Accurately remembering and correctly contextualizing history is necessary to us as we try to understand why we are where we are today; although for most of us recalling the history of, say, the “1800s” is not that important on a daily basis. In comparison, it is absolutely critical that those empowered by us to decide our laws are able to do so. Therefore it is downright scary when laws are suggested or interpreted today based on an inaccurate and/or incomplete knowledge of our past.
We have all just witnessed a stunning example of the latter in our having been informed on June 24, 2022 by a majority of the justices of the U.S. Supreme Court:
“…Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion… At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy…”
Yes, yes, that is all generally factually accurate – on the surface…
However, what is disturbing to read and outright dangerous in a public policy sense is how they and those applauding that ruling evidently fail to recall what was also true from essentally the beginning of time up to 1787 and then on into the 20th century: ONLY men had developed the common law; ONLY men wrote the (1787) U.S. Constitution; ONLY men passed the Fourteenth Amendment (1868); and in the U.S. ONLY men could hold office (with a very few state-level exceptions until starting after about 1870) until 1920.
In short, NOT even a single woman is present in that painting of the Constitutional Convention.
Men were the ONLY persons in the U.S. empowered then to make laws on this, or on any other, issue.
Meaning women then had NO say over anything to do with what was law. As a university political science and history lecturer, I would have cautioned a student not to forget that historical fact when citing such laws to defend an opinion as the Court above does. Nevertheless we are today supposed to consider those laws that were written entirely by men who were voted into office by only other men as somehow constituting constitutional-argument-clinchers when it comes to something so personal to a woman both then as well as now.
It seems some badly need reminding of pre-1900s historical reality. Women’s opinions on public policy officially did not then exist: they could not vote and could not serve in government. Moreover they were restricted to a life focused primarily on marriage and children not just by “custom,” but by laws (written, again, entirely by men) that made it impossible for them to achieve a higher education or participate in professions such as medicine and the law.
So a Supreme Court majority citing constitutional and legal references rooted in that past while taking no account of the broader historical context and plain fact of women’s then fundamental public policy making “invisibility” in order to justify a ruling impacting women today merely demonstrates how that history of women’s political powerlessness is worryingly slipping from our collective consciousness. Large parts of our society have become all too accustomed to, and even blasé evidently, about women politicians, women in business, and even women fighter pilots – they are taken it seems for granted. Indeed even some women in public office themselves currently seem to forget that their great-great-grandmothers had almost no independent legal standing much beyond that of minors and that men “governed” them and that was that.
Actual historians also know abortion only began to become a “controversial” issue once male physicians began to look after women in the middle-1800s amidst the increasing “professionalization” of medicine. Before that (from the beginning of time), during a pregnancy women relied mostly on other women and midwives through to giving birth. A woman who might have needed to end a pregnancy did so quietly and even secretly with the help usually of only other women or men who “knew” how to do it – regardless of what male-only-created laws may or may not have decreed.
Women everywhere on the globe faced much the same, of course. An attempted (1812) abortion is clearly implied in War and Peace (1869). Tolstoy’s despairing and desperate “Hélène” tried to cause one by ingesting (probably drinking) some drug and it does not end well for her.
“In intimate circles details were mentioned of how the private physician of the Queen of Spain had prescribed small doses of a certain drug to produce a certain effect…”
But [shush] one did not discuss such matters in polite society, of course.
Such was the norm of our U.S. society until women began to enter the public arena and could start to speak up for themselves, which was actually NOT that long ago in historical terms. Many a woman still living in 2022 has grandmothers who were not permitted to vote. Yet sadly so many either do not recall that time because they are ill-educated, or have chosen to forget what went on before women came to be treated as true adults and full citizens, or even have some nefarious political agenda in mind that aims to reduce the influence of (in particular certain types of) women in the public sphere.
Author of the Declaration of U.S. Independence (1776), U.S. Minister to France (1785-1789), First Secretary of State (1790-1793), Vice President (1797-1801), and two-term President of the United States (1801-1809), Thomas Jefferson (1743-1826), owned hundreds of enslaved persons. His wife died in 1782 at age 33 due to unknown complications following a childbirth (as was sadly then all too common), and aside from a few lines she copied from a Laurence Sterne novel while on her deathbed (and he eventually wrapped that writing of hers around a lock of her hair that he kept until the day he died), his wife’s other little existing writing (after her death he destroyed their correspondence) demonstrates only a “lady’s practical education.” Afterward he had some sort of brief romance with a rather younger (he was 43; she was 27) and (unhappily) married English-Italian artist while he was in France in 1786. He then began a long-running secret relationship in evidently 1789 or 1790 with (in all likelihood) his late wife’s even younger (born 1773) half-sister (his wife almost certainly never knew she was a half-sister; but Jefferson almost certainly did know), who was also an enslaved Black he also owned (having been inherited by him on behalf of his wife from his late father-in-law, the half-sister’s father by another Black enslaved woman) and with whom he would have some six unacknowledged children (the truth of which would be scientifically more than reasonably demonstrated in 1998 thanks to DNA evidence).
Despite living that existence that is so far removed from our own and even utterly alien to us in so many ways, Jefferson was able to offer us as well timeless observations such as those above.
It would be a surprise if every member of the current U.S. Supreme Court had not been inside of that Jefferson Memorial in Washington, D.C. at some time in their life and gazed up at least briefly at those words, yet to a majority of them they are apparently incomprehensible.