Thursday, December 9, 2021

Roe v. Wade (1973) and Historical Error

 Roe v. Wade (1973):

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

I did not ever question that claim.  If true, a case might be made that the 14th Amendment's adoption included protection against laws not in general use in 1868.  A pro-choice relative told me that a recent article in the Atlantic claimed that Mississippi's abortion law was adopted in reaction to slave women aborting their babies.

At first glance, this is not an absurd idea; slaveholders believed that their slaves were aborting their babies or causing infant deaths misrepresented as stillbirths.  That overwork, unsanitary conditions, or poor nutrition (the latter two of which afflicted many white women at the time as well) might be causing the loss of their property, likely did not occur to the slaveholders.

So I started digging.  Mississippi's 1857 abortion law:

The 1839 digest of laws:

"Quick" means the fetus is moving, typically 15th to 16th week.  A bit more digging led to Horatio R. Storer, M.D., On Criminal Abortion in America (1860) which lists all the state abortion laws then in effect and that it appears to be all the states, contrary to Roe's claim.

Curiously, Mississippi v. Emma Prude 76 Miss. 543 (Miss. 1898) overruled an indictment under the Mississippi statute for being contrary to the common law.

1 comment:

  1. Good article in the recent (11/29/2021) issue of National Review by Ramesh Ponnuru about the "corruption of history" in Roe. Paywalled, unfortunately, but here's the URL: