by Nick Gier
Life begins in contemplation of law as soon as
the fetus is able to stir in the mother’s womb.
—Sir William Blackstone, legal hero of Thomas Jefferson
Today, I celebrate the 53rd anniversary of Roe v. Wade, which allowed abortion until the end of the second trimester of pregnancy. In the Supreme Court’s decision to end Roe, Justice Samuel Alito, in one of the most poorly argued briefs in judicial history, claimed that the Constitution was silent on the issue of abortion.
In 1790, James Wilson, author of the Preamble of the Constitution and Supreme Court Justice, gave a lecture on Sir William Blackstone’s views on abortion. He agreed with Blackstone that “life begins when the infant is first able to stir in the womb.” With that law in place Wilson, presumably, saw no need for constitutional protection.
For about two thousand years the Catholic Church followed a distinction between an “unformed” and “formed” fetus. St. Augustine defined the “formed” fetus as a “live soul,” one fully formed with arms and legs. Until Canon Law was changed in 1917, Catholic authorities held that the abortion of an “unformed” fetus was not murder.
A “formed” fetus is one that has now “quickened” in a woman’s womb. As an “originalist,” one who adheres to the laws and practices of early America, Justice Alito conveniently ignored quickening as the legal standard for abortion at that time. Therefore, the majority opinion on Roe is outrageously incorrect when it states that “a right to abortion is not deeply rooted in the nation’s histories and traditions.”
Alito mentions Blackstone, but abandoning the views of the founders, he skips ahead to the 19th Century where he claims that there was wide-spread banning of abortion. Alito forgot to mention that the quickening criterion was still recognized by many courts all over the nation until 1909.
Returning to the founders, Ben Franklin republished a Virginia medical handbook from 1734 called “Every Man His Own Doctor,” which included instructions for at home abortions. One reviewer explained that it contained “the best-known herbal abortifacients and contraceptives that were circulating at the time.” There were no known objections to this book or any attempts to remove it from circulation.
Going back 4,000 years in recorded history we find that women, sometimes in alliance with midwives, were in full control their sexual reproduction. These women used various abortifacients handed down by pre-literate healers who had no doubt tested, over millennia, the effectiveness of some and the dangers of many others. Medical historian John M. Riddle calls them “Eve’s Herbs.”
An ancient Egyptian medical manual contains a recipe for a vaginal suppository made from “the unripe fruits of the acacia tree with a small, bitter melon called colocynth, mixed them with a paste of dates and honey.” Remarkably, Egyptian doctors, just like the authors of Roe v. Wade, laid out three phases of pregnancy, and they prescribed their interventions according to each period.
During Roman times, according to one of my sources, “the determination of pregnancy was left to the woman, who would not have been considered pregnant until she declared herself so. Such determination almost always came after the quickening.” Furthermore, the Roman father could kill any of his children who had not yet tasted food, a rule still held later by British Christians before the Norman invasion.
In an article in Scientific American (February 2021) Roland Betancourt concludes that “wealthy Christian women across the Middle Ages had a host of pharmaceutical contraceptives, various practices for inducing miscarriages, and surgical procedures for the termination of pregnancies.” Betancourt cites several texts that describe surgeons, late in pregnancy, dismembering the fetus to save the mothers’ lives.
Betancourt found no mention of legal action against either the women or the surgeons. Women who admitted taking abortifacients to their priests had to do penance and were not handed over to civil authorities.
Medieval nun Hildegard of Bingen, polymath and doctor, was praised for never failing to heal anyone brought into her care. She published two large tomes on medicine in which she listed the abortifacients of her day and how to administer them. One source revealed that “many of the plants Hildegard mentions have been proven by modern pharmacological studies to be effective at bringing on menstruation or abortion.”
Today, abortifacients misoprostol and mifepristone offer much safer medical abortions today. Although he has been anti-abortion in most instances, Trump has defended Biden/Harris rules on the use of mifepristone, he has approved a generic version of the drug.
More than half of American women find it necessary to end their pregnancies in the same way as millions of their sisters have since the beginning of time. Let us hope that they continue to have the freedom to do so.
Gier has been writing about abortion for over 50 years. Read his articles on topic at nfgier.com/?s=abortion. Email him at ngier006∂gmail.com.