consequence that adequate women's healthcare came to be reserved for women of the middle and upper classes who could afford doctors with medical school training, and abortion, eventually, crowded into the genuinely dangerous back alley, except for women wealthy enough to sail to Europe. And the ALEC was the AMA. All Alito's research does is to push the beginnings of this campaign back into the 1830s.

Part III here.

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