B. Franklin Update

 

Garden angelica as depicted in Köhler's Medizinal-Pflanzen, 1887, via Wikipedia

I was telling you how Benjamin Franklin, at the tender age of 23, was making fun of his ex-employer Samuel Keimer for accidentally publishing a kind of guide to self-induced abortions in his Philadelphia newspaper. 

A wonderful discovery from Molly Farrell at Slate is that 19 years later, in 1748, he published such a guide himelf, in all seriousness, as a public service, by tacking the Virginian John Tennent's The Poor Planter's Physician onto his pirate edition of a popular British how-to manual, The Instructor; Tennent's treatise included advice on how to deal with a missed period, the "suppression of the courses", a "common Complaint among unmarry'd Women", by treating it (a week before you "expect" to be missing it!) with angelica, also known as "bellyache root":

Franklin’s choice to get Tennent’s pamphlet into the hands of readers all over the colonies meant that anyone learning to read, write, and calculate with his book would also have access to the leading available treatment for ending a pregnancy. Tennent’s handbook prescribes angelica, an herb known to be an effective abortifacient in the early stages of pregnancy for thousands of years, and which was frequently recommended across early modern herbal books.* Moreover, the recipe refers to several herbal abortifacients known at the time:

For this Misfortune, you must purge with Highland Flagg, (commonly called Bellyach Root) a Week before you expect to be out of Order; and repeat the same two Days after; the next Morning drink a Quarter of Pint of Pennyroyal Water, or Decoction, with 12 Drops of Spirits of Harts-horn, and as much again at Night, when you go to Bed. Continue this 9 Days running; and after resting 3 Days, go on with it for 9 more.

Farrell connects the publication with Franklin's lifelong promotion of education for girl and women, especially in math (which was the main subject of The Instructor), as well as with the further evidence contra Alito of how "deeply rooted" abortion rights were in "our history and traditions" if your world was a world in which women had some autonomy . It's a lovely piece, with an illustration so good I don't want to steal it, just go read it.

Opinions: Postscript

Ruta graveolens, rue, meaning "repentenance", though as Ophelia says "we may call it herb of grace o' Sundays." Photo via BardGarden.

I found a terrific piece of actual scholarship, as opposed to bloggy poking around in the evidence, in support of my guesses on the legal status of abortion in early modern England, in Carla Spivack, "To 'Bring Down the Flowers': The Cultural Context of Abortion Law in Early Modern England", in William and Mary Journal of Women and Law XIV/1 (2007), which took on the 2006 book by Joseph Dellapenna that may well have been Alito's basic source, Dispelling the Myths of Abortion History, and its assertion that

contrary to Justice Blackmun's historic analysis in Roe, "abortion was considered a serious crime throughout most of European history" and that "courts did... punish abortions before quickening during the Middle Ages."

On the contrary, Spivack shows,

Opinions We Never Finished Reading. IV

Meanwhile, beyond the grim world of the witch killers Coke and Hale, there's evidence of more relaxed attitudes on both sides of the Atlantic, in some places that you might not expect at all. 

For instance, in 1729, around the same time as the prosecution of Eleanor Beare, a brand new newspaper, the Philadelphia Gazette, published by Samuel Keimer, was running a series of articles, presumably pirated, from a new English reference work, Chambers' Cyclopaedia, in alphabetical order, and apparently not paying enough attention to what he was issuing. It included a lengthy discussion of Abortion in the fifth number, which had been okay in a bound volume in England, but too explicit for the comfort of an American newspaper audience, reading a little like a how-to manual:

Anyway, none other than that first fearless American comedian-blogger, Benjamin Franklin, had a number of grudges against Keimer, who had given him his first job when he came to Philadelphia as a 17-year-old in 1723, and undercut his own plan to start a newspaper by founding the Gazette at the end of 1728. Franklin and some friends really intended to drive Keimer out of business, in a series of  satirical opinion columns published under the nym "The Busy-Body", in Andrew Bradford's American Weekly Mercury. He began, however, by mocking Keimer over the abortion article, in the following bogus letters to the editor of the Mercury:

Opinions We Never Finished Reading. III

 

Frontispiece from Matthew Hopkins' The Discovery of Witches (1647), showing witches identifying their familiar spirits for the Witch Finder. Via Wikipedia.

Hi, it's Stupid to criticize Justice Alito for citing a 17th-century jurist just because the jurist, Lord Edward Coke, happened to be an advocate of marital rape and had ordered women to be executed for witchcraft. After all, marital rape and the execution of witches are deeply rooted in our nation's history and traditions too! Besides, why should we suppose his views on these matters are even relevant in any way to his views on abortion?

Alito notes that

The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U.S. __, —_ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton's 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” H. Bracton, De Legibus et Consuetudinibus Angliae...

Although what Coke says, in fact, contra Bracton, is that it is not homicide, unless the child dies after being born, because while within the womb the fetus isn't really a person, a "reasonable creature", a thing in rerum natura, in the world of natural beings, and under the King's peace, that is a member of society:

Opinions We Never Finished Reading. II

 

Image from medievalists.net.

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.

Opinions We Never Finished Reading. I

GettyImages via The Independent.

Well, it took Politico and their sources about eight hours after I posted my prediction that the Supreme Court would not overrule Roe to publish the extremely strong indications that I was totally wrong, and you might forgive me for wondering if they did it just to humiliate me. 

Other than that, I am not at this time taking an interest in who the leaker of Alito's draft opinion, or whistleblower as the case may be. Effectively, the hullabaloo over the leaking might as well be meant to silence the discussion of the awfulness of the work, and I mean awfulness in every sense, from literary to legal, and that's what I'd rather be talking about, starting with Alito's opinion that

The right to abortion does not fall within this category [of unenumerated rights guaranteed by the Due Process Clause of the 14th Amendment]. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of “liberty.” Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

The "law now before us" being Mississippi's "Gestational Age Act", defining abortion as

the use or prescription of an instrument, medicine, drug, or other substance or device with the intent to terminate a clinically diagnosable pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the unborn human being, to terminate an ectopic pregnancy, or to remove a dead unborn human being.

and prohibiting all abortions after the "unborn human being" reaches the gestational age of 15 weeks, without the usual exceptions, where Roe allowed states to prohibit them after 24 weeks, and Casey after the age of "fetal viability". Although the whole thing is looking pretty moot because within ten days after the Mississippi attorney general determines that the Roe decision has been overruled by the Supreme Court, basically all abortions regardless of "gestational age" will be prohibited in Mississippi, under one of those "trigger" laws, passed in 2019

• (1) As used in this section, the term “abortion” means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.

• (2) No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape... only if a formal charge of rape has been filed with an appropriate law enforcement official.

with a mandatory sentence of 1 to 10 years for the provider. I guess they promoted the termination of an ectopic pregnancy from "not an abortion" to "preservation oof the mother's life" but for some reason they dumped the "unborn human being" category, perhaps because ALEC has stopped using the phrase? (Earliest cite I find in a quick search is from 1994, by Robert P. George of the American Enterprise Institute.)

But the Supreme Court, tasked with deciding on the constitutionality of the 15-week ban in the Gestational Age Act, has in fact stuck Mississippians with this one, like a cuckoo's egg, without arguing it at all.

And meanwhile, Alito has skipped over the contrast between "fetal life" and "unborn human being" and decreed without any argument at all that the latter is all you need to know, meaning he's decided in advance that abortion rights are fundamentally different because they are a right to murder (except in the case of an ectopic pregnancy, in which I suppose the reason the abortion isn't abortion is that it's in self-defense—that fetus is trying to kill her!), and there's no real reason to discuss it any further. But he does, all the same. for 90-odd pages. 

In the next installment, we'll be looking at "entirely unknown in American law" from a historical point of view.

Cheap shots 6/28/2013: Jesus laughed

Uncredited image via Ellen Haroutunian.

Stolen from Dr. Turk:

How bad are Samuel Alito's manners?

So bad even Dana Milbank can't come up with an example of how both sides do it. That's historic.

Incidentally, Ann Althouse (via Thers) explains that Alito's not actually being rude, just Italian-American: [jump]