A 1792 case reveals that key Founders saw abortion as a private matter

[LetMyPeopleVote]

Alito's only support for his opinion was a witch hunter who believed in/advocated for marital rape. Here is some authority that Alito was too stupid to find or use

Link to tweet

https://www.washingtonpost.com/made-by-history/2022/07/19/1792-case-reveals-that-key-founders-saw-abortion-private-matter/?pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJzdWJpZCI6IjM4MjMyODIzIiwicmVhc29uIjoiZ2lmdCIsIm5iZiI6MTY1ODU2MjA5NSwiaXNzIjoic3Vic2NyaXB0aW9ucyIsImV4cCI6MTY1OTc3MTY5NSwiaWF0IjoxNjU4NTYyMDk1LCJqdGkiOiI0MDZjNjg4ZC1hODI2LTQ0ZWMtOGQ2Zi0zNDAwMjI3NDhiNDAiLCJ1cmwiOiJodHRwczovL3d3dy53YXNoaW5ndG9ucG9zdC5jb20vbWFkZS1ieS1oaXN0b3J5LzIwMjIvMDcvMTkvMTc5Mi1jYXNlLXJldmVhbHMtdGhhdC1rZXktZm91bmRlcnMtc2F3LWFib3J0aW9uLXByaXZhdGUtbWF0dGVyLyJ9.3Oz4ziKkJBN2tEYVnpVZn6nAAc14004UAhTbvAbyhAM

A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. 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.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”

Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.....

Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (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 effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”

Though Marshall’s notes on Commonwealth v. Randolph are extensive, this episode is poorly documented in the county court records, and, thus, no formal case law was generated. Regardless, the episode begs examination as it involved key Founders who occupied vastly different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshall believed in a strong national government. Jefferson mostly supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy went on to marry Gouverneur Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.

If anything, the saga demonstrates that the concept of abortion as a private matter was “deeply rooted” in the minds of our nation’s Founders. As Americans consider their next move on the abortion issue at the state level, they should be mindful of the precedents followed by these early giants of our republic.

[TFRD]

1. It is Private Matter!

And the matter is called...

(Choice!)

(~÷)
Tony!

[Arkansas Granny]

2. Hear, hear.

[sop]

7. Saw a sign at a march recently, it stated simply: "Pro-Privacy"

[Historic NY]

3. So this is what passes are originalism from a SCOTUS

Using a 1652 case in a Papist colony when the concept of a Constitution and a United States was far from being thought about is really far off the mark.

[jmbar2]

4. Benajimin Franklin also published instructions for abortion in that same era

https://www.npr.org/2022/05/18/1099542962/abortion-ben-franklin-roe-wade-supreme-court-leak

[Igel]

11. I read that and thought, "Gee, I like primary sources."

Especially when the article claiming X says, "He wrote about Y, very much not about X."

Here's my issue (so to speak).

"Courses" means "period." The guidance is for how a woman can suppress her period. Now, if she's pregnant, not a problem. If she's not pregnant, it means how to suppress what precedes fertility.

This is contraception. Unless we think a birth control pill is an abortifacient.

The writer quotes a book she doesn't actually link to, when it's well in the public domain (I find that suspicious in quality writing; on the web, de rigueur). Correcting the professional, here's the link: https://collections.nlm.nih.gov/ext/dw/8111161/PDF/8111161.pdf You want PDF page 44. I'll quote and update the stylistic conventions as I deem appropriate, without remark, and add boldface where I think appropriate. Franklin uses no boldface, just italics and small caps, plus capital initials, punctuation, and spellings proper for his time.

"Suppression of the courses.

Now I am upon female infirmities. It will not be unseasonable [ sic ] to touch upon a common complaint among unmarried women, namely, the suppression of the courses. This don't only disparage their complexions but fills them, besides, with sundry disorders. For this misfortune, you must purge with highland flag (commonly called belly-ache root) a week before you expect to be out of order; and repeat the same 2 days after. The next morning, drink a quarter of a pint of penny royal water or decoction, with 12 drops of spirits of hartshorn, 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. Ride out, every fair day, stir nimbly about your affairs, and breathe as much as possible in the open air.

You must feed upon a warm and cordial diet, enriched with a great deal of mustard, nutmeg, horseradish and garden cresses--at the same time avoiding everything that is astringent, phlegmatic and windy. And let your drink be beer, brewed with sorrel leaves or else
ground-ivy tea.

To prevent this complaint, young women must shake off sloth and make use of their legs as well as their hands. They should be cautious of taking opiates too often or Jesuits' bark except in cases of great necessity, nor must they long for pretty fellows or any other trash whatsoever."

"Unreasonable" strikes me as more likely than "unseasonable". An "r" and long s might not be that dissimilar--depends on Franklin's script. In high school I transcribed many a page of chancellory script, records from the late 1600s and early 1700s. Long s seem normal to me still 46 years later (maybe because I used them until long after college?), but the rules were shifting, unclear, and idiosyncratic by scribe. Between that, Chaucer, Mallory, Shakespeare ... Sometimes I come unstuck in English-time. (Don't ask me when I started to thee and thou my parents by accident at dinner. 'What dost thee trouble, mother and father?" Thought they were about to call the doctor. I had no idea what was wrong for a few minutes. Then I realized I'd lapsed into Mallory-speak. The dative subjects really threw them. ""Me thinks thou didst not ponder the evening notices, mother, how the Watergate hearings import us, and the president's actes thus displayed." Consider it uber-nerd-speak and intellectual cosplay. If not, I thee wolde y-clept remisse and foe. Yeah, Mallory was stilted for his tide.)

Notice "don't" instead of "doesn't." It's not an error, but the expected form in many dialects. However, he's clearly talking about a young woman's menses.

Hartshorn is ammonia.

Timeline: start 7 days prior to menses; the "treatment" ends 7 days after expected onset of the period (I have no idea how long 'average' menses lasts, if there even is a reasonable average). Then for the next 9 days eat a good diet, engage in plenty of activity and fresh air. Now, "working class" women would do this--pre-Industrial Revolution, yada-yada. But the literate class would be much more sedentary, so he's telling the equivalent of housewifes (and white-collar workers) ... Pilates!

Somehow, this strikes me as useless advice. But it's apparently iron-clad evidence that Franklin said you could start an abortion 2-3 weeks before conception.

I think the writers (not nude-sunbathing Ben) assumed that this was for a woman who suspected she'd miss her period due to pregnancy and wanted to abort prior to any evidence, possibly prior to implantation of the embryo, after fertilization (not terms Bennie would have recognized). I think they're wrong and the plain text is, well, plain, and doesn't need layers of "correct" interpretation to make sense. Many other "remedies" in Franklin's guide are no less "unseasonable." It strikes me (ooh, dative subject) a pretty humongous assumption, the only hint being to avoid "pretty fellows or any other trash."

[Hekate]

16. Very interesting! I like primary sources as well, & after reading quite a few mentions of Franklin's

…. book, I set out to find it. To my dismay I could not locate it in the usual places — and it was only after getting into Google search and then the Internet Archives that I realized the book was not by Franklin, but several others. Apparently he edited and emended freely upon the original from England, in order to adapt it to the (then) Colonies.

Franklin’s “recipe” is in a book called “Every Man His Own Doctor, the Poor Planters Physician,” by John Tennent. There is no slapdash “brew some tea” or “chew that root,” but a meticulously prepared and measured-out medicine. Very appropriate, given the toxicity of some of the ingredients. Also, housewives for centuries were accustomed to brewing beer, distilling liquor, and distilling medicines, so this was not alien to most.

The larger book to which Tennent’s was appended is called, “The American Instructor, or, Young Man’s Best Companion,” by George Fisher, an all-purpose self-guided education for a man or woman of those times.

And, now that I know to look for it under some other name than Ben Franklin’s, I have been able to find facsimile copies at Amazon, Abe, and elsewhere — and I downloaded it from the Internet Archives totally free of charge.

Regarding your comment on the “timeline”: the average for the menstrual cycle is 28-days from beginning to end, and the average for the days of menstruation is one week within that cycle. You can see why the ancients closely associated women and their cycles with the Moon itself.

This 28/7 arrangement varies among individual women depending on various factors, such as inheritance, age (young teenagers and perimenopausal women), severe stress, and malnutrition, such as that which accompanies poverty, famine, or anorexia.

But as an average it works pretty well, so girls are taught early on to mark their calendars so as to be prepared for the next onset — because there is nothing like being away from home without supplies when your period starts — altho truth to tell it happens to all of us sooner or later.

More sophisticated trackers assist with charting ovulation in order to either get pregnant or to avoid it. It can be done without an app, believe me, and these days I would recommend that.

[Hekate]

5. Thanks, I'm adding this to my collection of articles. The authors noted how obstetrics became the...

… exclusive property of male physicians in the 19th century, and hence male lawmakers. This I already knew, but the rest of it — the story of Nancy and her abortion and the women who quite openly helped her, was news to me, and I won’t forget it.

It’s good to have a well-researched rebuttal to The Fanatical Six, especially Alito and the Handmaid. They are not merely ignorant, but willfully and maliciously misleading the ignorant.

[mzmolly]

6. "Originalists"

take note.

[Warpy]

8. So much for these phony "originalists" hiding their morbid religious scruples

underneath those robes they've been desecrating. They will continue to rule from their misreading of the bible instead of the law they swore to uphold.

The only remedy for this bullshit is massive civil disobedience. That is just what will happen, too.

Religious zealots will mind everybody's business but their own.

[Igel]

10. Except that the case was weak.

https://upload.democraticunderground.com/1016327280

[Warpy]

13. A much better case can be made now

since enforced motherhood violates the 13th amendment.

[ms liberty]

9. Good. The more they find, the better. I want to see Alito get schooled.

[Wounded Bear]

12. Alito is not "too stupid" to find this. He ignored it to further his own agenda...nt

[LetMyPeopleVote]

14. The Dobbs decision looks to history to rescind Roe

Again, Alito is a partisan hack who does not know history. Alito cited a witch hunter who was an advocate for marital rape as his authority to overturn Roe. Alito is both a partisan hack/bad lawyer and a bad historian

Link to tweet

https://www.washingtonpost.com/outlook/2022/06/24/dobbs-decision-looks-history-rescind-roe/

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Alito contends, however, that pre-quickened abortions were always strongly condemned, as shown by the wave of statutes that states passed in the 19th century criminalizing abortion for the entire pregnancy. Yet, over a third of the states actually retained the imprint of quickening in these laws, assigning a distinctly lesser penalty for abortions that took place before quickening.

Even more importantly, there is scant evidence of public concern about fetal “personhood” or moral opprobrium prompting those new state laws in the 19th century, as Alito claims in Dobbs. In fact, there appears to have been no public pressure at all for tougher laws before 1845. All the statutes passed before 1845 were added during routine revisions of state criminal codes, probably meaning that most were enacted without actual debate.

[UTUSN]

15. K&R

[Hermit-The-Prog]

17. The Subversive 6 are not interested in law or precedent, only their extremist ideology.