The US Supreme Court is going to strike down the case that protects legal abortion in America. In a draft majority opinion leaked to Politico, Justice Samuel Alito argues that the Constitution does not mention abortion and that the 55 delegates who wrote it did not bring up any specific medical procedure. This is not true. The fact that this fundamentally wrong assertion even made it into a draft is a sign that the Supreme Court needs a lesson in history.
Abortion was not always a crime. In her 1996 book, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973, Reagan writes that abortion was legal under common law during the 18th and early 19th century. The criminalization of abortion took place almost 80 years after the Constitution was written. A Reconstruction-era sharecropper's wife would likely run into trouble trying to get a legal abortion, and a Founding Father's mistress could get one without fear of state punishment.
The social movement to ban abortion and punish doctors and patients is traced in When Abortion Was a Crime. Reagan shows how changing attitudes and beliefs about bodily autonomy and when life begins impacted pregnant women and the health care workers trying to help them, as well as how abortion laws were created, enforced, and dodged in the Chicagoland area. The majority of the book focuses on the century when abortion was banned in the United States, but it also offers a summary of customs and policies prior to its prohibition. Reagan writes that the common law's attitude toward abortion was based on an understanding of human development as a process rather than an absolute moment.
The vast majority of abortions were legal, and so they were seen as a matter of bringing on a period orstoring menses.
Reagan's chronicle of the past looks increasingly like a glimpse of the future as she reads on life during abortion bans. The American anti-abortion movement took off in the mid 1800s, leading to a cascade of laws banning abortions in the 1860s-1880s. Reagan shows how Storer used white supremacist ideas to argue that white babies would be replaced by other races if they were aborted. Storer was a propagandist for the Replacement Theory that was embraced by the American right. The Storer-led era of prohibition made abortions more dangerous.
The American Historical Association and the Organization of American Historians submitted a brief to the Supreme Court explaining the historical context. Reagan is not the only scholar to make the point that abortion was not always a crime. In 1800 no jurisdiction in the United States had enacted any statutes on the subject of abortion.
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