1792 case reveals key founders viewed abortion as a private matter
Alito’s evidence that abortion was always considered a criminal act, and therefore something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped to laws that states enacted, mostly in the mid to late 19th century, to criminalize abortion. This superficial study of abortion in early America was barely complete, particularly because it ignored the history of abortion in the years when the Constitution was written and ratified.
At that time, abortion was governed by Anglo-American common law. In this setting, the procedure was legal before “acceleration”, or the moment when the pregnant person first felt fetal movement – a very subjective stage that usually occurred between 16 and 22 weeks of gestation. Yet even after the acceleration, few people were prosecuted for abortions, let alone convicted – Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: at the beginning of the republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.
Indeed, contrary to Alito’s assertions in Dobbsthree founders of Virginia – Thomas Jefferson, Patrick Henry and John Marshall – did not press charges in a sensational court case of the time in which evidence of an abortion was discovered.
In 1792, 18-year-old bachelor Nancy Randolph became pregnant by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, his sister Judith, on their aptly named Cumberland County plantation in Virginia. “Weird.”
In September, the cousin and sister-in-law of Nancy and Judith, the daughter of Jefferson Martha Jefferson Randolph, visited and found Nancy sick and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended guaiac guman herb known to treat “menstrual obstruction” a euphemism for pregnancy. When she got home, she sent the weed to Nancy, who she warned she might “Producing an abortion.”
Two weeks later, Richard, Judith and Nancy visited the home of their cousins, Randolph and Mary Randolph Harrison. Nancy appeared ill and went to bed early, waking up screaming in the middle of the night. The next morning, Nancy’s sheets were bloody. Randolph Harrison saw blood on the stairs and noted “[Nancy’s] considerable pallor and an unpleasant smell.
When an enslaved man found what appeared to be a white fetus on a pile of wood, rumors spread through the slave community to whites of all classes. quickly, reaching Philadelphia, where Jefferson expressed sympathy for Nancy in a letter to his daughter Martha, stating, “I only see guilt in one person, not in her.” Jefferson’s response was typical of that era, a time when upper-class white women like Nancy were considered morally pure and sexually chaste by nature.
Many to the general public believed that Richard had impregnated his sister-in-law – which was incest under Virginia law – and that he also murdered a living child. His honor and his life were in danger. Richard vehemently asserted his innocence in a newspaper. His public statement had little effect, and under mounting pressure he surrendered to the county sheriff. Richard was charged with “criminally murdering or being an accomplice to a child delivered from the body of Nancy Randolph”.
Medically, five pieces of evidence suggest that what happened was not the killing of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortion. Second, witnesses reported her enlarged abdomen, but not a full-term pregnancy. Third, Nancy’s short cries were more consistent with latent work than active work. In latent labor, the cervix dilates four to six centimeters, sufficient for the passage of a one to two pound fetus. Uncomfortable but not unbearable, and sometimes lasting several days, latent second-trimester labor ends abruptly with the expulsion of the fetus. (Eventually, hours of painful active labor ensue to achieve 10 centimeter dilation and pushing efforts.)
Fourth, no one has reported a baby’s cry, suggesting pre-viability outside the womb. Finally, Nancy later delivered a full-term son, indicating that she had no risk factors for second-trimester miscarriage, such as uterine Where cervical anomalies. Overall, the evidence supports the conclusion that Nancy ingested herbs to induce second-trimester abortion and that her efforts were successful.
In April 1793, Richard appeared before a court of county judges who weighed the merits of the serious criminal charges to decide whether they should be tried in a superior court. Few defendants in the 1790s had a lawyer, but Richard and his father-in-law assembled a good team: Henry, a charismatic litigant and former governor famous for his “Give me freedom or give me death“word; Marshal, a rising star and future Chief Justice of the United States Supreme Court; and William Campbell, the American attorney from Virginia.
Circumstantial obstetrical evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrison’s home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and gave birth to the herb, noting that guaiacum gum was “designed” to induce abortion. But he did not describe it as a crime.
No effort appears to have been made to determine whether the pregnancy had reached the accelerated stage. If it was after the acceleration, the state could have prosecuted Nancy and Martha. Instead, Henry deftly undermined the credibility of prosecution witnesses, and Marshall successfully took the untenable position that there never was a pregnancy and, therefore, Richard could not be guilty of murder.
While the release of Richard – a wealthy white man with great lawyers – was unsurprising, what was remarkable and relevant to today’s proceedings was that evidence of an intentional abortion was discovered in an unmarried, propertyless woman and was not fully investigated or acted upon. Nancy would later admit that she was pregnant, but neither she nor her accomplice were ever charged.
Abortion was later criminalized in Virginia and other states in the 19th century. But these laws reflected more the development of modern gynecology than a change in morals. The curetteintroduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow passage of a curette, which removes tissue from the uterus. Abortion has shifted from a private, female affair to the remit of male health professionals, who have excluded other providers by influencing lawmakers.
Therefore, the most historically accurate conclusion is the majority opinion of Justice Harry A. Blackmun in Roe vs. Wade (1973), that “at the time of the adoption of our Constitution, and for most of the 19th century, abortion was viewed with less disfavor than under most American laws now in force. In other words, a woman enjoyed a significantly broader right to terminate a pregnancy than in most states today. ”
Although Marshall’s notes on Commonwealth vs. Randolph are numerous, this episode is poorly documented in county court records and therefore no formal case law has been generated. Either way, the episode is worth reviewing because it involved key Founders who occupied very different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshal believed in a strong national government. Jefferson primarily supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that the abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy then married Governor Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.
On the contrary, the saga demonstrates that the concept of abortion as a private matter has been “deeply rooted” in the minds of our nation’s founders. As Americans consider their next step on the abortion issue at the state level, they should be mindful of the precedents set by these early giants of our republic.