19 Sep The Pro-Choice Founders (!) of The Republic
“Historical accuracy”– powerful fighting words.
I’m gratefully indebted to Sarah Hougan Poggi (an obstetrician) and Cynthia A. Kierner (an historian) for their July 19 article in The Washington Post, and to another article in the Freedom from Religion Foundation newspaper, for the information below, which was derived from both sources.
The basic premise of Supreme Court Justice Samuel Alito’s draft opinion and then eventually written majority opinion in Dobbs vs Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” (I argued in a blog at that time that this must mean we should all welcome the reestablishment of slavery as an institution, since enslavement was certainly “deeply rooted” in our history and traditions.) Alito’s evidence that abortion had always been considered a criminal act and thus something the Constitution should never protect, consisted of a single criminal case prosecuted in 1652 in the (Roman Catholic) colony of Maryland. He then leapt ahead to laws that certain states enacted, mostly in the mid to late 19th century, to criminalize the procedure. It was a shoddy and superficial survey of abortion in early America, and was totally incomplete, especially because it ignored the history of abortion in the years in which the Constitution itself was drafted and ratified.
In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” the moment the pregnant woman first feels fetal movement, a highly subjective milestone that usually occurs around 16 to 22 weeks of gestation. Yet even after quickening, few people were ever prosecuted for abortion, let alone convicted – and Alito’s opinion offered no evidence of this contradiction. The reason was simple: in the early Republic, abortion was a private matter, not a cause for a public concern. Nor was abortion considered a criminal act.
Contrary to Alito’s assertions in Dobbs, three Founders of the Republic, all from Virginia – Thomas Jefferson, Patrick Henry, and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion had been discovered.
The story is fascinating, particularly in light of the current Court’s extreme conservative emphasis on “originalism,” the determination to make judgements based only on the “original intent” of the Constitution’s Framers and Republic’s Founders.
In 1792, unwed 18-year-old Nancy Randolph, a relative of Jefferson’s, was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, which was fittingly named “Bizarre.”
In September of that year, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, came to visit. She found Nancy unwell, and unwilling to undress in front of her. Martha believed Nancy was pregnant, and so she recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On returning home, in fact, Martha even sent the herb to Nancy and reminded her that it could “produce an abortion.”
Two weeks later, Richard, Judith, and Nancy visited the home of their other cousins Randolph and Mary Randolph Harrison. (The Jeffersons and Randolphs — among the first families of Virginia — often intermarried at that time.) During the visit, Nancy appeared ill and retired early, waking with a scream in the middle of the night. The next morning her bedclothes were bloody. Randolph Harrison saw blood on the stairs and noted Nancy’s “considerable paleness, and a disagreeable odor.” When an enslaved man found what appeared to be a white fetus on a wood pile, rumors spread throughout the community of enslaved people to whites of all classes, and quickly reached Philadelphia. From there, Jefferson himself wrote and expressed sympathy for Nancy in a letter to his daughter Martha, declaring: “I see guilt but in one person, and not in her,” meaning the blame was to be assigned to her brother-in-law, Richard — also a relative of Jefferson’s.
The general public believed Richard had impregnated his sister-in-law which, by the way, was incest under Virginia law — and also believed that he had murdered a living infant. Richard asserted his innocence in a letter to the newspaper, a letter still extant. But it had little effect. Facing mounting pressure, he surrendered to the county sheriff, and was charged with “feloniously murdering a child delivered of the body of Nancy Rudolph or being accessory to the same.”
Medically, five pieces of evidence suggest that what happened was not the murder of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortifacient: guaiacum. Second, witnesses reported her enlarged abdomen, though not with a full-term pregnancy. Third, Nancy’s brief cries were more consistent with latent labor than active labor. In the former, the cervix dilates to 4 to 6 centimeters, sufficient for passage of a 1 to 2 pound fetus. At full-term, painful active labor achieves 10 cm dilation with pushing efforts. Fourth, no infant cry was heard suggesting pre-viability outside the womb. And later, Nancy delivered a son at term, indicating she had no risk factors for second-trimester miscarriage such as uterine or cervical anomalies. Altogether, the evidence supports the conclusion that Nancy ingested herbs to induce a second-trimester abortion, and that her effort was successful.
In 1793 Richard appeared before a tribunal of county judges — similar to an inquest or a grand jury — who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled an impressive team: Patrick Henry, a charismatic litigator and former governor famous for his “give me liberty or give me death” speech; John Marshall, a rising star and future US Supreme Court Chief Justice; and William Campbell, the US attorney for Virginia.
The evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrison home. Marshall recorded the testimony of Martha Randolph (Jefferson’s daughter, remember!) that Nancy had been pregnant and that she, Martha, had delivered the herb to her, noting that the gum of guaiacum was “designed” for producing an abortion. Notably, Marshall did not describe this as a crime. No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening, and these three stellar lawyers engineered Richard’s release. The freeing of a wealthy white male with great lawyers was hardly surprising, but what was remarkable, and relevant to today’s debates, is that evidence of unintended abortion was discovered in an unwed, unpropertied woman, and not fully investigated or acted on. Nancy would later on admit that she had in fact been pregnant, yet neither she nor her accomplice — Jefferson’s daughter Martha! — were ever charged.
Abortion was later criminalized in Virginia and certain other states in the 19th century, and the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade in 1973, that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in affect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today.”
Although Marshall’s notes on Commonwealth vs. Randolph are extensive, this episode is poorly documented in the county-court records, and no formal case law was generated. Regardless, the episode begs examination since it involved key Founders of the Republic who occupied vastly different positions on the political spectrum, nationally and in Virginia: Marshall, the federalist, believed in a strong national government and the sanctity of law; Jefferson mostly supported a decentralized system and individual rights; Patrick Henry was an archconservative religionist and a populist. Yet all three agreed that abortion was a private matter, not a criminal act worthy of further investigation and prosecution. Remarkably, Nancy went on to marry Gouverneur Morris of New York, an influential signatory of the Constitution, who himself was well aware of her backstory.
So this tale demonstrates that the concept of abortion as a private matter in fact was “deeply rooted” in the minds of our nation’s Founders. If intent lies at the heart of originalism, why then, in this case we must all be originalists! Perhaps all it might require is some enterprising attorney initiating a well-publicized lawsuit?