As further evidence, Spivack points to recipes for concoctions, made from things like ergot and savin, that would “bring down the flowers,” a euphemism for restoring menstruation. Sometimes, women would take the herbs if they were missing periods because of nutritional or other health issues. Other times, though, it was meant to cause a miscarriage.
Dellapenna argues, meanwhile, that herb-based abortions were tantamount to suicide. They worked by poisoning the fetus, but took down the mother, too. “Women are not fools!” he said. “They said, ‘I’ll wait till the baby is born.’” Thus infanticide, helped along by complicit midwives, became a much more endemic problem, in his view.
(Spivack says that to the extent infanticide happened, it was mainly a phenomenon among single women. One centuries-old law stated that a woman found alone with a dead baby should be presumed to have killed it.)
Leslie Reagan, a professor of history and women’s issues at the University of Illinois, takes Spivack’s side. Her book, When Abortion Was a Crime, came out in 1997. In a review for The Atlantic at the time, Katha Pollitt wrote that it dispels the notion that “widespread use of abortion [is] a modern innovation, the consequence of some aspect of contemporary life of which [opponents] disapprove (feminism, promiscuity, consumerism, Godlessness, permissiveness, individualism).”
Reagan says many women would dose themselves with abortifacients but stop once they reached quickening. In the 18th century, “there was even a term for it, ‘taking the trade,’” Reagan said in an interview. “Peddlers would go from town to town selling various herbs and powders that would induce a miscarriage.”
In England, abortion became criminalized in the early 1800s, and U.S. laws quickly followed. Again, according to Dellapenna, policymakers at the time were concerned about child murder.
Reagan and others, meanwhile, believe criminalization was driven by fears that wealthy, white women were having too many abortions, therefore depriving the country of badly needed people. During this time, Reagan said, “abortion” was chosen to represent any terminated pregnancy—even those before quickening.
The fear at the time was, “women are not doing their duty, and if they don't bear the fruit of their loins, who is going to settle the great vast prairies?” she said.
* * *
So why does it matter what the Anglo-Saxons thought about fetuses? Any number of things from the past—witch-hunts, slavery—are thankfully no longer part of legal thinking. Why should we care about the history of abortion?
Spivack acknowledges that looking to the Anglo-Saxons might be digging too deep. But our modern theories of right and wrong come from many sources, and a big one is English common law. “The people who wrote about the law in 17th, 18th, 19th centuries—Matthew Hale, William Blackstone—we read them today,” she said. “If they say this, we have to take it seriously.”
For his part, Dellapenna acknowledges that if the Supreme Court justices take his view that abortion has not historically been smiled upon, and in turn leave abortion restrictions up to the states, abortion would be all but unattainable in some parts of the country.
“This would discriminate against poor women. This would be a problem,” he said. But the practical consequences are beyond his purview. “I’m just the guy who’s after the truth of the matter.”