In April 2006, I published Dispelling the Myths of Abortion History ¯a book that, in the pages of First Things , Michael Uhlmann called the “definitive work” that utterly discredited the history in Justice Harry Blackmun’s majority opinion in Roe v. Wade . Dispelling the Myths of Abortion History was favorably reviewed in a number of other journals, all by reviewers who could be characterized as pro-life, even though some of them noted that I am not pro-life, at least not in the narrow sense of endorsing the view that life begins at conception.

The book met complete silence, however, from those who support free choice for abortion¯at least until last fall, when Carla Spivack, an assistant professor of law at Oklahoma City University, published “To ‘Bring Down the Flowers’: The Cultural Context of Abortion History in Early Modern England,” in the William & Mary Journal of Women and the Law .

Spivack asserts that Dispelling the Myths of Abortion History “relies on a serious misreading of cases and ignorance of the relevant historical, medical, and cultural context.” She goes so far as to claim that I “falsif[y] the record.” These would be devastating conclusions, if they were true.

Unfortunately, Spivack is wrong on all counts. Instead of describing or recounting the evidence I presented or the analyses I developed, she simply recycles the new orthodox abortion history that my book sets out to refute. Spivak dismisses my work by characterizing its various conclusions as mere assertions, apparently without support even in my book, while indicating that others who have studied the point under discussion have reached different conclusions. A reader would never guess from reading Spivack’s article that I not only presented considerable evidence and careful analysis to support my own conclusions, but that (unlike Spivack) I presented, often at great length, the evidence and analysis of the others to whom she refers, and I set out to demonstrate, in detail, that their evidence does not support their conclusions. Spivack so fails to engage the contents of my book that I found myself wondering how much of my book she had actually read.

The new orthodox history of abortion posits four theses: (1) that abortion was always a common practice in human history; (2) that voluntary early abortions were not crimes until the nineteenth century; (3) that the nineteenth-century abortion statutes were designed to protect the life of the mother rather the life of the child; and (4) that the statutes were enacted through a conspiracy of men to accomplish several nefarious purposes¯to subordinate women, to eliminate competition from women health-care workers with male physicians, and to ensure adequate birth rates among white, Protestant women to prevent “race suicide.”

This new orthodox history was developed primarily by law professor Cyril Means, Jr. in the late 1960s. At the time, Means was general counsel of NARAL (then the National Association for the Reform of Abortion Laws). He developed this history as part of a deliberate strategy for overturning the abortion laws then in place in the American states. The new orthodoxy was then extended by a number of other historians¯principally Angus McLaren, James Mohr, and John Redding¯each of whom was publicly committed to defending or extending the right to choose abortion. Blackmun took his history of abortion in Roe v. Wade directly from Means’ work, citing him seven times.

My book shows¯in what some might find to be excruciating detail¯how each of these theses does not stand up to close scrutiny. Presenting the history of abortion, I relied heavily on medical records from ancient and medieval times (including books for physicians, midwifes, and herbalists), together with the cultural evidence (including discussions of sin and of crime, poetry and other literary texts, diaries, and so on)¯the very sort of documents that Spivack claims to be the first to examine.

Spivack not only misrepresents the coverage of my book, she also relies directly and explicitly on the writings of Means, Mohr, McLaren, and Riddle without considering the arguments I present as to why their versions of history are distorted or irrelevant. Moreover, Spivack persistently reads back into the material’s modern understandings, rather than engaging with what the texts state in their own terms. What, after all, are we to make of her claim that people in the sixteenth century felt more vulnerable to germs than we do today¯when the germ theory wasn’t even developed for another three centuries? She is, in a word, guilty of anachronism on a grand scale.

Spivack’s glaring problems in her tale of abortion history are illustrated by her account of the available abortion procedures and her reading of a few highly select legal records. Through these, she attempts to demonstrate that the first two and at least part of the last of the four theses of the new orthodoxy are correct¯in other words, she sets about to demonstrate that abortion was common in ancient and medieval times, that it was not a crime (at least until late in pregnancy) before the nineteenth century, and that steps taken against abortion were directed at controlling women’s sexuality rather than at protecting fetal life¯ignoring the contradiction between the first two premises and the third.

Spivack indicates that she focuses on the period from 1400 to 1700 in her article, but she invests as much or more of her article on materials that predate 1400. She is highly selective in the materials she addresses from the each of these periods. She also manages to convey the impression that the medical knowledge and social attitudes towards families and abortion were relatively constant over a span of ten or more centuries¯she uses the laws of King Alfred (c. 880) and Chaucer’s Canterbury Tales (c. 1390) to illustrate what people were thinking in the 1600s. Such constancy is rather unlikely, to say the least, but the resolution of that question, like so much else in Spivack’s article, is assumed rather than explored. The only changes that Spivack acknowledges are what she sees as an apparently modest evolution of social attitudes that serves to reinforce her view that abortion in these early times was about repressing extra-marital sexuality and not about the act of abortion as such.

Consistently with the new orthodoxy, Spivack assumes that relatively safe and effective techniques for aborting unwanted pregnancies were widely known and used. She argues from that assumption that the near absence of legal records of prosecutions of married women for abortions proves that such actions were not considered a crime in the period under consideration. She also notes that the great majority of such legal records of prosecution for abortion involved violent assaults on the pregnant woman or otherwise resulted in her death, suggesting that the wrong was done to the woman and not to the child (as the court records nearly always term the abortus).

Spivack draws on a variety of sources (medical books, herbal directories, and midwife manuals) that contain recipes for abortifacient potions. She mentions columbine, ergot, fennel, fabors syrup, myrrh, pennyroyal, rue, savin, sowbread, wormwood, and several identified only by their Latin names. As Spivack never mentions what my book says about these recipes, from her article one would believe that I either missed such information entirely or deliberately omitted it. Anyone who has read the first chapter of my book, however, would recognize that Spivack’s list is actually rather short compared to the great number of substances used in attempts to bring on “obstructed menses.” What Spivack never asks is whether any of these ingredients actually worked. She is content merely to cite Riddle to the effect that these formulas would be effective¯even though Riddle’s own science advisors, whom he consulted on the effectiveness of the abortifacient potions he studied, publicly repudiated Riddle’s claims of effectiveness.

That these purported abortifacients were ineffective should hardly be a surprise: Spivack herself quotes statements demonstrating that the recipes involved magic (timing the potion to a phase of the moon coupled with bleeding). In fact, potions ranged from wholly ineffective, to dangerous but unlikely to abort, to likely to kill the fetus by killing the mother¯as considerable modern research has verified. No wonder anthropologists Georges Devereaux concluded that primitive abortion techniques (including ingestion, injury, and intrusion techniques) were tantamount to suicide.

This is why the legal record in the Middle Ages contain so few prosecutions for voluntary abortions (whether for married or for unmarried women)¯and is so full of prosecutions for infanticide (for both married and unmarried women). Spivack never mentions the prevalence of infanticide, a topic I address in Chapter 2. These simple facts also explain why so many abortion attempts were prosecuted (before the Reformation) as witchcraft rather than as abortion or attempted abortion: Often no one knew whether the woman was pregnant, but with the right evidence one could easily tell that she, and her associates, were casting spells and using magical potions.

Finally, Spivack tries to make a great deal out of the presentation of these formulas as being intended to relieve “obstructed menses” rather than abortion. Despite admitting that the harsh and unhealthy lives that women then lived caused many problems with their menstrual cycles and that often no one could determine if pregnancy was the cause of a missed period, Spivack insists that everyone must have understood that the potions, if they worked, actually caused an abortion.

Yet the only source that Spivack quotes at length stated that these potions were to be avoided if the women suspected she was pregnant, and that if the potion were to produce an abortion, it would be murder. Spivack tells us that the reference to murder was a mere “afterthought,” and besides it was all part of a code so that the author would not get in trouble while conveying the necessary information. She does not reveal how one is to recognize an insincere afterthought apart from its inconvenience for her argument. And why would there be a need for a code if, as Spivack insists, most people (including those in authority) saw nothing wrong with abortion?

Spivack is no more satisfying with legal materials. She repeatedly insists that the records from royal courts involved (1) unmarried women, (2) undergoing late-term abortions, and (3) involving violence against the women. From these claims, she concludes that abortion early in gestation or as a means of birth control within marriage was not a crime, at least without a violent assault on the woman.

In fact, most of the legal records do not clearly indicate the marital status of the woman. In the face of this silence, Spivack infers over and over again that the woman was unmarried and it was resort to abortion to hide her other crime (fornication or adultery) that was the target of the prosecution, not the killing of the child. She never considers why we should consider the marital status of the woman relevant if the records of the time didn’t bother to mention that status. Moreover, Regina v. Sims (1601), one of the best known of the abortion cases in English law, clearly involved a married woman.

As for the timing of the abortion, Spivack closely analyzes the phrasing of a few legal records to conclude that the child was close to being born. This, she asserts, was true of all of the abortion cases from the period she studies. She places great weight on the use of the Latin term puer (child) rather than infantum (infant) as indicating a late-term abortion, or the description of the mother as “great with child” as indicating that the woman was in an advanced state of pregnancy.

It is unclear whether describing a fetus as a puer instead of an infantum actually advances her argument, as both terms normally refer to a child after it is born and neither taken by itself would suggest an embryo or an early fetus, while the “great with child” expression is rare in the legal records. And she simply fails to grapple with the significance in all of these matters that the legal records generally describe the wrong as the killing of a “child”¯whether puer or infantum .

Spivack’s willingness to ignore the many other cases that do not support her position is most telling with Rex v. Code , a case from 1281, in which the court’s record indicates that the dead child was of “one month’s gestation.” Altogether, there are dozens of such cases involving an abortion in the period 1200 to 1700, all of which are discussed and many of which are quoted, in Chapters 3 and 4 of Dispelling the Myths of Abortion History .

I could go on and on, as I did in my book. But I think the point is clear. Spivack assumes what she needs to demonstrate, ignores the evidence and analysis that I developed, and reads back into the historical record modern ideas that most likely never occurred to the people of the time. It makes for a compelling story¯if one overlooks its internal inconsistencies and anachronisms. As such, it is representative of the “scholarship” supporting the new orthodox history of abortion¯a history devised (and still used) in order to support a claimed constitutional right to choose abortion.

While those who read the “personal aside” that opens my book will know that I am not opposed to abortion before eight weeks of gestation, there is simply no basis in history for the claim that such a right is embedded in our Constitution.

Joseph W. Dellapenna is Professor of Law at Villanova University School of Law and the author of Dispelling the Myths of Abortion History.

References

Dispelling the Myths of Abortion History by Joseph W. Dellapenna

Supreme Confusion ” by Michael M. Uhlmann ( First Things , June/July 2007)

To ‘Bring Down the Flowers’: The Cultural Context of Abortion History in Early Modern England ” by Carla Spivack ( William & Mary Journal of Women and the Law , Vol.14, Issue 1)

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