Friday, April 6, 2012

The Founding Fathers and Abortion in Colonial America

Few issues arouse as much passion as abortion.   This has not always been the case, however.  Following English law, abortion was legal in the American colonies until the time of “quickening” in the fetus, when the baby started to move, usually around the fourth month of pregnancy. Recipes for herbal potions including pennyroyal, savin and other plants capable of “bringing on the menses” were common in home medical guides of the period.

Our founding fathers actually wrote about the subject.  Benjamin Franklin’s views can be inferred from an incident that occurred in 1729 when his former employer, newspaper editor Samuel Keimer of Philadelphia, published an encyclopedia whose very first volume included a detailed article on abortion, including directions for ending an unwanted pregnancy (“immoderate Evacuations, violent Motions, sudden Passions, Frights … violent Purgatives and in the general anything that tends to promote the Menses.”)  Hoping to found his own newspaper to compete with Keimer, Franklin responded in print through the satiric voices of two fictional characters, “Celia Shortface” and “Martha Careful” who expressed mock outrage at Keimer for exposing “the secrets of our sex” which ought to be reserved “for the repository of the learned.”  One of the aggrieved ladies threatened to grab Keimer’s beard and pull it if she spotted him at the tavern!  Neither Franklin nor his prudish protagonists objected to abortion per se, but only to the immodesty of discussing such feminine mysteries in public.

Dr. Benjamin Rush, a well known physician who signed the Declaration of Independence, shared his views of the subject matter-of-factly in his book of Medical Inquiries and Observations (1805).  Discussing blood-letting as a possible treatment to prevent miscarriage during the third month of pregnancy, when he believed there was a special tendency to spontaneous abortion, Rush asked the question, “what is an abortion but a haemoptysis (if I may be allowed the expression) from the uterus?”  A hemoptysis is the clinical term for the expectoration of blood or bloody sputum from the lungs or larynx.  In Rush’s mind, apparently, what we would now call the three-month-old embryo was equivalent medically to what one might cough up when ill with the flu.

Thomas Jefferson put no moral judgment on abortion, either.  In his Notes on the State of Virginia, he observed that for Native American women, who accompanied their men in war and hunting parties, “childbearing becomes extremely inconvenient to them.  It is said, therefore, that they have learnt the practice of procuring abortion by the use of some vegetable, and that it even extends to prevent conception for some time after.”  Jefferson on the whole admired the native people and the Notes were intended in part to counter the views of the French naturalist Buffon, who accused the indigenous inhabitants of the New World of being degenerate and less virile than their European counterparts.  In extenuation, Jefferson cites “voluntary abortion” along with the hazards of the wilderness and famine as obstacles nature has placed in the way of increased multiplication among the natives.  Indian women married to white traders, he observes, produce abundant children and are excellent mothers.  The fact that they practice birth control and when necessary terminate their pregnancies does not lessen his respect for them, but appears to be in his mind simply one of the ingenious ways they have adapted to their challenging environment.

A different window into colonial attitudes toward abortion can be found in Corenlia Hughes Dayton’s “Taking the Trade: Abortion and Gender Relations in an Eighteenth Century New England Village.”  In her 1991 monograph which appeared in the William and Mary Quarterly, Dayton examined a case from 1742 that occurred in the village of Pomfret, Connecticut, where 19-year-old Sarah Grosvenor died in a bungled abortion urged on her by her 27-year-old lover Amasa Sessions.  Magistrates filed charges against both Sessions and the “doctor of physick” who mangled the operation, but Dayton points out the legal complaints were not for performing the abortion as such (which was legal) but for killing the mother.  The whole episode was surrounded with a hush of secrecy, in an era when “fornication” was not only illegal but culturally taboo.  Abortion, in the colonial context, carried a stigma of shame not because it ended the life of a fetus but because it was associated with illicit intercourse—helping to explain the outrage of Franklin’s two characters Celia Shortface and  Martha Careful when their private remedies for ending a pregnancy receive a public airing.
 
What can we learn from examining attitudes toward abortion in early America?  Perhaps only this, that positions which seem to both the pro-choice and pro-life camps to be eternal and absolute have in fact evolved over time.  An historic perspective should teach us humility if nothing else. 





42 comments:

Angie Van De Merwe said...

Thanks! Very informative, Revolutionary Spirits....

Tom Van Dyke said...

The other half of the story, which seems so often to be missing:

http://www.lifeissues.net/writers/tay/tay_03foundingfather.html

James Wilson’s “Lectures on Law,” given at what eventually was to become the University of Pennsylvania, clearly affirm that the right to life encompasses the unborn. Wilson was one of only six men to sign both the Declaration and the Constitution, and was a Supreme Court justice from 1789 to 1798. Recognized as “the most learned and profound legal scholar of his generation,” Wilson’s lectures were attended by President George Washington, Vice President John Adams, Secretary of State Thomas Jefferson and a “galaxy of other republican worthies.” For this reason, as constitutional scholar Walter Berns states, “Wilson, when speaking on the law, might be said to be speaking for the Founders generally.” So what do the Founders say about the right to life?
Wilson clearly answers this question: “With consistency, beautiful and undeviating, human life from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”


Wilson, in agreement with the limited medical jurisprudence of his time, assumed that life begins with the “quickening" of the infant in his mother’s womb. As taught by Aristotle, the quickening was the point at which the fetus was infused with a human, rational soul. John Bouvier’s Law Dictionary, first printed in 1839, defines the quickening as follows: “The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. This happens at different periods of pregnancy in different women, and in different circumstances, but most usually about the fifteenth or sixteenth week after conception….”
One of the sources of both Wilson’s and Bouvier’s opinion is William Blackstone’s widely read Commentaries on the Laws of England (1765-1769). Blackstone’s discussion of the quickening observes: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb… this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor…"

Angie Van De Merwe said...

Tom,
I believe the Independence Institute had an article about abortion/right to life issues today. And the artcle was questioning whether the State should take a stance on it.

I agree that there should be limitation, but where are those limitations, as this is what the law does in protecting life. Most states that allow abortion limit them to the first trimester. Second and third trimester abortions are allowed in the case of danger to the mother.

While life is to be protected, liberty would suggest that before the fetus moves in the womb, there should be liberty of conscience.

Religious institutions/people might not defend any human intrusion/interjection into the conception of life, as these believe that is only "God's right". But, these also must believe that God directly intervenes in human affairs, and individual lives. Not everyone believes in Providence/God's intervention. Some believe there is a created order, and man has a responsibility to support or establish that order. Government is one of those "established" orders and the family is another. These believe in an inerrant text and a God that oversees "his order".

Those that are more "secular" in their commitments and affirm the need for individual responsibility under "liberty of conscience" affirm relationships as mutual and consentual. Therefore, marriage and family is a matter of personal value, commitment and priority.

Liberty of conscience would allow individuals to consider their prorities in marrying, protecting against pregnancy, or not allowing a zygote to develop. One's sexual life is a matter of privacy and not a matter for state interference.

Tom Van Dyke said...

I'm not going to litigate abortion on a history blog, Angie, thx. ;-)

My primary point is that to understand the 1700s, if you don't start with Blackstone on English common law and his American equivalent, the great James Wilson, you're not giving the subject a fair and serious treatment.

What's interesting here is that we could say that the traditional understanding of "quickening" and common law as the boundary for abortion supports early-term abortion. The above quote sets it at 15-16 weeks. Current law in the UK largely forbids abortion after 24 weeks, a recent bid to lower it to 20 weeks failed.

Also interesting [and it may be somewhere else in Blackstone], is that abortion isn't "murder" exactly, but it is a crime, a "hideous misdemeanor." I've also seen it referred to as a sort of manslaughter.

We aren't bound by any of this stuff of course. But if "Revolutionary Spirits" is going to look to the Founding era for some sort of advice, then he can say safely that by common law, Blackstone and Wilson, that the fetus deserves legal protection after "quickening."

This will satisfy the absolutists on neither side---the "life begins at conception" or the "woman's right to her own body" crowds, but this seems a pretty clear picture on how law and philosophy---the Anglo-American culture---saw the issue.

Revolutionary Spirits said...

Thanks for your comments, which seem to substantiate and confirm what I said, that colonial law generally permitted abortion until the time of quickening, or about the fourth month of pregnancy.

Tom Van Dyke said...

Absolutely, Gary. And now we see the strong opposition to abortion after the 4 month window, the part that was missing among the accounts of indifference to early-term abortion.

"[A] hideous misdemeanor."---Blackstone

"By the law, [post-quickening] life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”---James Wilson

Always happy to help.

Edward J. Blum said...

Really great discussion; I appreciate Tom's comments that we don't have to follow the founders, but here are some more perspectives and essential positions. Great stuff all around.

Doug Indeap said...

Justice Blackmun summarized historical laws and attitudes about abortion, including English common law as described by Blackstone and others, in Roe v. Wade. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html

Tom Van Dyke said...

From Roe v. Wade: "Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view."

He uses the word "misdemeanor" shortly thereafter, but note how Justice Blackmun skips "hideous" misdemeanor. It hardly helps his case and much-criticized opinion.

Thx for the link, Doug.

If anybody has access to Lexis/Nexis, I'd very much appreciate the relevant parts of this self-acclaimed "refutation":

The criminality of abortion under the common law is examined in Section III "The Common Law." Part A of Section III examines the English common law, as the general principles of the common law of England were adapted and adopted by the several states. Blackmun's citations in this area are thoroughly reviewed and his thesis on the English common law refuted. Part B of Section III, "State Common Law," relying principally on Blackmun's own case citations in Roe, examines how the several states interpreted and adapted the common law.

Bold face mine. Curiouser and curiouser.

Steve Kellmeyer said...

Benjamin Franklin did not oppose abortion because Benjamin Franklin was an inveterate philanderer. He had a thing for geriatric women, because in his words "they don't tell, the don't swell, and they're grateful as hell."

Philanderers are ALWAYS in favor of contraception and abortion. FDR was the first to pass out condoms to enlisted men, and at the same time he was cheating on his wife.

Most of the MSM support these two things because they aren't faithful to their spouses. They want their promiscuity to be legal.

Thomas Jefferson also had extremely unconventional understandings of both God and life. He himself admitted late in life that if his views had become well-known, he would never have been elected.

Notice I'm not passing judgement on these attitudes. I'm simply stating the facts.

Tom Van Dyke said...

Aye, Mr. Kellmeyer, the same thought occurred to me, that our witnesses here would not be my own first choice---Franklin and Jefferson were the foremost hedonists among the Founders.

[In fact, a strict reading of Lockeanism itself can ungenerously be interpreted as an institutionalization of hedonism, but that might be too far afield here. Google Locke and hedonism and you'll see.]

As for Benjamin Rush, he seems to have had much more genius as public intellectual than a physician. A good bleeding or purgation was his preferred cure for most everything.

http://lewis-clark.org/content/content-article.asp?ArticleID=2388


From Brown, Rush took a number of ideas, including that of excitability. At the heart of Rush's system--as at Brown's--is a ruthless simplification of medicine. Classifying disease is of limited importance. There is but one proximate cause of disease, so systems of classification only confuse the practitioner...For instance, the intestinal lesions of typhoid fever would have been for Rush the result of vascular tension rather than, as we see them today, a basic condition of the disease.1 Rush, however, based his therapy on depletive rather than supportive treatments. Also, Rush postulated one disease state as opposed to Brown's two.

...

While Rush developed his theory over many years, a pivotal moment occurred during the yellow fever epidemic of 1793, one of the greatest medical disasters ever to strike America, claiming 5,000 lives (Philadelphia had a population of 55,000).
The letters Rush wrote to his wife during the epidemic detail his work, his frame of mind, the conditions of the city, and what he saw as the success of his "cure."

...

Desperately searching for some way to cure his patients, Rush read a report by John Mitchell about the Virginia yellow fever epidemic of 1741. Mitchell declared that aggressive bleeding and purging had removed the poisoned humors, the key point being that depleting even an already-depleted patient was necessary to remove fever from the body. According to Rush, application of Mitchell's treatment to yellow fever patients worked, and with his usual zeal Rush began to promote it.

jimmiraybob said...

"Philanderers are ALWAYS in favor of contraception and abortion...Most of the MSM support..."

MSM? Really? You want to bring that here?

Tom Van Dyke said...

Objection sustained, JRB. However, we must give some leeway for commercials to those who are actually contributing substantively to the conversation. In fact, referencing a Founder is usually sufficient, something---anything!---with a shred of relevance. We don't ask much.

bpabbott said...

I don't think doing a good should grant license for doing a bad.

jimmiraybob said...

"...because in his words 'they don't tell, the don't swell, and they're grateful as hell.'"

Citation needed. Good luck with that. These are not "his words."

I assume, to be kind, that you are impaired and will forgo the insult to your character.

jimmiraybob said...

"He [Jefferson] himself admitted late in life that if his views had become well-known, he would never have been elected."

Again, citation.

jimmiraybob said...

"...who are actually contributing substantively to the conversation."

But, I don't think that happened. We'll see if he returns with a citation or two.

Tom Van Dyke said...

Objections sustained, JRB.

But Franklin & Jefferson were indeed our leading hedonists, unless you've got others to propose. ;-)

jimmiraybob said...

"But Franklin & Jefferson were indeed our leading hedonists"


Well, certainly Franklin had a reputation for enjoying the company of the ladies and Jefferson, in his letter to William Short(1), openly declared himself to be an Epicurean.

But I wouldn't count either one as unbridled Hedonists (seeking only pleasure). While both would likely agree that pleasure is better than pain, both believed that the classical virtues were an important part of obtaining pleasure (like Epicurus or the Stoics).

If we can more exactly define our term "hedonist" then I'll see If I have any nominations. :)

1) http://www.csun.edu/~hcfll004/jefflet.html

Disclosure: I have enjoyed the company of the ladies over the years and I think there's something positive to be said about practicing the classical virtues (practice makes, if not perfect, then more practiced). Let he who is without enjoyment in life cast the stones.

Now, off to enjoy some hot steamy coffee.

jimmiraybob said...

Jefferson to William Short ".... As you say of yourself, I TOO AM AN EPICUREAN."

Upon further review, I would have to nominate William Short as apparently having a little hedon* in him. Danged Epicureans, can't swing a cat without hitting one.

*again, depending on our definition.

Disclaimer: "can't swing a cat" is an olde tyme saying - I do not swing cats nor do I endorse the swinging of cats. No cats were harmed in the making of this comment.

Tom Van Dyke said...

Short = Not a Founder

Jefferson = Not someone whose morality I personally find inspiring

James Wilson = Major Founder, exquisite moral reason, perhaps the finest mind of the Founding

Mark in Spokane said...

If nothing else, the fact that some of the Founders may have embraced barbaric ideas about the right to life stands together with some of the Founders embrace of the barbaric practice of chattel slavery to indicate that many of our Founders were not perfect or demi-gods, but rather fallible men who shared in many of the prejudices and limitations of their day. As modern science has progressed to demonstrate the full humanity both of African-Americans and the unborn, it is hopeful that we might follow what a much later American Re-Founder (Abraham Lincoln) called "the better angels of our nature" to embrace the humanity of all of our brothers and sisters.

Jason Pappas said...

Franklin hedonist? Franklin the writer (Poor Richard) could hardly be called a hedonist. Is not his preaching is more important than his private life?

In any case, thanks guys for retrieving all those snippets on the founders' thoughts on abortion. They seem to be more conservative (i.e. not radical dogmatic ideologues) than anything else.

Tom Van Dyke said...

Jason, I just ran across some biography claiming that Franklin had borrowed pretty much all the Poor Richard aphorisms. Pls do check it though, I offer only a lead here.

And yes, I do believe one can be diligent and thrifty, and still a hedonist. Nothing worse than a broke hedonist. Epicurean, if you prefer, which fits Jefferson literally.

Nick said...

Uh, JRB, you might want to have a look at this before you start casting insults about:

http://www.swarthmore.edu/SocSci/bdorsey1/41docs/51-fra.html

#4, #3, and #8. Not his "own words" by far, but close enough that you might want to be more careful about throwing insults about.

bpabbott said...

Nick, have you come across an original reference ?

bpabbott said...

Not as reliable a reference as I'd prefer, but I found this.

At the vary least, it appears to be complete. However, I'd still prefer to see the original before putting to much weight on it.

jimmiraybob said...

Not his "own words" by far, but close enough that .... blah blah.....


Sorry, but when someone explicitly says "in his words" and then places text within quotation marks it means that a person is being directly quoted, not paraphrased as "close enough."

People around here go well out of their way to provide accuracy and citations. More rigor, less horse shoes.

Tom Van Dyke said...

Odd. When I caught our friend the unredoubtable Ms. Rodda guilty of the same exact thing, claiming David Barton had said "ministers" when he'd actually said "trained for the ministry,"

http://www.talk2action.org/story/2010/7/31/123919/659

'twas I who took the crap as if it were somehow MY fault, and she who heard not a discouraging word from our correspondent here.

Such a funny world.

jimmiraybob said...

TVD – “claiming David Barton had said "ministers" when he'd actually said "trained for the ministry,"


From the first video at the link you provided.

Barton (recording): “Of the 56 guys who signed the declaration 29 held seminary degrees. So, we’re talking about more than half the signers of the Declaration were trained for ministry…”

Well, it’s pretty clear what is being implied here. But let’s see where Chris goes. First, she explains that at the time of the founding, seminary meant an institution of learning. Using the 1828 Webster’s Dictionary she quotes the definition of seminary as “…any school, academy, college or university in which young persons are instructed in the several branches of learning which may qualify them for future employments.”

Then she goes on to analyze Barton’s quote:

Rodda: ”…but, of course, the almost exclusive use of the word seminary today to mean a theological seminary allowed Barton and others who picked up his little trick, to just let their audience assume that half of the signers of the Declaration having seminary degrees meant that half of the signers of the Declaration were ministers.”

At this point she is merely saying that Barton was using a rhetorical trick to lead the audience to infer that half of the signers were ministers. I agree that using “seminary degrees” and then “trained for the ministry” in the way that he does, leaves a strong impression that they were ministers. I believe that this is the intent. You and others can disagree.

So, the difference, as far as I can see, is that Steve Kelmeyer explicitly stated that he was using a Franklin quote while Rodda is commenting on what she feels is Barton’s intended take home message. One apple, one orange. Not the same. And, unless there’s someplace else that Rodda explicitly misquotes Barton on this (other than the video that you linked) then this pretty much dismantles your disagreement on the matter.

Tom Van Dyke said...

Apples and apples. No dismantle. Mantle.

;-P

jimmiraybob said...

"Apples and apples."

Yeah, if one is orange and citrusy.:)

True story. The first orange tree that I ever saw (in an orchard of orange trees) was just outside of LA in the early 70s. Being a bohunk teenager from a city in the Midwest I'd assumed they were manufactured in the back room of the grocery. OK, the second part not so true.

Oh yeah, Ben Franklin. (Just wanted to stay within the target area.)

Tom Van Dyke said...

Heh, you got it. Well done, sir.

Thomas Jefferson right back atcha.

;-)

Anonymous said...

This article has provided clarity. It once again reminds us that although our founding fathers did intentionally base our Constitution and government in its entirety on Biblical principles, they themselves were NOT GOD!!! We have to remember not to deify those who have come before us, who were also sinful & (some) only made righteous by the blood of Jesus. We have to keep ourselves looking only to God and His holy Word for our answers. His answer on this topic at all is clear--abortion is murder, it is wrong, regardless of the sinful actions of those who came before us!

I also wanted to state that colonials at least had the (albeit flimsy) excuse of not having a window into the womb that could let them see that little person is INDEED a person that we have in modern times. We have no excuse. In the day & age when people have witnessed, through ultrasound, a baby (fetus) undergoing abortion try to avoid the probe at just 12 weeks gestation, we have no excuse to think that little one is not alive & has the same rights to life that we, who were not aborted by the Grace of God, entertain!

bpabbott said...

Did the post's title hook a troll ?

... oh yeah ... "James Madison"

Anonymous said...

I came across this piece during the "heat" of a Facebook discussion that began with Oliver Cromwell (LOL) and ended up with the statement posited that "the Founders would be shocked at [today's] women getting abortions on demand". Putting aside that no women, even today in America, get wholesale abortion on demand (it takes the consent of their medical practitioner and is subject to numerous state regulations), it struck me that this is the whole problem with Original Intent, trying to construe it and determine its value in today's world.

What is an expression of "intent"?
Who is a Founder?
Why do Founders get more weight than non-Founders?
When Founders were willing to compromise on the issue of human slavery, doesn't that also instruct us that a civil society is built on half-measures, and sometimes a deliberate effort to "kick the can" down the road to future generations?

Original Intent therefore fails to lend credibility either way as to the current abortion debate. Which leaves us the hard work of trying to think our ways through it.

Thanks for allowing me to comment.

IncreasingLearning.com said...

The quote from Benjamin Rush is presented in a very misleading light. Dr. Rush was not referring to procured abortions. Rather, he was discussing how to prevent a natural abortion. He used the term "haemoptysis" not as a description of the child, but rather as an analogy of the action of abortion.

The original source of Dr. Rush's statement can be found at this link:

http://books.google.com/books?id=AHIFAAAAQAAJ&lpg=PA352&pg=PA352#v=onepage&q&f=false

Anonymous said...

Ye gods, this may be the first civil and intelligent conversation on the topic of abortion I have ever seen. I think I love all of you. Thank you.

Philip King said...

"Putting aside that no women, even today in America, get wholesale abortion on demand (it takes the consent of their medical practitioner and is subject to numerous state regulations"

Changing just a couple of words:
"No shopper in American gets wholesale apples on demand (it takes the consent of the checkout clerk and is subject to numerous state regulations)"

Dakir said...

Yes bravo. Well written and one sided. Here is what the founding fathers actually thought. Abortion is unnatural. So is homosexuality. There is a difference between allowing something and it being right. Many views go back to the laws of nature as they should. You hand selected a bunch of things here and should man up and admit it.

Duane Ostler said...

The original post misinterprets the founders. Franklin's comments clearly show societal disapproval of abortion. Jefferson's comments were not fully quoted. Jefferson characterized the Indians who practiced abortion as "uncivilized savages," then told how they stopped aborting when they became civilized. This does not suggest admiration as the author suggests, but disapproval. As for Benjamin Rush, the author overlooked the following statement Rush made: that life's "first motion is produced by the stimulus of the male seed upon the female ovum ... No sooner is the female ovum thus set in motion, and the foetus formed, than its capacity of life is supported.” (The Selected Writings of Benjamin Rush, at 151 (Dagovert D. Runes, ed., 1947)). Obviously the Rush statement quoted in the post was merely a description of abortion, not a comment on its acceptability. John Adams praised the anti-abortion stance of the ancient Greek Lycurgus. (The Works of John Adams, vol. 4, at 549 (Charles Francis Adams ed., 1851)). Alexander Hamilton and Thomas Jefferson both made comments about the 'concealment laws' in their states that show they approved of a murder charge for a woman who intentionally aborted her child. (The Papers of Alexander Hamilton, vol. 4, at 39 (Harold C. Syrett & Jacob E. Cooke eds., 1962; The Jeffersonian Cyclopedia, at 598 (John P. Foley ed., 1900). The 'concealment laws' were adopted by most states, and prohibited infanticide and abortion. The founders believed firmly in the natural law writings of Locke, Montesquieu, Burlemaqui, Grotis and Pufendorf, EVERY ONE OF WHICH clearly stated that abortion at any point after conception was unacceptable. (for Locke, see John Locke, The Works of John Locke in Nine Volumes, vol. 1, at 48 (12th ed., 1824)(ch3, sec.19). For the others send me an email at duanelostler@gmail.com - the cites are too long) In sum, there was no founder in favor of abortion - they were all firmly against it.

Angela Navejas said...

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