Column: The 19th century roots of anti-abortion laws

Even Roe v. Wade’s biggest fans must concede that its foundations were more aspirational than textual.

The Roe court grounded the constitutional right to an abortion in the 14th Amendment’s concept of liberty. This concept of liberty, the court held, included a right to privacy, which could be found in earlier cases, such as Griswold v. Connecticut. In that case, Justice Douglas famously found a right to use contraception not in the specific provisions of the Bill of Rights, but in the “penumbras, formed by emanations from those guarantees.”

Justice Samuel Alito would have you believe that his opinion in Dobbs rests on a more concrete foundation than the astronomical metaphor that undergirds Roe. He asserts that his analysis is rooted in “language,” “history” and “tradition.” Of particular importance in this history and tradition, he writes, is the wave of laws against abortion adopted by state legislatures in the 19th century. These statutes, Alito believes, evince an “overwhelming consensus” that abortion takes the life of a human being and therefore should be criminalized. But if we look under the hood of those laws, do we in fact find popular support for the concept of fetal life?

An examination of the ideological foundations of those 19th century statutes reveals that they were the work of the Boston obstetrician and mansplainer Horatio Storer, who sought to make a name for himself in the newly formed American Medical Association by bringing about “a radical change as to the popular estimate” of induced abortion. According to the historian James C. Mohr, Storer was a dogged campaigner for criminalization. A major force in that campaign was his essay entitled Why Not?: A Book for Everywoman. It was widely distributed to local medical associations, who then lobbied their state legislators to codify its arguments. A perusal of Why Not? establishes that the “history and tradition” on which Dobbs rests was merely a national legislative fad that had at its bottom nothing but a Civil War-era tract of misogynist quackery.

Storer’s views on abortion were consonant with his views on human sexuality generally, which were similar to those of the anti-vice crusader Anthony Comstock. He disapproved of the “self-abuse” that a less squeamish man might call masturbation. He believed that intentional use of contraception rendered marriage “but legalized prostitution.” Childbearing, he posited, was the single purpose for which women were “physiologically constituted and for which they are destined by nature.” Elective abortion, therefore, was dangerous to a woman’s “domestic best interests.” In his romanticized view of pregnancy, every fetus embodied “the pledge of a husband’s or lover’s affection.” At a time when state legislators were liberalizing property and divorce laws, allowing women access to education and possibly even suffrage, Storer opposed these changes. In particular, he fought the admission of women into the AMA.

A good deal of Why Not? is dedicated to the physical dangers of abortion, and some of Storer’s arguments were surely true. He wrote before the discovery of penicillin and the flexible cannula. He referenced the risks of hemorrhage, uterine laceration and peritonitis, all of which were once known hazards of abortion. But two centuries’ worth of medical advancements have brought about the result that, where abortion is legal, it is safe. A 2012 study determined that, in America, the mortality rate from childbirth was 14 times that from abortion. A 2014 analysis found that the dangers of abortion are about equal to the dangers of plastic surgery or marathon running.

Many of Storer’s claims about abortion are not merely outdated; they are completely made up. One of these claims was his personal moral judgment about the nature of conception. He stated with confidence that “The first impregnation of the egg, whether in man or in kangaroo, is the birth of the offspring to life.” Lacking the humility to acknowledge his own subjectivity, he presented his view as the newly discovered and now unanimous opinion of his profession. Women who believed otherwise, he claimed, were swayed by “ignorance and a misapprehension of their own physical condition.” When seeking medical authority for his position, he simply cited himself in the third person.

Storer similarly employed his medical credentials to fabricate medical and psychological consequences of abortion. He claimed that the procedure could result in incipient cancer, disabled limbs, and intractable headaches, not to mention a degree of “hypochondria and despondency” that would turn a woman of angelic disposition into a “shrew and virago.” He asserted that women’s “moral shock” at their own abortions often resulted in insanity and death. What’s more, subsequent children born after an abortion were likely to be “unhealthy, deformed or diseased.” Though Storer’s fear of shrews and viragos may have been sincere, his claims about the negative psychological effects of abortion have been exhaustively disproven by the recently completed longitudinal analysis known as the Turnaway Study.

Throughout Why Not? Storer seems to be engaging in what cognitive psychologists call “motivated reasoning,” a form of distorted thinking in which one uses biases, not evidence, to construct arguments that support conclusions one likes. It is not clear, however, which argument is the means and which the end. Did Storer believe that a fetus was fully human because he wanted control over women, or did he want control over women because he believed that a fetus was fully human? What is clear is that American women will bear children they don’t want, will be jailed and will die, as a result of Alito’s reliance on a “history” rooted in Horatio Storer’s cognitive biases, Victorian prudery, and self-aggrandizing ambition. Surely, the freedom found in a penumbra was preferable.

Rockmore is a lecturer in the Dartmouth Institute for Writing and Rhetoric. She teaches first-year writing courses on free speech, the constitutional right to privacy, and happiness.