The history of Wisconsin’s 1849 abortion law shows us that abortion into the second trimester of pregnancy has a long legacy in the state and the nation.
When the U.S. Supreme Court ruled in Dobbs v. Jackson and overturned Roe v. Wade, the state of Wisconsin immediately reverted to an 1849 criminal statute which makes abortion illegal without exceptions for rape or incest and deems abortion a felony. Thanks to this state-level trigger ban, women in Wisconsin lost access to abortion with startling speed. Today, only in cases where the procedure is deemed life-saving, or when it is “advised by two other physicians as necessary,” is a so-called “therapeutic abortion” authorized.
One of the most enraging aspects of the Supreme Court’s decision was its misuse of history.
As ludicrous as it sounds to look back to the mid-19th century for sound medical guidance, the 1849 law in Wisconsin actually protected a woman’s right to abortion through the first and second trimester, reflecting a long history of abortion rights and choice in the state.
The 1849 law made “the willful killing of an unborn quick child” an act of first-degree manslaughter. A “quick child” was a fetus that had quickened, meaning that the 1849 law preserved the common law right of abortion until quickening.
It wasn’t until 1858 that Wisconsin lawmakers removed the reference to quickening and prohibited the abortion of an “unborn child”—language that remains in the statute today. This distortion of legal history exposes the fallacy of conservative claims to tradition and legal precedent.
One of the most important rationales for the conservative justices who overturned Roe was ‘history.’ In Dobbs, the Court went beyond the question they were asked to decide, which was whether the state of Mississippi could place a ban on abortion after the 15th week of pregnancy. Instead, the majority struck down the long-standing constitutional right to an abortion, which the Court first recognized in Roe v. Wade in 1973 and had preserved through subsequent rulings up through Whole Women’s Health v. Hellerstedt in 2016.
In Dobbs, the majority overturned Roe and relegated to each state legislature the decision of whether Americans still possess this fundamental right.
Writing for the majority, Justice Alito argued that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” This is incorrect.
The Constitution does not include the word abortion, just as it does not discuss contraception, marriage, paternity, adoption, guardianship and a host of other legal issues related to reproduction. Laws pertaining to these “domestic relations” were part of the common law—a body of law first developed through judicial decisions in English courts, and later adopted and elaborated by colonial and American judges.
From the colonial era until the 1850s and 1860s, abortion through the first and much of the second trimester was legal in the United States. English and American common law recognized the right to abortion before “quickening,” or before fetal movement could be felt by the person who was pregnant. This typically happens between the fourth and sixth months of pregnancy.
There were practical and philosophical reasons for the quickening doctrine. In an era before pregnancy tests, there was no way for a woman to know if she had stopped menstruating because she had conceived, because she had an irregular cycle, or because she was afflicted with a disease or illness.
A woman who wanted to end her pregnancy or restore her menses—practically speaking, one in the same in early America—would have used an herbal emmenagogue to stimulate her menstrual cycle, relying on knowledge she had derived from other women in her community or from recipes printed in home medical manuals. These herbal compounds would stimulate blood flow to the uterus and often stimulate uterine contractions, resulting in a spontaneous abortion if a pregnancy had been conceived.
A woman who wanted to end her pregnancy or restore her menses—practically speaking, one in the same in early America—would have used an herbal emmenagogue to stimulate her menstrual cycle … resulting in a spontaneous abortion if a pregnancy had been conceived.
While abortion was not necessarily common in early America, neither was it rare. According to historian Cornelia Hughes Dayton, Puritan women in the colonial era were familiar enough with herbal emmenagogues that they used a slang term for them: “taking the trade.”
By the early 19th century, physicians with formal medical training, midwives and other commercial practitioners understood the medical techniques needed to terminate a pregnancy. They could provide abortions at the behest of patients or customers who sought to have their menses “unblocked.”
A woman’s decision to restore her menses before she felt fetal movement was not only legal, but uncomplicated by our present-day language of “choice,” “life” and “rights.” As historian James C. Mohr explained, early Americans understood a pre-quickened fetus to be inert. “Life” could not be established until quickening was felt.
Abortion and the restoration of menses existed on a spectrum of efforts that women from the colonial era onward made to control whether and under what conditions they would bear a child. A middle-class white woman might campaign for “voluntary motherhood,” or the right to choose when to have sexual intercourse, against laws that sanctioned marital rape. An enslaved Black woman, knowing that any child she bore would be chattel like herself, might utilize an emmenagogue to exert control over her own body and its capacity to reproduce—an act of resistance in the context of her physical and sexual bondage. A destitute woman, despite the poverty of her situation, might fight the efforts of reformers or the state to place her children in an orphanage.
The desire of a woman to end her pregnancy stood on continuum with the efforts of other women to have their children and keep them, against the efforts of individuals and institutions more powerful than themselves.
The quickening doctrine was universal in the U.S. before concerted campaigns in the 1840s and 1850s to criminalize abortion. The factors and forces behind these campaigns are multifaceted, but one key constituency was the American Medical Association (AMA), which represented physicians with medical training who were seeking a higher professional status in the mid-19th century, and they sought to drive commercial abortionists out of business. They persuaded state legislators across the nation that “quack doctors” were prescribing toxic drugs to women and endangering their lives. In many states, legislators passed laws because they were concerned that upper-and middle-class women—whose fertility rates were declining—were seeking abortions in higher numbers, while poor and working-class women continued to have many children. These and other factors led to the widespread criminalization of abortion in the United States. By the 1880s, every state had laws that restricted abortion, and by 1910 the procedure had been criminalized at all stages across the nation.
The history of Wisconsin’s 1849 law shows us that abortion into the second trimester of pregnancy has a long legacy in the state and the nation. For over 300 years, from the 17th to the mid-19th century, the quickening doctrine prevailed across the nation. And in the nearly 50 years between Roe and Dobbs, the right to an abortion was the law of the land. Only in the roughly 150 years between did various campaigns succeed in restricting and then criminalizing abortion. Even while abortion was illegal, many millions sought and found the means to end their pregnancies, sometimes at the expense of their own lives.
Despite the claims of Justice Alito and the Court’s majority, abortion has a deeply rooted legacy in American law and tradition—much longer than the more recent rise of the anti-abortion movement. This willful erasure of reproductive freedom should be at the forefront of legal challenges to abortion bans and could also play a key role in protecting civil liberties for queer and trans people as the legal landscape continues to shift.
The right to privacy and reproductive freedom are deeply entrenched in our nation’s history, and now is the time to challenge erroneous narratives which suggest otherwise.
Editor’s note: Ms. is keeping track of the changing landscape of abortion care and will continue to update this tracker as state policies continue to morph and change.
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