By the middle of the 19th century, Ann Lohman was rich—the owner of furs and jewels, a woman who made her way through New York City in a carriage pulled by four horses. She built a brownstone on 5th Avenue; the Vanderbilts would later build three homes across the street. For a woman who’d once been a maid and seamstress, it was a remarkable turnabout of fortune. The source of her wealth? Under the name Madame Restell, Lohman worked as an abortion provider. Her job was no secret: She advertised her services in newspapers.
But Lohman practiced during a tumultuous moment in American history, amid the nation’s first major anti-abortion movement. It was a time that, like our own, found avenues to legal abortion narrowing and providers under attack. “There really is this outrage towards her,” said University of Illinois professor Leslie Reagan, the author of When Abortion Was a Crime. Restell was “pursued,” Reagan said, and arrested more than once for providing abortions.
Part of what makes stories like Madame Restell’s so fascinating is that, just a few years before her reign as an infamous tabloid fixture, abortions were legal in New York and every other state. In fact, some form of abortion has been widely legal for much of American history, centuries before the 1973 Roe decision.
Despite a raft of state laws between 1820 and 1880 criminalizing them, by the end of that century, doctors believed that 2 million abortions were being performed annually in the United States—which would have made the procedure far more commonplace than it is today.
The story of abortion in America is longer than the United States itself. It’s a story that includes centuries-old English laws permitting the practice, which colonizers brought with them to the US. It features founding father, Benjamin Franklin, who personally published an abortion recipe, and it’s the story of a time when even the Catholic Church permitted abortions. It’s a story that suggests, you could say, that abortion is a foundational American act.
In his horrifying opinion for Dobbs v. Jackson Women’s Health Organization, the case that gutted Roe v. Wade, Justice Samuel Alito wrote, “The Constitution makes no reference to abortion.” That’s true, technically. But it doesn’t mean that we don’t have a constitutional right to abortion.
The 9th Amendment—penned by founding father James Madison himself—explains that rights spelled out in the constitution don’t preclude the existence of other, unenumerated rights. But despite the fact that this support for unenumerated rights is literally spelled out in the Bill of Rights, “Justice Alito does not even reckon with the 9th Amendment in a real way,” said New York University law professor Melissa Murray in an interview conducted after the Alito draft leaked but before the final Dobbs ruling was released. Instead, he argued that Roe was “egregiously wrong from the start,” in part because it was “not deeply rooted in the nation’s history and tradition.” Under the Supreme Court’s previous rulings on the 14th Amendment, Americans are entitled to rights that aren’t explicitly outlined in the constitution if those rights are “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.”
Even in the constitutional test he did choose to apply, Alito’s opinion is full of distortions of history. “He notes that abortion has been criminally proscribed in many jurisdictions in the United States historically,” said Murray, “but he’s a little selective about that history, because it’s not entirely true.”
Alito’s wording in Dobbs is important, in that it is utterly dismissive of much of the nation’s history and tradition—the same history and tradition conservatives are supposedly so keen on preserving.
Abortion was a downright common practice in early America, and one word that’s key to understanding its history is the idea of “quickening,” which indicated when a pregnant woman first felt fetal movement, usually between the 16th and 24th weeks of pregnancy. Before the mid-19th-century, abortion prior to quickening was generally legal in the U.S. and colonies that preceded it. This approach was remarkably similar to the now-overturned fetal viability standard of 23 weeks the court outlined in Planned Parenthood v. Casey, as the three liberal Justices wrote in their Dobbs dissent: “Criminal law of that early time might be taken as roughly consonant with Roe’s and Casey’s different treatment of early and late abortions.”
Prior to quickening, fetuses weren’t considered living human beings—a dangerous view held by today’s conservatives—and abortion was described with terms like “restoration of the menses.” According to historians like Oklahoma City University law professor Carla Spivack, this wasn’t just a euphemism, but reflected an understanding of human health that believed that the suspension of menstruation—whether caused by pregnancy or any other condition—could just plain be bad for a woman’s health. Prior to quickening, a pregnant person might not even calculate their due date.
Importantly, quickening was a marker that could only be gauged by the pregnant woman in question, which meant that women had a degree of authority regarding their pregnancies. That put white women “in the position of being experts regarding their own bodies and also in charge of reporting or not reporting quickening,” said reproductive rights historian Rickie Solinger, author of Pregnancy and Power—a point that feels almost radical in this current era of stolen bodily autonomy. “The midwives and emergent physicians understood, and for the most part honored, this common law practice.”
Abortion access was more tightly constrained for Black women who were held as slaves. (Unsurprisingly, Alito didn’t including the treatment of these women in Dobbs’ approving rundown of historical abortion restrictions.) Slave owners, who would also own any children the women they held in bondage gave birth to, attempted to control enslaved women’s reproduction. “Which is not to say that enslaved women did not figure out how to terminate pregnancies that they wished not to have,” said Solinger. “But of course, the degrees of surveillance and coercion that people lived under, under these circumstances, was so intense that we don’t have good statistics about how often people were able to use the herbs that the experts within their communities had determined could end the pregnancy.”
For white American women, knowledge of abortifacient herbs like savin and pennyroyal could be obtained from midwives, apothecaries, and women in their social circles. Abortion instruction could also be found printed in books. Benjamin Franklin—noted founding father integral to the “nation’s history,” as Alito would call it—edited and published an instruction book full of practical information, from math to horse care. Alongside these other practical tips was an abortion recipe.
“Abortion was so ‘deeply rooted’ in colonial America that one of our nation’s most influential architects went out of his way to insert it into the most widely and enduringly read and reprinted math textbook of the colonial Americas,” colonial American literature expert Molly Farrell wrote for Slate, “and he received so little pushback or outcry for the inclusion that historians have barely noticed it is there. Abortion was simply a part of life, as much as reading, writing, and arithmetic.”
There were still cases in which abortion was prosecuted as a crime, generally a misdemeanor and in instances when abortion occurred after quickening. Alito cited a 1732 English case of a woman convicted of performing an abortion, but he handily omitted that the abortion may have occurred after quickening and that the woman was also accused of providing poison to a man who wanted to murder his wife.
Even the Catholic Church did not adopt its current anti-abortion stance until 1869—until then, it too had allowed abortion prior to quickening. But it was around this time that abortion rights came under attack from multiple fronts.
Doctors were among the most influential anti-abortion advocates. This was an era before medical licensing, and upper-class doctors, almost all of them white men, competed for business with midwives, homeopaths, and other kinds of practitioners. In the 19th century, physicians, almost all of them white men, began a concerted attempt to wrest labor and delivery practices—and the customers that came with them—away from midwives, who were almost all women and many of whom were Black.
“What’s frustrating to this group of highly educated professionals is they’re competing with all these people who are ‘beneath’ them—working-class people, women, people of color, midwives,” said Reagan. “And none of these people, in their view, have the right to be practicing medicine.”
As part of their professionalization efforts, doctors formed the American Medical Association, and one of the AMA’s first major efforts was the criminalization of abortion. In their attempt to turn public opinion against midwives, doctors portrayed them as dirty, backwards, and morally compromised by abortion care. In contrast, physicians insisted that they were clean, scientific, and morally righteous in their anti-abortion stance. They also argued that the demarcation of “quickening” was irrelevant, insisting that abortion at any stage of pregnancy was immoral (sound familiar?).
Reagan said that taking this anti-abortion stance may have helped male doctors assuage concerns about conquering the historically female realm of labor and delivery. “I think a way to justify their own interest in women’s private parts and reproduction is to show how highly moral they are, because there’s questions about that,” she said.
“Women’s assumption of their natural God-given status and destiny as mothers,” said Solinger, was central to the abortion debate of the 19th century. In fact, Harvard-educated OBGYN Dr. Horatio Storer, one of the leaders of the era’s anti-abortion movement, was such a fan of the Catholic Church’s newfound anti-abortion position that he converted to the faith. Like today’s anti-abortion crowd, he believed that the practice constituted infanticide. He wanted to sell that messages to the masses—an uphill battle, given how accepted abortion was at the time. One committee he led “found public and unblushing defenders, who have so blunted the moral and religious sense of the people, that many respectable women do not hesitate to avow their belief that abortion is no crime.”
Woman, Storer wrote, owed “what she is in health, in character, in her charms, alike of body, mind, and soul” to “her womb alone”—women were nothing without motherhood. Accordingly, any interfering with the state of her womb was so unnatural that Storer reported that even thinking about having an abortion could be fatal. (Aside from it being impossible to die just by considering an abortion, the practice remains safer than childbirth, just as it was in the 19th century.)
Racism and xenophobia also played a major role in the push for abortion criminalization. Support for eugenics was widespread in the U.S. in the late 19th and early 20th centuries, and abortion advocates’ ties to the movement have long been debated by historians—and regularly trotted out by right-wing figures like Justice Clarence Thomas. However, the openly eugenic goal of the original anti-abortion movement has been far less well-publicized. Storer and others argued that abortion was not only morally wrong, but that, as practiced by the middle- and upper-class, American-born white population, imperiled the future of the Anglo-Saxon elite at a time of increasing immigration. Storer wondered in writing whether the U.S. “shall be filled by our own children or by those of aliens? This is a question that our own women must answer; upon their loins depends the future destiny of the nation.”
Famed women’s suffragist Elizabeth Cady Stanton also attacked abortion on eugenic grounds:
In a populous quarter of a certain large Western city it is asserted, on medical authority, that not a single Anglo-Saxon child has been born alive for the past three years… it is plain enough that the murder of infants is a common thing among American women.
“There was a tremendous amount of focus on maintaining high levels of white reproduction, and that white women had not only a God-given capacity to reproduce, which they shouldn’t violate, but also a national responsibility to reproduce, in order to maintain white supremacy in population and culture,” said Solinger, “And by white, they meant white Western European, specifically.”
It’s a sentiment that’s echoed by white nationalists and subscribers to the “great replacement” conspiracy theory today, whose opposition to abortion rights is rooted in a sinister desire to boost the white birth rate.
In the midst of these anti-abortion cultural winds, state after state enacted laws outlawing abortion during the mid-1800s. By 1910, the once widely accepted and practiced medical procedure was illegal across the country.
Still, millions of abortions were performed each year, and doctors found it challenging to convince the public of its supposed immorality. In 1895, one American anti-abortion doctor complained that “many otherwise good and exemplary women” believed “that prior to quickening it is no more harm to cause the evacuation of the contents of their wombs than it is of their bladder or their bowels.”
Madame Restell, who’d by then been dubbed “the Wickedest Woman in New York,” was repeatedly targeted in the new legal crackdown on her profession. After a final arrest in 1878, she died by suicide after cutting her throat in her bathtub.
Historians sometimes call the era between the passage of the 19th-century laws and Roe “the century of silence.” The United States and the colonies that preceded it, however, are now more than 400 years old—which means that, for the vast majority of the nation’s span, some form of abortion has been widely legal, and it has always been widely practiced. Sure sounds deeply rooted in our history and traditions.