Amicus Curiae Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)

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<_ 7] ‘Supreme Court, U.S

. e a

Nos. 91-744 and 91-902

FILED

In The

MAR G 1992

Supreme Court of the United |Sfifeg’ “"*

October Term, 1991

PLANNED PARENTHOOD OF SOUTHEASTERN

PENNSYLVANIA, et al.,

Petitioners,

ROBERT P. CASEY, et al.,

Respondents.

ROBERT P. CASEY, et al.,

Petitioners,

PLANNED PARENTHOOD OF SOUTHEASTERN

PENNSYLVANIA, et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

BRIEF OF 250 AMERICAN HISTORIANS

AS AMICI CURIAE IN SUPPORT OF

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA

JANE E. Larson Syivia A. Law*

Northwestern University New York University

School of Law School of Law

357 East Chicago Avenue 40 Washington Sq. So.

Chicago, IL 60611 New York, NY 10012

(312) 503-0321 (212) 998-6265

CLyDE SPILLENGER

University of Wisconsin

Law School

975 Bascom Mall

Madison, WI 53706

(608) 263-2545

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

prs Be yy sy). iii

SU I Es 6 vc bv cccccucccccccucsvceueses l

SUMMARY OF ARGUMENT ....................... 1

RE ee eee eT er Tree Tee Pere 2

I. OUR TRADITIONS AND HISTORY HELP

DEFINE THE CONTOURS OF FUNDAMENTAL

CONSTITUTIONAL RIGHTS, INCLUDING THE

SE WU WOON vo wecc cs cccceuccscecececs 2

Il. AT THE TIME THE FEDERAL CONSTITUTION

WAS ADOPTED, ABORTION WAS KNOWN AND

eT I web SeNauu beCesecneseésceseesees 5

Ill. THROUGH THE NINETEENTH CENTURY,

ABORTION BECAME EVEN MORE WIDELY

ACCEPTED AND HIGHLY VISIBLE........... 8

IV. NINETEENTH-CENTURY ABORTION RESTRIC-

TIONS SOUGHT TO PROMOTE OBJECTIVES

THAT ARE TODAY EITHER PLAINLY INAPPLI-

CABLE OR CONSTITUTIONALLY IMPERMISSI-

A WeSS a GnechwcePdeCURSvaceccaesvesecedevess 11

A. From 1820-1860, Abortion Regulation In The

States Rejected Broader English Restrictions

And Sought To Protect Women From Partic-

ularly Dangerous Forms of Abortion ........ 1]

B. A Central Purpose Of Abortion Regulation In

The Nineteenth Century Was To Define Who

Picea Gee celia y keh enka whe oe ee < 13

TABLE OF CONTENTS - Continued TABLE OF AUTHORITIES

Page Page

C. Enforcement Of Sharply Differentiated Con- | Cases:

cepts Of The Roles And Choices Of Men And 274. 66 Am. Dec. 77 (1856) ..... 5

Women Underlay Regulation Of Abortion And | Abrams v. Feshee, 3 lows : , , ,

Contraception In The Nineteenth Century .... 15 Barnes v. Allen, 1 Keyes 390 (N.Y. 1864)............. 18

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)..... 17

D. Nineteenth-Century Contraception And Abor- jgiteas bean (

tion Regulation Also Reflected Ethnocentric Commonwealth v. Follansbee, 155 Mass. 274, 29 N.E.

Fears About The Relative Birthrates Of Immi- cic sc ccc decescccccescres: 5

grants And White Protestants ............... 20

' Commonwealth v. Parker, 50 Mass. (9 Met.) 263, 43

EEE ESOP CT CTEeET ET TET Se 5

V. ENFORCEMENT OF ABORTION RESTRICTIONS

IN THE FIRST HALF OF THE TWENTIETH CEN- Cooper v. State, 22 N.J.L. (2 Zab.) 52 (1849).......... 27

TURY FOLLOWED ENTRENCHED ETHNIC AND

CLASS DIFFERENTIATIONS, AFFIRMED TRADI- Eisenstadt v. Baird, 405 U.S. 438 (1972).............. 29

TIONAL CONCERNS ABOUT ENFORCING GEN- 17

DER ROLES, AND IMPOSED ENORMOUS COSTS Frontiero V. Richardson, 411 U.S. 677 (1973) ro eee a ee

UPON WOMEN ...... 0... cece eee cece eee e eens 22 Griswold v. Connecticut, 381 U.S. 479 (1965)........4, 29

| . 2 ee so 5

VI. EMPHASIS ON THE FETUS BECAME CEN- Hayiels v. Geno, 13 lows 177 (1865)

TRAL TO CULTURAL AND LEGAL DEBATE Martin v. Struthers, 319 U.S. 141 (1943)............... 2

OVER ABORTION ONLY IN THE LATE TWEN-

TIETH CENTURY, WHEN TRADITIONAL JUS- McCollum v. Board of Education, 333 U.S. 203 (1948)..... 2

TIFICATIONS FOR RESTRICTING ACCESS TO ; .

ABORTION BECAME CULTURALLY ANACH- McRae vy. Califano, 491 F. Supp. 630 (E.D.N.Y. 1980)... . 25

cng OR CONSTITUTIONALLY IMPER- %6 Mississippi University for Women v. Hogan, 458 U.S.

Te ee Nn. occ ccceeccccccs OD

VII. A PRESUMED INTEREST IN PROTECTING Moore v. East Cleveland, 431 U.S. 494 (1977).......... 2

FETAL LIFE DOES NOT JUSTIFY DENYING Munn v. Illinois, 94 U.S. 113 (1877)..............000-- ?

WOMEN THEIR HISTORIC LIBERTY TO

CHOOSE ABORTION.................ccccceee 28 Olmstead v. U.S., 277 U.S. 438 (1928)................. 4

Orr v. Orr, 440 U.S. 268 (1979)................... oan

es bn 30

People v. Stanko, 402 Ill. 558 (1949) ................. 23

TABLE OF AUTHORITIES — Continued

Page

People v. Stanko, 407 Ill. 624 (1951) ................. 23

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 947 F.2d 683 (3d Cir. 1991)................. 29

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 744 F. Supp. 1323 (E.D. Pa. 1990)........... 30

Plessy v. Ferguson, 163 U.S. 537 (1896) ............... 2

Poe v. Ullman, 367 U.S. 497 (1961) ................... 4

£m OMe OU passim

Scott v. Sandford, 19 How. 1 (1857) ...............4..- Z

Stantan v. Seanten, 423 U.S. 7 CISTS)...cccccccccccecs 29

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986).................. 3

United Automobile Workers v. Johnson Controls, 111

I 17

United States v. Foote, 25 Fed. Cas. 1140 (S.D.N_Y.

RE Da EER PTA ee Pees. CUS RAP age Pore 20

Webster v. Reproductive Health Services, 492 U.S.

Dr. sto 6bo odecsseubadele baat ekeceech es mes 29

CONSTITUTION, STATUTES, AND REGULATIONS:

Comstock Act, Ch. 258, § 1, 17 Stat. 598 (1873),

currently codified at 18 U.S.C. § 1461 (1988)....... 19

oo Gf ©, © SE F 8.2) | eee 12

Pa. Ge. Dee, SO BO, FSS COPED cc cccccccscccecss 19

TABLE OF AUTHORITIES — Continued

Page

The Public Statute Laws of the State of Connecticut

REE Tl em Nh ai en Fa 12

N.Y. Rev. Stat., pt. IV, ch. I, tit. VI, § 21 (1828 to

SE a EI rg eR OPP Es LEER ve es a EI Og eae Ren WP gee 12

MISCELLANEOUS:

M. Abramowitz, Regulating the Lives of Women:

Social Welfare Policy from Colonial Times to the

tN i eGwas eucuesa ee 17

AMA Editorial, Abortion or Removal of Pregnant

Uterus, 96 J. Am. Med. Ass'n 1169, April 14, 1931... . 24

P. Aries, Centuries of Childhood: A Social History of

Family Life (R. Baldick trans. 1962)................. 7

Atlee & O'Donnell, Report of the Committee on

Criminal Abortion, XXII Transactions of the Amer-

ican Medical Association 241 (1871)................ 16

R. Baxandall, L. Gordon & S. Reverby, eds., Amer-

ica’s Working Women: A Documentary History -

ue edebeeceecesces 25

1 W. Blackstone, Commentaries *442 ................. 17

J. Brodie, Family Limitation in American Culture,

Ph.D. Dissertation, University of Chicago, 1982....... 6

Chicago Tribune, Nov. 21, 1912, p. 1 ................. 21

Chused, Married Women’s Property Law: 1800-1850,

ee ls ee ED oe cbecesRicvececesee ics 17

N. Culpeper, The English Physician (1799) ............. 6

Cott, Eighteenth-Century Family and Social Life

Revealed in Massachusetts Divorce Records, 10 J.

ee epuseneeééececeus 7

D. Davis, From Homicide to Slavery: Studies in

cea bae seuss exer 20

TABLE OF AUTHORITIES —- Continued

Page

Dayton, Taking the Trade: Abortion and Gender Rela-

tions in an Eighteenth-Century New England Vil-

lage, 48 Wm. & Mary Q. 19 (1991)................. 6

J. D’Emilio & E. Freedman, /ntimate Matters: A His-

tory of Sexuality in America (1988).................. 7

C. Degler, At Odds: Women and the Family in Amer-

ica from the Revolution to the Present (1980)

ich ccc aeceanebarwaabtie websted benncece 8, 9, 10, 13, 21

Demos, “Images of The American Family, Then and

Now,” in Changing Images of the Family (V. Tufte

% & ER REE ee nee 9

Diary of Martha Moore Ballard, Maine State Manu-

Se I, ES Be WU vaiceccdncdceccvcvcsces: 6

Dubois, Outgrowing the Compact of the Fathers:

Equal Rights, Woman Suffrage, and the United

States Constitution, 1820-1878, 74 J. Am. Hist. 836

PL deans esens debe eechdesceeccuéneecsaesnecs 16

Dudziak, Just Say No: Birth Control in the Connecti-

cut Supreme Court Before Griswold v. Connecticut,

ecu ccacneséscawes 25

B. Ehrenreich & D. English, For Her Own Good: 150

Years of the Experts’ Advice to Women (1979)....... 14

Faragher, History from the Inside-Out: Writing the

History of Women in Rural America, 33 Am. Q. 536

Dkben tn eWentke hee she baccesds can bnecsiedee once ws)

D. Flaherty, Privacy in Colonial New England (1972)..... 7

E. Flexner, Century of Struggle: The Woman's Right's

Movement in the United States (rev. ed. 1975)

vii

TABLE OF AUTHORITIES — Continued

Page

E. Foner, Free Soil, Free Labor, Free Men: The Ideol-

ogy of the Republican Party Before the Civil War

DCA tcheteeleahs cecudhedenddseudwndéeneseeesss 20

G. Frederickson, The Inner Civil War: Northern Intel-

lectuals and the Crisis of the Union (1965).......... 20

G. Geison, ed., Professions and Professional Ideo-

ey te I I oda cc reccccvescedscacesces 14

L. Gordon, Woman's Body, Woman's Right: Birth Con-

trol in America (rev.ed. 1990) ....10, 11, 18, 19, 20, 21

Gordon, “Why Nineteenth Century Feminists Did Not

Support ‘Birth Control’ and Twenticth Century

Feminists Do,” in Rethinking the Family: Femi-

nism, Reproduction, and the Family (B. Thorne &

SEE whucebeocesecdececcteesensases 19

M. Gordon, The American Family: Past, Present and

ee ce ere cada de dekh shen ected enn ts 400s 8

M. Grossberg, Governing the Hearth: Law and Fam-

ily in Ninetcenth-Century America (1985)

ET eres Pree 7, 12, 19, 20, 27, 28

Haggard, Abortion: Accidental, Essential, Criminal,

Address Before the Nashville Academy of Medicine,

Gs Wy NG a0 bo bideSKd Kec cedn ce Westadecececcceus 8

N. Hawthorne, The Scarlet Letter (1850) ............... 7

J. Higham, Strangers in the Land: Patterns of Ameri-

can Nativism, 1860-1925 (1963) ...............5055. 20

Hoff-Wilson, “The Illusion of Change: Women and

the American Revolution,” in The American

Revolution: Explorations in the History of

American Radicalism (A. Young ed. 1976)............ 8

viii

TABLE OF AUTHORITIES — Continued

Page

R. Hofstadter, Social Darwinism in American Thought

Pas haGNGAEGESH EA SOE NEUES USER eNO US Hed ce nes 20

D. Kennedy, Birth Control in America: The Career of

eo on 6 cee ne nad eebccvccscenves 21

D. Kevles, Jn the Name of Eugenics: Genetics and the

Uses of Human Heredity (1985) ...............6045. 21

L. Koehler, A Search for Power: The “Weaker Sex” in

Seventeenth-Century New England (1980)............. 6

i i cekeeedecueecetees 25

P. Laslett, The World We Have Lost (1972)............. 7

LaSorte, Nineteenth Century Family Planning Prac-

tices, 14 J. of Psychohistory 163 (1976)............. 10

J. Leavitt, Brought to Bed: Child-Bearing in America,

lf a ee 14

Leavitt, The Growth of Medical Authority: Technol-

ogy and Morals in Turn-of-the-Century Obstetrics,

1 Med. Anthropology Q. 230 (1987) ................ 28

S. Lipset & E. Raab, The Politics of Unreason: Right-

Wing Extremism in America, 1790-1970 (1970)....... 20

K. Luker, Abortion and the Politics of Motherhood

Sessa ds hnddduconséwsenneseeseraeeeetess 22, 24, 25

A. McLaren, Reproductive Rituals: The Perception of

Fertility in England from the Sixteenth Century to

the Nineteenth Century (1984)..........0..00.000600045. 6

TABLE OF AUTHORITIES — Continued

Page

Means, The Phoenix of Abortional Freedom, \7 N-Y.

Se EC occdeeensdaeh duu s8hGs ce badevaceced 6, 12

J. Mohr, Abortion in America: The Origins and Evo-

lution of National Policy, 1800-1900 (1978)..... passim

ee I I, MO Os oo 0 bc se etacecceecsuess 10

M. Norton, Liberty's Daughters: The Revolutionary

Experience of American Women, 1750-1800 (1980) ..... s

Note, To Have and To Hold: The Marital Rape

Exemption and the Fourteenth Amendment, 99

ee, EE on cv GkceeeNenewstececens 17

R. Petchesky, Abortion and Woman's Choice: The

State, Sexuality & Reproductive Freedom (rev. ed.

PL AAd aca bUh beech det ckhsesesskiebcces 9, 11, 27

E. Pleck, Domestic Tyranny: The Making of Social

Policy Against Family Violence from Colonial

Times to the Present (1987) ..........0.00 0c cece ees 17

W. Prosser, Law of Torts (3d ed. 1971)................ 18

Quay, Justifiable Abortion — Medical and Legal Foun-

dations, 49 Geo. L. Rev. 173 (1960-61)............. 12

Reagan, “About to Meet Her Maker”: Women, Doc-

tors, Dying Declarations, and the State's Investiga-

tion of Abortion, Chicago, 1867-1940, 77 J. Am.

ee als ocean adebeutaeeenes 22

L. Reagan, When Abortion Was a Crime: The Legal

and Medical Regulation of Abortion, Chicago,

1880-1973, Ph.D. Dissertation, University of Wis-

consin-Madison, 1991

PES | Ep Per TR rere”, Sane Sp meme 22, 23, 24

TABLE OF AUTHORITIES — Continued

Page

J. Reed, From Private Vice to Public Virtue: The Birth

Control Movement and American Society Since

Cs acd sede aeenenheedebinetseuneesé< 21

Rodrique, “The Black Community and the Birth Con-

trol Movement,” in Passion and Power: Sexuality

and History (K. Peiss & C. Simmons eds. 1989)...... 9

W. Rothstein, American Physicians in the Nine-

teenth Century: From Sects to Science (1972)........ 14

M. Ryan, Cradle of the Middle Class: The Family in

Oneida County, New York, 1790-1865 (1981) ........ 16

M. Ryan, ed., Womanhood in America: From Colonial

Pe GP Ge I PT Bo ceca eeeccenesesesess 25

Siegel, Reasoning from the Body: A Historical Per-

spective on Abortion Regulation and Questions of

Equal Protection, 44 Stan. L. Rev. 261 (forthcom-

Pe nea ek ee nkinesseseehheaeenedensye¥sen s 13, 19

Smith, “Family Limitation, Sexual Control, and

Domestic Feminism in Victorian America,” in A

Heritage of Her Own (N. Cott. & E. Pleck eds.

hah ns Shs 0504s kSs See RRR OEE a bE she wen Se eeeees )

Smith & Hindus, Premarital Pregnancy in America,

1640-1971: An Overview and Interpretation, 5 J.

Interdisciplinary Hist. $37 (1975).................4.. 8

C. Smith-Rosenberg, Disorderly Conduct: Visions of

Gender in Victorian America (1985)............. passim

J. Spruill, Women’s Life and Work in the Southern

Comes Corres GU. GU. FOGG cc ccccccesccccccsccs 6

TABLE OF AUTHORITIES — Continued

Page

P. Starr, The Social Transformation of American Med-

icine: The Rise of a Sovereign Profession and the

Making of a Vast Industry (1982)..............0005. 14

Stix, A Study of Pregnancy Wastage, 13 Milbank

Memorial Fund Q. 347 (1935)........... 0c eee e eens 22

Stix & Wiehl, Abortion and Public Health, 28 Am. J.

a ee 22

H. Storer, Why Not? A Book for Every Woman (1866) .... 21

F. Taussig, Abortion, Spontaneous and Induced: Med-

leal end Social Aspects (1GSE) ..... cc ccccccccvecnes 22

R. Thompson, Sex in Middlesex: Popular Mores in a

Massachusetts County, 1649-1699 (1986) .............

L. Ulrich, A Midwife’s Tale: The Life of Martha Bal-

lard, Based on Her Diary, 1785-1812 (1990) .........

Weisbrod, Birth Control and the Black American: A

Matter of Genocide?, 10 Demography 571 (1973).... 21

Wells, Family Size and Fertility Control in Eighteenth

Century America: A Study of Quaker Families, 25

as oc adc ek sere snceeesed ene

R. Wertz & D. Wertz, Lying-in: A History of Child-

ee ec aeeeeoncesees

A. Wilder, History of Medicine (1901).............455.

BRIEF OF 250 AMERICAN HISTORIANS

AS AMICI CURIAE IN SUPPORT OF

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA

INTEREST OF AMICI

Amici are 250 professional American historians who, with the

permission of the parties, here seek to provide the Court a rich and

accurate description of our national history and tradition in relation

to women’s liberty to choose whether to terminate a pregnancy.

Amici represent a diverse array of historical specialties and

approaches. They are united, however, in their conviction that this

Court's decision in Roe v. Wade is supported by American history

and the lessons that history imparts.

SUMMARY OF ARGUMENT

This Court has long consulted our nation’s history and tradi-

tions to determine the contours of fundamental constitutional

rights. This brief will demonstrate that for much of our nation’s

history, abortion was tolerated and not illegal; that for much of the

nineteenth century, abortion remained legal prior to quickening;

and that when states did enact laws regulating abortion, these

Statutes did not punish women. A variety of complex factors, and

not simply moral or theological impulses, underlay the nineteenth-

century laws restricting abortion: concem for women’s health, the

medical profession’s desire to control the practice of medicine,

openly discriminatory ideas of the appropriate role for women,

Opposition to non-procreative sexual activity and to the dissemina-

tion of information concerning birth control, and even concem for

racial and ethnic purity. This brief discusses the prevalence and

visibility of abortion as a common social practice in the nineteenth

century. Above all, this historical account refutes the erroncous

assumption that abortion restrictions enjoyed broad social support

in past eras.

Moreover, this nation’s history confirms that abortion

restrictions have imposed profound burdens on the liberty and

equality of women. The Court should therefore reaffirm its

commitment to providing strong constitutional protection to

women’s fundamental liberty interest in reproductive choice

and control of their own bodies.

ARGUMENT

I. OUR TRADITIONS AND HISTORY HELP DEFINE

THE CONTOURS OF FUNDAMENTAL CONSTITU-

TIONAL RIGHTS, INCLUDING THE RIGHT TO

PRIVACY.

Since the beginning of the Republic, no Justice of the

Supreme Court has seriously disputed that the meaning of our

Constitution is to be determined by interpreting its words in

light of our nation’s history and traditions. “{A]n approach

grounded in history imposes limits on the judiciary that are

more meaningful than any based on [an] abstract formula.”

Moore v. East Cleveland, 431 U.S. 494, 503 (1977). Even

when this Court has not specifically identified “history” as a

source of authority, it has frequently taken “judicial notice” of

this country’s history and traditions in resolving difficult

constitutional issues.! Because an understanding of our

nation’s history rightly influences this Court's fundamental

constitutional understandings, it is essential to capture that

history deeply and accurately. It is no accident that Scott v.

Sandford, 19 How. 1, 19-20 (1857), and Plessy v. Ferguson,

163 U.S. 537, 544, 550-51 (1896) — two of this Court’s mosi

discredited decisions — rested largely on disputed and insup-

portable readings of history.

' See, e.g., Munn v. Illinois, 94 U.S. 113, 125 (1877) (“{I)t has been

customary in England from time immemorial, and in this country from its

first colonization, to regulate ferries, common carriers, hackmen, bakers,

millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of

charge to be made for services rendered, accommodations furnished, and

articles sold”); Martin v. Struthers, 319 U.S. 141, 145 (1943) (door-to-door

distribution of literature protected by First Amendment ‘ecause “in accor

dance with the best tradition of free discussion”); McCollum v. Board of

Education, 333 U.S. 203, 213 (1948) (Frankfurter, J., concurring) (“released-

lume” provision unconstitutional in light of the “relevant history of religious

education in America” and “the place of ‘released-time’ in that history”).

The relevance of history to this Court's task often goes

‘beyond exploration of “framers’ intent”; not every facet of

the Constitution’s meaning can be determined by reference to

its words or to the apparent intent of its drafters. Justice

White has said:

{[Tjhis Court does not subscribe to the simplistic

view that constitutional interpretation can possibly

be limited to the “plain meaning” of the Constitu-

tion’s text or to the subjective intention of the

Framers. The Constitution is not a deed setting forth

the precise metes and bounds of its subject matter;

rather it is a document announcing fundamental

principles in value-laden terms that leave ample

scope for the exercise of normative judgment by

those charged with interpreting and applying it.

Thornburgh v. American College of Obstetricians and Gyne-

cologists, 476 U.S. 747, 789 (1986) (White, J., dissenting).

But if history cannot always pinpoint the views of the

framers, the historical perspective can suggest fundamental

principles by which to measure the scope of valued constitu-

tional rights. In particular, history and tradition help give

content to the open-textured provisions of our Constitution:

the prohibition in the Fifth and Fourteenth Amendments of

State action that deprives citizens of life, liberty or property

without due process of law; the Fourteenth Amendment's

guarantee of equal treatment under the law; and the Ninth

Amendment’s command that the “enumeration in the Consti-

tution, of certain rights, shall not be construed to deny or

disparage others retained by the people.”

In 1961, Justice Harlan wrote of the importance of his-

tory and tradition in explicating the scope of the due process

clause respecting bodily privacy:

Due process has not been reduced to any formula;

its content cannot be determined by reference to any

code. The best that can be said is that through the

course of this Court’s decisions it has represented

the balance which our Nation, built upon postulates

of respect for the individual, has struck between

that liberty and the demands of organized soci-

ety... . The balance of which I speak is the balance

struck by this country, having regard to what history

teaches are the traditions from which it developed

as well as the traditions from which it broke. That

tradition is a living thing.

Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissent-

ing). See also Griswold v. Connecticut, 381 U.S. 479, 501

(1965) (Harlan, J., concurring). Justice Harlan’s words

express the Constitution's general protection of the right to

privacy, see Griswold, 381 U.S. at 483-86, and Olmstead v.

United States, 277 U.S. 438, 474-75 (1928) (Brandeis, J.,

dissenting), and explain the role of history in illuminating

how the autonomy to make fundamental personal decisions is

basic to individual liberty. These words are especially rele-

vant to this case. The history of abortion in this country

illustrates that this Court was correct in Roe v. Wade in

holding that the right to choose an abortion is fundamental to

women's liberty.

This Court’s decision in Roe v. Wade, 410 U.S. 113

(1973), accurately recounted the history of-abortion in the

United States and at British common law. Since 1973 and

Roe, ongoing historical research and scholarship have

expanded and deepened historians’ understanding of abortion

in America. In addition to the important legal-historical

sources relied on in Roe (past statutes, legislative debates,

and the decisions of common-law courts), historians in recent

decades have begun to document people's actual beliefs and

practices throughout history, offering an even deeper and

richer understanding of baseline American values and tradi-

tions. As scholars familiar with these varied methods of

historical inquiry, amici believe the Court must consult evi-

dence of daily life as well as official and governmental action

to uncover the beliefs and practices of the broad range of

American society. It is this inclusive perspective on the past

that should inform the Court's investigation of our nation’s

history and traditions. Such an inquiry does not mean that

what has prevailed in the past must govern the present, for

that would deny any role for human progress. Rather, consid-

eration of past practices and beliefs offers real lessons about

the centrality of those practices and the meaning of attempts

to regulate them.

Il. AT THE TIME THE FEDERAL CONSTITUTION

WAS ADOPTED, ABORTION WAS KNOWN AND

NOT ILLEGAL.

As this Court demonstrated in Roe v. Wade, abortion was

not illegal at common law.? Through the nineteenth century,

American common law decisions uniformly reaffirmed that

women committed no offense in seeking abortions.’ Both

common law and popular American understanding drew dis-

tinctions depending upon whether the fetus was “quick,” /.e.

whether the woman perceived signs of independent life.*

There was some dispute whether a common law misdemeanor

occurred when a third party destroyed a fetus, after quicken-

ing, without the woman's consent. But carly common law

recognition of this crime against a pregnant woman did not

2 Roe v. Wade, 410 U.S. 113, 132-36 & n.21 (1973). See also J. Mohr,

Abortion in America: The Origins and Evolution of National Policy 3-\9

(1978).

3 For example, in 1845, Chief Judge Shaw of Massachusetts held that

abortion, with the woman's consent, was not punishable at common law

unless the fetus was quick. Commonwealth v. Parker, SO Mass. (9 Met.) 263,

43 Am. Dec. 396 (1845). In 1892, the Massachusetts Supreme Judicial Court

held that, despite statutory enactments regulating abortion, the woman having

an abortion was not a principal or an accomplice. Commonwealth v. Fol:

lansbee, 155 Mass. 274, 29 N.E. 471 (1892). In Abrams v. Foshee, 3 lowa

274, 278, 66 Am. Dec. 77, 80 (1856), the lowa Supreme Court held that

abortion prior to quickening was no crime. Hatfield v. Gano, 15 lowa 177

(1863), held that lowa's statutory enactment did not apply to abortion

produced by a woman herself. See C. Smith-Rosenberg, Disorderly Conduct

219-20 (1985).

4 See Roe v. Wade, 410 U.S. at 134-36; J. Mohr, supra note 2, at 24-26.

In the ordinary language of the eighteenth century and much of the nineteenth

century, the term “abortion” meant the termination of pregnancy after the

point of quickening. /d. at 3-5.

diminish the woman's liberty to end a pregnancy herself in its

early stages.>

Abortion was not a pressing social issue in colonial

America, but as a social practice, it was far from unknown.®

Herbal abortifacients were widely known,’ and cookbooks

and women’s diaries of the era contained recipes for such

medicines.* Recent studies of the work of midwives in the

1700s report cases in which the midwives appeared to have

provided women abortifacient compounds. Such treatments

do not appear to have been regarded as extraordinary or illicit

by those administering them.?

5 See Roe v. Wade, 410 U.S. at 134-36; J. Mohr, supra note 2, at 24-26.

Means, The Phoenix of Abortional Freedom, 17 N.Y.L. Forum 335, 336-53

(1971) demonstrates that commentators who assert that a misdemeanor could

be charged against a third party who destroyed a fetus by assaulting a woman

late in pregnancy misread the common law precedents upon which they

purport to rely. Even in cases involving brutal beatings of women in the late

stages of pregnancy, common-law courts refused to recognize abortion as a

crime, independent of assault upon the woman. See A. McLaren, Reproduc-

tive Rituals 119-121 (1984).

references to employment of herbal abortifacients by both single and married

women, either self-administered or procured by husbands, male partners or

family members. Specific instances are documented in R. Thompson, Sex in

Middlesex: Popular Mores in a Massachusetts County, 1649-1699 11, 25-26,

42, 47, 51, 78, 107-08, 182-83 (1986); J. Spruill, Women's Life and Work in

the Southern Colonies 325-326 (1972, orig. pub. 1938); L. Koehler, A Search

for Power: The “Weaker Sex” in Seventeenth-Century New England 204-205

(1980). See also Dayton, Taking the Trade: Abortion and Gender Relations in

an Eighteenth-Century New England Village, 48 Wm. & Mary Q. 19 (1991)

(reporting instance of abortion by use of instrument). Compare A. McLaren,

supra note S, at 114 and generally at 113-44, reporting widespread evidence

of abortifacient use in England during the same era.

7 The classic work was N. Culpeper, The English Physician (1799). See

J. Brodie, Family Limitation in American Culture, Ph.D. Dissertation, Univer-

sity of Chicago, 1982, at 224-30.

® C. Smith-Rosenberg, supra note 3, at 228.

% One midwife reported, “She is suffering from obstructions and |

prescribed the use of particular herbs.” Diary of Martha Moore Ballard, Sept.

(Continued on following page)

The absence of legal condemnation of abortion in colonial

America is all the more significant because both families and

society valued children and population growth in a rural economy,

with vast unsettled lands, where diseases of infancy claimed many

lives. For these reasons, single women more often sought abortions

in the Colonial era than did married women.'° The absence of legal

condemnation is particularly striking in the New England culture of

tightly-knit, religiously homogeneous communities in which neigh-

bor observed the private behavior of neighbor and did not hesitate

to chastise those who violated pervasive moral norms of the

community.'! Further, in an era filled with extensive oral and

written moral prescripts from community and religious leaders, it is

notable that birth control and abortion were rarely the subject for

moralizing. Where abortion is noted, it is not the practice itself that

is subject of comment, but rather the violation of other social/

sexual norms that led to the pregnancy.'?

(Continued from previous page)

27, 1789, Maine State Manuscript Library. For a discussion of the possibility

that this may refer to an administered abortifacient, see L. Ulrich, A Midwife's

Tale: The Life of Martha Ballard, Based on Her Diary, 1785-1812 56 (1990).

10 M. Grossberg, Governing the Hearth \59 (1985). Accord J. D’Emilio

& E. Freedman, /ntimate Matiers 26 (1988) (“Cases of attempted abortion

usually involved illicit lovers, not married couples”).

'! Adultery, incest, insubordination by children, and even “living alone

not subject to the governance of family life,” were condemned by the colonial

America criminal law — but abortion was not. See Cou, Eighteenth-Century

Family and Social Life Revealed in Massachusetts Divorce Records, \0 J. of

Soc. Hist. 20, 22-24, 33 (1976); P. Lasleu, The World We Have Lost 37-38

(1973), D. Flaherty, Privacy in Colonial New England 42-43, 76 (1972), P.

Aries, Centuries of Childhood 405-07 (R. Baldick trans. 1962). For a more

popular, fictional treatment, see N. Hawthorne, The Scarlet Letter (1850).

12 J. D’Emilio & E. Freedman, supra note 10, at 12, report the

following case from the 1600s: “Captain William Mitchell, an influential

Marylander who served on the governor's council, not only impregnated Mrs.

Susan Warren and gave her a ‘physic’ to abort the child, but he also ‘lived ‘n

fornication’ with his pretended wife, Joan Toaste. Even so, the first charge

filed against Mitchell by the Maryland attorney was that he professed himself

to be an Atheist and openly mocked al! Religion.”

In the late eighteenth century, strictures on sexual behav-

ior loosened considerably. The incidence of premarital preg-

nancy rose sharply; by the late eighteenth century, one third

of all New England brides were pregnant when they married,

compared to less than ten percent in the seventeenth cen-

tury.'? Falling birth rates in the 1780s suggest that, at the time

of the drafting of the Constitution, the use of birth control and

abortion was increasing.'*

Ill. THROUGH THE NINETEENTH CENTURY,

ABORTION BECAME EVEN MORE WIDELY

- ACCEPTED AND HIGHLY VISIBLE.

Through the nineteenth century and well into the twen-

tieth, abortion remained a widely accepted practice, despite

growing efforts after 1860 to prohibit it.'* Changing patterns

of abortion practice and attitudes towards it can only be

understood against the background of dramatic change in

American economic and family life during this period.

During the period between ratification of the Constitution

and adoption of the Civil War Amendments, Americans

'3 M. Gordon, The American Family 173 (1978). For comprehensive

discussions see Smith & Hindus, Premarital Pregnancy in America,

1640-1971, 5 J. Interdisciplinary Hist. 537, 553-57 (1975); Hoff-Wilson, “The

Iilusion of Change: Women and the American Revolution,” in The American

Revolution 404 (A. Young ed. 1976).

'4 Wells, Family Size and Fertility Control in Eighteenth Century

America: A Study of Quaker Families, 2S Population Stud. 73 (1971); M.

Norton, Liberty's Daughters: The Revolutionary Experience of American

Women, 1750-1800 232 (1980).

1S C. Degler, At Odds 243-46 (1980). Several studies by physicians in

various parts of the U.S. suggest that in the mid-nineteenth century one

abortion was performed for every four live births. See J. Mohr, supra note 2,

at 76-80. Reports from the late 1870s estimated even greater numbers. /d. at

81-82. The Michigan Board of Health estimated in 1898 that one-third of all

pregnancies in that state ended in abortion. Haggard, Abortion: Accidental,

Essential, Criminal, Address Before the Nashville Academy of Medicine, Aug.

4, 1898, at 10, discussed in C. Smith-Rosenberg, supra note 3, at 221.

moved to cities and increasingly worked for wages. '© In 1787,

the average white American woman bore seven children; by

the late 1870s, the average was down to fewer than five; by

1900 it was 3.56.'7 Carl Degler calls this decline in fertility

“the single most important fact about women and the family

in American history.”'*

Urban couples limited family size for economic reasons:

working-class married women, faced with the material diffi-

culty of managing a family budget on a single male wage,

resorted to abortion as the most effective available means of

“conscious fertility control.”'? Other economic factors were

at work in restricting fertility.2° Middle-class Americans were

influenced by changing definitions of the family and of moth-

erhood. As men’s work patterns deviated further from those

of women, “wife” and “home” became powerful symbols of

men’s economic security and social standing.2! Even as

women were regarded as agents of reproduction, the expecta-

tion that they turn outward into the larger society served as an

incentive to limit the number of children they bore. Nine-

teenth-century women thus faced sharply conflicting

'© See C. Degler, supra note 15.

17 Smith, “Family Limitation, Sexual Control, and Domestic Feminism

in Victorian America,” in A Heritage of Her Own 226 (N. Cott & E. Pleck

eds. 1979). For discussion of continual decline in family size in the eighteenth

and nineteenth centuries, see R. Petchesky, Abortion and Woman's Choice

73-78 (rev. ed. 1990).

18 C. Degler, supra note 15, at 191.

19 See R. Petchesky, supra note 17, at 53; Rodrique, “The Black

Community and the Birth Control Movement,” in Passion and Power 141-42

(K. Peiss & C. Simmons eds. 1989).

20 The size of rural families also declined sharply during the nineteenth

century. Faragher, History From the Inside-Out: Writing the History of Women

in Rural America, 33 Am. Q. 536, 549 (1981); R. Petchesky, supra note 17, at

74. James Mohr observes that by the 1860s abortion “seemed to thrive as well

on the prairies as in large urban centers.” J. Mohr, supra note 2, at 100.

2! Demos, “Images of The American Family, Then and Now,” in

Changing Images of the Family 51, 52 (V. Tufte and B. Myerhoff eds. 1979).

demands: “The True Woman was domestic, docile, and repro-

ductive. The good bourgeois wife was to limit her fertility,

symbolize her husband's affluence, and do good within the

world.”22

To limit the number of children they bore, women of all

classes adopted a range of strategies, including abortion.

Through the 1870s abortion was “common,” a “matter of fact”

and often “safe and successful.”2? The most common methods

of abortion in the nineteenth century involved self-adminis-

tered herbs and devices available from pharmacists.24 None-

theless, women also relied on professional abortionists: in

1871, New York City, with a population of less than one

million, supported two hundred full-time abortionists, not

including doctors who also sometimes performed abortions.?°

For most of the nineteenth century, abortion was a visible

as well as common practice. “Beginning in the early 1840s

abortion became, for all intents and purposes, a business, a

service openly traded in the free market. . . . [Pervasive

advertising told Americans] not only that many practitioners

would provide abortion services, but that some practitioners

had made the abortion business their chief livelihood. Indeed,

abortions became one of the first specialties in American

medical history.”26

22 C. Smith-Rosenberg, supra note 3, at 225.

23 L. Gordon, Woman's Body, Woman's Right 51-52 (rev. ed. 1990).

24 See LaSorte, Nineteenth Century Family Planning Practices, 4\ J. of

Psychohistory 163, 166-70 (1976).

25 New York Times, Aug. 23, 1871, at 6.

26 J. Mohr, supra note 2, at 47. In the 1860s and 1870s both the popular

press and medical journals were full of advice about abortion services. /d. at

67-68. See also C. Degler, supra note 15, at 230.

IV. NINETEENTH-CENTURY ABORTION RESTRIC-

TIONS SOUGHT TO PROMOTE OBJECTIVES

THAT ARE TODAY EITHER PLAINLY INAPPLI-

CABLE OR CONSTITUTIONALLY IMPERMISSI-

BLE.

Nineteenth-century allopathic physicians enlisted state

power to limit access to abortion for reasons that are, in

retrospect, parochial, and have long since been rejected by

organized medicine. Indeed, between 1850 and 1880, the

newly formed American Medical Association, through some

of its active members, became the “single most important

factor in altering the legal policies toward abortion in this

country.”’27

The doctors found an audience for their effort to restrict

abortion because they appealed to specific social concerns

and anxieties: maternal health, consumer protection, discrimi-

natory ideas about the properly subordinate status of women,

and racist/nativist fears generated by the fact that clite Protcs-

tant women often sought abortions. Some of those doctors

also sought to attribute moral status to the fetus.

A. From 1820-1860, Abortion Regulation In The

States Rejected Broader English Restrictions And

Sought To Protect Women From Particularly

Dangerous Forms Of Abortion.

In 1803, English law made all forms of abortion crimi-

nal.2* Despite this model, for two decades, no American state

restricted access to abortion. In 1821, when one state, Con-

necticut, acted, it prohibited only the administration of a

“deadly poison, or other noxious and destructive substance”

27 J. Mohr, supra note 2, at 157. See also R. Petchesky, supra note 17,

at 79; L. Gordon, supra note 23, at 59.

28 The law was passed as part of a comprehensive revision of the

criminal code, urged by Lord Ellenborough, broadening the sweep of the

criminal law and increasing penalties. J. Mohr, supra note 2, at 23, Roe v

Wade, 410 U.S. at 136-38.

as a means of bringing about an abortion.2? Moreover, the act

applied only after quickening, and punished only the person

who administered the poison, not the woman who consumed

it. In the late 1820s, three other states followed the Connecti-

cut model, prohibiting the use of dangerous poisons after

quickening.*° Most American states did not see abortion as a

problem demanding legislative attention.

In 1830, Connecticut became the first state to punish

abortion after quickening.*! In the same year, New York, also

animated by a concern for patient safety, considered a law to

prohibit any surgery, unless two physicians approved it as

essential. Before scientific understanding of germ theory and

antisepsis, any surgical intervention was likely to be fatal.

The New York act finally adopted applied only to surgical

abortion and included the first “therapeutic” exception,

approving abortion where two physicians agreed that it was

“necessary.”3? As the Court recognized in Roe v. Wade, until

the twentieth century, abortion, particularly when done

through surgical intervention, remained significantly more

dangerous to the woman than childbirth.23 Because these

early abortion laws were drafted and justified to protect

women, they did not punish women as parties to an abor-

tion.44

29 The Public Statute Laws of the State of Connecticut 152-53 (1821).

See J. Mohr. supra note 2, at 22. See also Quay, Justifiable Abortion -

Medical and Legal Foundations, 49 Geo. L. J. 395 (1960-61).

3° Missouri adopted such a statute in 1825, Illinois in 1827, and New

York in 1828. See J. Mohr, supra note 2, at 25-27.

3! Conn. Stat. Tit. 22, § 14 at 152 (1821), reported by Quay, supra note

29, at 453.

32 See N.Y. Rev. Stat., pt. IV, Ch. I, tit. VI, § 21, at 578 (1828-1835),

reported by Quay, supra note 29, at 499.

33 See Roe v. Wade, 410 U.S. at 148-50; Means, supra note 5, at

353-54, 358-59, 382-96.

34 Roe v. Wade, 410 U.S. at 151-52; M. Grossberg, supra note 10, at

163-64.

None of these early laws, restricting forms of abortion

thought to be particularly unsafe, were enforced.*> That

absence itself speaks powerfully, particularly because abor-

tion was a prevalent practice in this era. Despite legislative

action and medical opposition, the common and openly toler-

ated practice suggests that many Americans did not perceive

abortion as morally wrong.*©

B. A Central Purpose Of Abortion Regulation In

The Nineteenth Century Was To Define Who

Should Be Allowed To Control Medical Practice.

Physicians were the principal nineteenth-century propo-

nents of laws to restrict abortion. A core purpose of the

nineteenth-century laws, and of doctors in supporting them,

was to control medical practice in the interest of public

safety.” This is not to deny that some doctors had moral

objections to abortion, although their arguments tended to be

framed “from the perspective of medical science.”** But the

most significant explanation for the drive by medical doctors

to enact statutes regulating abortion is the fact that these

doctors were undergoing the historical process of profession-

alization — the effort to attain control over a specialized body

of knowledge.

Medicine was not then the organized, highly regulated

profession we know today. It was an occupation in which

35 J. Mohr, supra note 2, at 39, citing A. Wilder, History of Medicine

499-511 (1901).

36 C. Degler, supra note 15, cites physicians who observe that women

who are “otherwise quite intelligent and refined, with a keen sense of their

moral and religious obligations to themselves and to others, deem it nothing

amiss to destroy the embryo during the first few months of its growth.” /d. at

233-34.

37 J. Mohr, supra noite 2, at 43.

38 Siegel, Reasoning from the Body: A Historical Perspective on Abor-

tion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 287

(forthcoming 1992).

conventional and scientifically authoritative modes of prac-

tice (allopathic medicine) still contended for stature and

authority with other modes, such as botanic medicine, homeo-

pathy, herbalists, midwives and abortionists. Allopathic phy-

sicians sought to establish and consolidate professional

sovereignty.*? It was only by mid-century, with the founding

of the American Medical Association, that professional sover-

eignty was tentatively established for “scientific” medicine.*°

The nineteenth century movement to regulate abortions

was one chapter in a campaign by doctors that reflected a

professional conflict between “regulars” (those who ulti-

mately became the practitioners and proponents of scientific

medicine) and “irregulars.”*! As James Mohr explains:

If a regular doctor refused to perform an abortion he

knew the woman could go to one of several types of

irregulars and probably receive one. . . . As more

and more irregulars began to advertise abortion

services openly, especially after 1840, regular phy-

sicians grew more and more nervous about losing

their practices to healers who would provide a ser-

vice that more and more American women after

1840 began to want. Yet, if a regular gave in to the

temptation to perform an occasional discreet abor-

tion, and physicians testified repeatedly that this

frequently happened among the regulars, he would

39 See P. Starr, The Social Transformation of American Medicine

(1982).

40 See id.; W. Rothstein, American Physicians in the Nineteenth Century

(1972). On professionalization, see, for example, G. Geison, ed., Professions

and Professional Ideologies in America (1983).

4! Another illustrative chapter is the “medicalization” of childbirth,

transforming what had been an affair of family, friends, and midwives into a

procedure associated with doctors, hospitals, and sophisticated medical inter-

ventions. See J. Leavitt, Brought to Bed: Child-Bearing in America,

1750-1950 (1986), R. Wertz & D. Wertz, Lying-In: A History of Childbirth in

America (1977); B. Ehrenreich & D. English, For Her Own Good: 150 Years

of the Experts’ Advice to Women (1979), C. Smith-Rosenberg, supra note 3,

at 231.

be compromising his own commitment to an Ameri-

can medical practice that would conform to Hippo-

cratic standards of behavior. The best way out of

these dilemmas was to persuade state legislators to

make abortion a criminal offense. Anti-abortion

laws would weaken the appeal of the competition

and take the pressure off the more marginal mem-

bers of the regulars’ own sect.*

To be sure, some “regulars” were morally troubled by

abortion, and not all “irregulars” performed them. But issues

of medical authority and professional sovereignty explain

why “regular” physicians became interested in abortion pol-

icy from an early date and “repeatedly dragged it into their

prolonged struggle to control the practice of medicine in the

United States.”*?

C. Enforcement Of Sharply Differentiated Concepts

Of The Roles And Choices Of Men And Women

Underlay Regulation Of Abortion And Contrac-

eption In The Nineteenth Century.

The American Medical Association’s campaign in the

nineteenth century to restrict access to abortion succeeded for

many reasons. Concerns over the dangers of surgical abortion

to women were well founded. In addition, physicians per-

suaded political leaders (who were, of course, uniformly

male) that “abortion constituted a threat to social order and to

male authority.”** Since the 1840s, a growing movement for

women’s suffrage and equality had generated popular fears

42 J. Mohr, supra note 2, at 37 (citation omitted, emphasis added).

43 Jd.

44 C. Smith-Rosenberg, supra note 3, at 235.

that women were departing from a purely maternal role* —

fears fueled by the decline in family size during the nine-

teenth century. A central rhetorical focus of the woman’s

movement was framed by a new perception of women as the

rightful possessors of their own bodies.*

In 1871, the American Medical Association’s Committee

on Criminal Abortion described the woman who sought an

abortion:

She becomes unmindful of the course marked out

for her by Providence, she overlooks the duties

imposed on her by the marriage contract. She yields

to the pleasures — but shrinks from the pains and

responsibilities of maternity; and, destitute of all

delicacy and refinements, resigns herself, body and

soul, into the hands of unscrupulous and wicked

men. Let not the husband of such a wife flatter

himself that he possesses her affection. Nor can she

in turn ever merit even the respect of a virtuous

husband. She sinks into old age like a withered tree,

stripped of its foliage; with the stain of blood upon

her soul, she dies without the hand of affection to

smooth her pillow.*’

45 From the 1840s on, the moral fervor of the abolitionist cause drew

Northern women more deeply into public life than ever before in the nation’s

history. Some of the women who were active in the anti-slavery movement

perceived parallels between the subjugation and disenfranchisement of black

people and the oppression of women. See E. Flexner, Century of Struggle ch.

13 (rev. ed. 1975).

46 M. Ryan, Cradle of the Middle Class 155-57 (1983); Dubois, Out-

growing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the

United States Constitution, 1820-1878, 74 J. Am. Hist. 836 (1987).

47 Atlee & O'Donnell, Report of the Committee on Criminal Abortion,

22 Transactions of the American Medical Association 241 (1871), quoted in

C. Smith-Rosenberg, supra note 3, at 236-37. Smith-Rosenberg observes that,

although middle-class husbands were undoubtedly active participants in their

wives’ decisions about abortion, the nineteenth-century AMA “‘linked doctor

and husband as the equally wronged and innocent parties. The aborting wife,

im contrast, was unnaturally selfish and ruthless.” /d. at 236.

The nineteenth-century American Medical Association’s

view of women is strikingly similar to that adopted by Justice

Bradley in 1873, when women were denied the right to

practice law because “divine ordinance,” and “the nature of

things,” prescribed a “family institution [that] is repugnant to

the idea of a woman adopting a distinct and independent

career from that of her husband.’’** This Court has now come

to see this view as part of our “long and unfortunate history of

sex discrimination,” and as constitutionally illegitimate.*?

This vision of woman-as-reproductive-vessel was

expressed in a range of legal restrictrons that enforced a

married woman’s dependence on her husband. Under the

common law, indeed well into this century, a married

woman’s body and reproductive capacity were subjected to

her husband’s control.*° Common law provided the husband a

remedy for interference with his right to sole possession of

his wife’s body and services. The early writ of “ravishment”

listed the wife with the husband’s chattels. Until recent years,

the action for criminal conversation allowed the husband to

maintain an action for trespass, not only when his wife was

raped, but even when the wife had consented to extramarital

sexual relations, “since it was considered that she was not

more capable of giving a consent which would prejudice the

48 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (Bradley, J.,

concurring).

49 Frontiero v. Richardson, 411 U.S. 677, 684 (1973). In United Auto-

mobile Workers v. Johnson Controls, 111 S.Ct. 1196 (1991), this Court struck

down a sex-specific fetal-protection policy, noting that “[cjoncern for a

woman's existing or potential offspring historically has been the excuse for

denying women equal economic opportunities.” /d. at 1210.

5° For the classic statement of the theory of “coverture” followed in the

United States, see 1 W. Blackstone, Commentaries *442. On the legal

disabilities associated with coverture, see M. Abramowitz, Regulating the

Lives of Women 54 (1988); Chused, Married Women's Property Law:

1800-1850, 71 Geo. L. J. 1359, 1366 (1983); E. Pleck, Domestic Tyranny 88

(1987); Note, To Have and To Hold: The Marital Rape Exemption and the

Fourteenth Amendment, 99 Harv. L. Rev. 1255, 1256 (1986).

husband's interests than was his horse."5' At common law a

husband could sue a third party for rendering aid to his wife

without his permission — a privilege that strikingly resembles

the cause of action conferred upon unconsulted husbands

against doctors by the Pennsylvania law at issue in this case.

By the middle of the nineteenth century, such privileges

were widely regarded as corrupt and illegitimate impositions

of domestic slavery — and not just by women’s rights activists.

In 1864, for example, the New York Court of Appeals over-

turned a common law rule allowing a husband to sue for

“enticement” any person who helped his wife to leave him,

Stating: “[A married woman may] invoke and receive aid,

shelter and protection from others, even strangers, against the

oppression and cruelty of her husband,” even if the wife was

acting directly contrary to her husband's wishes. “[A

Stranger] may in such a case treat the wife as a person, an

individual entitled to credit, and invested with the rights and

claims of, and upon, our common humanity.’’52

Against what they saw as an inequitable vision of gender

relations, the women’s movement of the nineteenth century

affirmed that women — even married women — should have

basic rights of self-governance, including the right to decide

whether to bear a child. Early feminists sought to enhance

women’s control of reproduction through a campaign for

“voluntary motherhood,” ideally to be achieved through peri-

odic abstinence from sexual relations.5? They attempted, with

5! W. Prosser, Law of Torts 877 (3d ed. 1971).

52 Barnes v. Allen, 1 Keyes 390, 392 (N.Y. 1864) (neighbor who

provided wagon ride to wife from her husband's house to her father's house

not liable to husband).

53 See L. Gordon, supra note 23, at 93-113. During this period, much

scientific and folk wisdom held a flatly inaccurate view of the cycle of female

fertility, which made periodic abstinence an unreliable form of contraception.

Id. at 99. This inaccurate belief, when viewed in light of hard data on

declining birthrates, see text at notes 17-19 supra, underscore how common

abortion must have been.

limited success, to analogize women's control over reproduc-

tion to the structure of rights that had overturned chattel

slavery. Indeed, it was precisely women’s outrage at their

sexual subordination that led some feminists to oppose abor-

tion — not on moral grounds, but as an object example of

women's victimization at the hands of men.** The recently

adopted Reconstruction Amendments were a central text in

the opposition of women’s rights advocates to the social and

legal covenants binding women to the marital relation.

Opposition to abortion and contraception were closely

linked,5> and can only be understood as a reaction to the

uncertainties generated by changes in family function and

anxieties created by women's challenges to their historic roles

of silence and subservience. These challenges were critical

factors motivating the all-male state legislatures that adopted

restraints on women, including restrictions on abortion.°° In

opposition to the feminist demand for control of reproduction,

the federal government in 1873 took the lead in banning

access to information about both contraception and abortion.

The Comstock law’’ restricted not only medical information

on abortion and contraception, such as a medical text on

54 L. Gordon, supra note 23, at 108; Siegel, supra note 38, at 304-308;

Gordon, “Why Nineteenth Century Feminists Did Not Support ‘Birth Control’

and Twentieth Century Feminists Do,” in Rethinking the Family 40, 43 (B.

Thorne & M. Yalom eds. 1982).

55 “Anthony Comstock had labeled as abortionists everyone who advo-

cated or dealt in family-limitation materials and services.” M. Grossberg,

supra note 10, at 193.

56 C. Smith-Rosenberg, supra note 3, at 218.

57 The act prohibits mailing, transporting or importing “obscene, lewd

or lascivious” items, specifically including all devices and information per-

taining to “preventing conception and producing abortion.” See Comstock

Act, Ch. 258, § 1, 17 Stat. 598 (1873). It was not until 1971 that an

amendment was passed deleting the prohibition as to contraception. Pub. L.

91-662, 84 Stat. 1973 (1971). The ban as to information about abortion

remains. See 18 U.S.C. § 1461 (1988).

physiology written by an eminent Harvard scientist, but also

literary depictions, such as Leo Tolstoy's disapproving tale of

infidelity, The Kreutzer Sonata, and moral literature, includ-

ing a pamphlet urging total sexual chastity.>*

D. Nineteenth-Century Contraception And Abortion

Regulation Also Reflected Ethnocentric Fears

About The Relative Birthrates Of Immigrants

And White Protestants.

Nativism, notably anti-Catholicism, had been part of

American politics and culture as early as the Jacksonian

period. The Civil War and Reconstruction Era dramatically

raised social fears about national identity and citizenship.

Social conservatives in the 1850s articulated an “organicist”

ideal in which social unity should predominate over diversity.

By the 1870s social thought was turning the insights of

Charles Darwin toward racist ends. The political ideology of

“free labor,” forged in the nascent Republican Party in the

years preceding the Civil War,5® was severely challenged by

an influx of foreign labor in the latter part of the nineteenth

century. The discriminatory immigration policies and nativ-

ist fears of the late nineteenth and early twentieth centuries

fanned movements against women’s reproductive freedom.

Beginning in the 1890s, and continuing through the first

decades of the twentieth century, these nativist fears

coalesced into a drive against what was then called “race

58 See M. Grossberg, supra note 10, at 190; United States v. Foote, 25

Fed. Cas. 1140, 1141 (S.D.N.Y. 1876) (rejecting claim that physicians should

have right to distribute information concerning contraceptives), L. Gordon,

supra note 23, at 164-66.

5? E. Foner, Free Soil, Free Labor, Free Men (1970).

6° D. Davis, From Homicide to Slavery 137-54 (1986). See also S.

Lipset & E. Raab, The Politics of Unreason (1970), G. Frederickson, The

Inner Civil War (1965), R. Hofstadter, Social Darwinism in American

Thought (1955), J. Higham, Strangers in the Land (1963).

suicide.”®' The “race suicide” alarmists worried that women

of “good stock” — prosperous, white, and Protestant — were

not having enough children to maintain the political and

social supremacy of their group.®? Anxicty over the falling

birth rates of Protestant whites in comparison with other

groups helped shape policy governing both birth control and

abortion.®? As James Mohr points out, “The doctors both used

and were influenced by blatant nativism . . . There can be

litthe doubt that Protestants’ fears about not keeping up with

the reproductive rates of Catholic immigrants played a greater

role in the drive for anti-abortion laws in nineteenth-century

America than Catholic opposition to abortion did.”

©! See L. Gordon, supra note 23, at 133-55. On November 20, 1912,

390 federal postal inspectors arrested 173 people for using the mails to

disseminate information about abortion and contraception in violation of the

Comstock Act. The campaign was called the “federal war on race suicide.”

“Take Chicagoans in Federal War on Race Suicide,” Chicago Tribune, Nov.

21, 1912, p. 1.

62 See C. Degler, supra note 15, at 229-30, on the concern of physicians

that women of “good stock” were particularly likely to obtain abortions. In

Buffalo in 1855, the fertility ratio of Irish women of ages 20-34 was over

twice that of native white women, id. at 134, raising concerns about dis-

parities in relative population growth. See also Weisbrod, Birth Control and

the Black American: A Matter of Genocide’, \0 Demography 571 (1973).

63 J. Reed, From Private Vice to Public Virtue (1978), D. Kevies, In the

Name of Eugenics (1985), D. Kennedy, Birth Control in America (1971).

spearheaded the American Medical Association's mid-nineteenth century anti-

abortion campaign, frequently referred to racial themes. /d. at 180-90; H.

Storer, Why Not? A Book for Every Woman 85 (1866) (“{S}hall the great

territories of the Far West be filled by our children or by those of aliens?”).

Car! Degler also documents that physicians of the 1850s and | 860s expressed

particular concern that abortion was increasingly sought by marned women of

“high repute.” C. Degler, supra note 15, at 229.

V. ENFORCEMENT OF ABORTION RESTRICTIONS

IN THE FIRST HALF OF THE TWENTIETH CEN-

TURY FOLLOWED ENTRENCHED ETHNIC AND

CLASS DIFFERENTIATIONS, AFFIRMED TRADI-

TIONAL CONCERNS ABOUT ENFORCING GEN-

DER ROLES, AND IMPOSED ENORMOUS COSTS

UPON WOMEN.

The statutory restrictions on abortion remained virtually

unchanged from the early twentieth century until the 1960s.

Physicians were allowed to perform abortions only “to pre-

serve the mother's life.” Nonetheless, the incidence of abor-

tion remained high, ranging from one pregnancy in seven at

the turn of the century, to one in three in 1936. Most-

abortions were performed illegally. Legal restrictions did

not stop abortion, but made it humiliating and dangerous.

The dangers of illegal abortion were exacerbated by law

enforcement abuse. Leslie Reagan's study of the regime of

criminalized abortion in Chicago in the late nineteenth and

early twentieth centuries chronicles the inevitable abuses of

police and prosecutorial power that attended efforts to enforce

restrictive abortion laws. As Reagan notes, “Popular tolerance

of abortion tempered enforcement of the criminal abortion

laws. Prosecutors discovered early the difficulty of winning

convictions in criminal abortion cases. Jurics nullified the law

and regularly acquitted abortionists."©’ Faced with these

®5 See F. Taussig, Abortion, Spontaneous and Induced 338, and Appen

dix A, 453-75 (1936). See also Stix, A Study of Pregnancy Wastage, \%

Milbank Memorial Fund Q. 347 (1935), Stix & Wich!, Abortion and Public

Health, 7% Am. J. Pub. Health 622, Table I (1938).

6 See K. Luker, Abortion and the Politics of Motherhood 38-54 (1984)

67? Reagan, “About to Meet Her Maker” Women, Doctors, Dying

Declarations, and the State's Investigation of Abortion, Chicago, 1867-1940,

77 J. Am. Hist 1240, 1247 (1991). See generally L. Reagan, When Abortion

Was a Crime, Ph.D. dissertation, University of Wisconsin-Madison, 199).

obstacles, prosecutors routinely resoried to enforcement tac-

tics that were at best questionable and at worst grotesque:

They extracted “dying declarations” in hospitals from women

dying from poorly administered abortions in order to secure

evidence needed to prosecute abortionists.

This practice not only subjected dying women to crucl

and humiliating interrogations; it also drew rcluctant doctors

into the web of criminal investigation and encouraged doctors

to violate patient confidences in exchange for their own

exculpation. A doctor who tried to save the life of a woman

dying from an abortion could himself be subjected to harass-

ment or even criminal prosecution as an accessory. But if he

managed to secure a “dying declaration” from the woman that

named the abortionist, the doctor might hope to perform his

medical duties without fear of prosecution. Some doctors, of

course, rebelled against a regime that required them to harass

sick and dying women. “The business of the doctor is to

relieve pain, cure disease and save life, not to act as a

bloodhound [for] the state,” one Illinois doctor protested in

1933. But such practices seemed inevitable if the laws

against abortion were to be enforced in a climate of tolerance

for routine violation of those laws.

When advances in medical science in the 1930s and

1940s reduced the number of deaths duc to improperly admin-

istered abortions, Chicago authorities shifted their enforce-

ment strategy from securing “dying declarations” to more

direct but equally coercive means of securing convictions.

The 1947 investigation and prosecution of Chicago midwife

Helen Stanko, for instance, was replete with instances of

forced gynecological examinations and humiliating interroga-

tions of Stanko’s patients.” The aggressive efforts of Chicago

police in the 1940s to enforce crimina! statutes that reached

©® L. Reagan, When Abortion Was A Crime, supra note 67, at 180-8).

©? Id at 277-83. See People v. Stanko, 402 WI). 558% (1949); People v

Stanko, 407 Ill. 624 (1951).

into the heart of women’s intimate lives and medical relation-

ships led inexorably to law enforcement practices that in

retrospect seem medieval.

In the first half of the twentieth century, a two-tiered

abortion system emerged in which quality of medical care

depended on the class, race, age and residence of the woman.

Poor and rural women obtained illegal abortions performed by

people (including some physicians) willing to defy the law

out of sympathy for the woman or for the fee. More privileged

women pressed private physicians for legal abortions and

many obtained them. Some doctors could be persuaded that a

delivery would endanger a woman's health. The dilation and

curettage procedure effective for abortion was indicated for

numerous other gynecological health problems, allowing the

word “abortion” to remain unspoken between patient and

doctor — even as the procedure went forward.”°

Shifts in the definition of “therapeutic” abortion

responded to larger social forces.”' Early in the century, “race

suicide” fears fueled efforts to suppress both abortion and

birth control. During the Depression, abortions increased as

the medical profession recognized impoverishment as an indi-

cation for therapeutic abortion.’? In the 1940s and 1950s the

definition of therapeutic abortion expanded to include psychi-

atric indications.’? Physicians were caught in a double bind:

abortion was criminal, but the reasons women sought the

7° See generally K. Luker, supra note 66.

7! L. Reagan, When Abortion Was a Crime, supra note 67, at 284-312.

72 In 1931 an American Medical Association editorial noted that “pov-

erty .. . does not constitute an indication for abortion, [but] there is no doubt

that in the United States many abortions are performed for borderline cases in

which there is a strong ethica! indication plus a more or less minor medical

ailment.” Abortion or Removal of Pregnant Uterus, 95 J. Am. Med. Ass'n

1169 (1931).

73 K. Luker, supra note 66, at 45-47, 54-57.

procedure were so multiple and compelling that doctors found

requests for abortion difficult to resist.’*

In the 1950s, more restrictive attitudes toward both legal

and illegal abortions’> were part of a conservative response to

growing female labor-force participation and independence. ’°

The movement to legalize abortion in the 1960s arose in

response to this rather brief wave of anti-abortion enforce-

ment. Physicians, particularly those who worked in public

hospitals and clinics, saw women who needlessly suffered and

died as a consequence of illegal abortions.’’ Others were

disturbed that most of those women were poor and Black.

Many were distressed by the class bias inherent in the psychi-

atric indications for therapeutic abortions.’* In the late 1960s,

concerned physicians were joined by women who had come to

understand that control of reproductive capacity is at the heart

of women’s self-governance and moral personhood.’?

As a number of states acted to legalize abortion in the

late 1960s and early 1970s, there was pressure for recognition

of constitutional protection for the basic right of abortion

choice. Class and regional differentiations were accentuated

as it became possible for women with resources to travel to

74 For example, Luker, id., discusses the early 1960s scare over the

fertility drug Thalidomide, which caused crippling feta) deformities. The

scare underlined the inadequacy of a narrow definition of therapeutic indica-

tions for abortion: American women carrying severely deformed fetuses were

forced either to carry to term or to travel overseas to find abortion access. /d.

at 62-65 (case of Sherri Finkbine).

75 L. Lader, Abortion 42-51 (1966).

7© M. Ryan, ed., Womanhood in America 198-215 (1975), R. Baxandall,

L. Gordon & S. Reverby, eds., America’s Working Women 299-308 (1976).

77 See, e.g., Dudziak, Just Say No: Birth Control in the Connecticut

Supreme Court Before Griswold v. Connecticut, 75 la. L. Rev. 915, 924-927

(1990) (impetus for Connecticut doctors’ campaign in 1940s-1960s to legalize

birth control in the state was threat to life and health of married women from

medically-dangerous pregnancies).

78 See McRae v. Califano, 491 F. Supp. 630, 668-76 (E.D.N.Y. 1980).

79 K. Luker, supra note 66, at 92-125.

states where abortion had been made Iegal. In its 1973 deci-

sion in Roe v. Wade, this Court responded to these forces in

holding that constitutional rights of liberty and privacy pro-

tect the right of the woman and her physician to choose

abortion.

Vi. EMPHASIS ON THE FETUS BECAME CENTRAL

TO CULTURAL AND LEGAL DEBATE OVER

ABORTION ONLY IN THE LATE TWENTIETH

CENTURY, WHEN TRADITIONAL JUSTIFICA-

TIONS FOR RESTRICTING ACCESS TO ABOR-

TION BECAME CULTURALLY ANACHRONISTIC

OR CONSTITUTIONALLY IMPERMISSIBLE.

Some of those seeking to enlist the power of the state to

deny women’s liberty to choose abortion have long articulated

a concern for the fetus.®° Yet until the late twentieth century,

this concern was always Subsidiary to more mundane social

visions and anxieties. The mid-nineteenth century physicians’

campaign against abortion was directed at botanic medicine

and homeopathy, as well as at abortion. Similarly, those who

opposed abortion and birth control as a means of preventing

“race suicide” sought to protect the privilege of elite white

Protestants, not to protect the racially mixed universe of

fetuses.

It is significant that there was virtually no religious

support for the nineteenth-century physicians’ campaign to

bar abortion.*! Physicians tried hard to enlist moral authority

8° See J. Mohr, supra note 2, at 165-66.

*! The extensive religious press of the United States, both Catholic and

Protestant, “maintained a total blackout on the issue of abortion from the

beginning of the nineteenth century through the end of the Civil War.” /d. at

183. It was not until 1869 that a papal declaration condemned abortion as a

violation of the fetus prior to “ensoulment,” held to be 40 days gestational age

for a male fetus and 80 days for a female. Before that time, Catholic theology

condemned early abortion on precisely the same terms as ii had condemned

masturbation and contraception, i.e. a distrust of sexuality and of interference

(Continued on following page)

and organized religion in their campaign to restrict abortion,

and “were openly disgusted when the established voices of

moral authority refused to speak on their behalf. . . . Medical

journals accused the religious journals of valuing abortifa-

cient advertising revenue too highly to risk criticizing the

practice.’’82

Further, the limited support offered physicians from Prot-

estant religious leaders appeared to reflect “worr[y] about

falling birth-rates among their adherents [more] than . . . the

morality of abortion itself.”*? Compared to extensive reli-

gious involvement in other nineteenth-century movements for

changing social morality, such as temperance, the conspic-

uous absence of religious support for the physicians’ anti-

abortion crusade is particularly striking.*4

Nineteenth-century laws restricting access to abortion did

not define the fetus as a human being, nor did courts treat

fetuses as legal rights-bearers. To the contrary, New Jersey

Chief Justice Green expressed the prevailing judicial opinion

in 1849 when he asserted that although it was “true, for

certain purposes, [that] the law regards an infant as in being

from the time of conception, yet it seems nowhere to regard it

as in life, or to have respect to its preservation as a living

being.”*> Michael Grossberg summarizes the nineteenth-cen-

tury cases, saying, “[A] fetus enjoyed rights only in property

(Continued from previous page)

with natural processes. In Catholic doctrine late abortions were always held to

be a form of homicide. No American diocesan newspaper reported the Pope's

1869 statement. /d. at 187. In that same year, the Bishop of Baltimore issued

the only formal nineteenth-century Catholic condemnation of abortion in

America, id. at 186, and the Old School Presbyterians became the only major

Protestant denomination to condemn abortion. /d. at 192. No other religious

denominations or leaders followed.

82 Jd at 184.

83 Jd. at 195.

84 Jd. at 182-96; R. Petchesky, supra note 17, at 80.

85 Cooper v. State, 22 N.J.L. (2 Zab.) 52, 56-57 (1849) (emphasis in the

original), discussed in M. Grossberg, supra note 10, at 165.

law and then only if successfully born. It had no standing in

criminal law until quickening, and none at all in tort. The law

highly prized children, not fetuses.”*© An important illustra-

tion lies in Judith Walzer Leavitt's analysis of turn-of-the-

century medical decisions about the procedure of craniotomy

(a surgical mutilation of the live fetal head to permit vaginal

extraction). Leavitt's research shows that the majority of

physicians, confronted with a woman whose pelvis was too

small to permit delivery, thought craniotomy (which killed the

fully-formed fetus) more appropriate than a Caesarean section

(with its high risk to the woman) — a revealing comment on

the prevailing hierarchy of values.*®’

As this Court observed in Roe v. Wade, the pattern of

American abortion laws does not support the view that such

laws incorporate a view of the fetus as a person. Both the

lesser punishment for abortion than for homicide, and the

various exceptions allowing the physician to determine when

and if abortion is justified, rebut the assumption that laws

against abortion reflect simply a belief in fetal personhood.

VII. A PRESUMED INTEREST IN PROTECTING

FETAL LIFE DOES NOT JUSTIFY DENYING

WOMEN THEIR HISTORIC LIBERTY TO

CHOOSE ABORTION.

~#-eulture can, of course, allow growing humanistic

impulses to attach greater moral value to fetuses or to poten-

tial human life. But this Court should reject state efforts to

invoke the protection of fetal life to justify restrictions upon

women’s access to abortion.

As this brief has demonstrated, the complex historic

grounds originally asserted for restricting access to abortion

are now either socially irrelevant or recognized as constitu-

tionally illegitimate. Both culturally and legally, it is today

86 M. Grossberg, supra note 10, at 165.

87 See Leavitt, The Growth of Medical Authority: Technology and

Morals in Turn-of-the-Century Obstetrics, 1 Med. Anthropology Q. 230,

233-35 (1987):

impossible to defend abortion restrictions as a means of

enforcing an absolutist religious belief that intimate relations

must always remain open to the possibility of procreation.**

Similarly, abortion restrictions cannot be justified by the

desire to keep women in traditional roles.*° Likewise, our

social consensus, embodied in principles of legal equality,

would not permit the Court to defend restrictions on abortion

as a means of encouraging the propagation of white Protestant

stock or of diminishing the population ¢* racial or religious

minorities. History should make us skcptical, however, of the

notion that basic conflicts underlying these earlier social

purposes have disappeared as motive forces for the regulation

of abortion, to be entirely displaced by moral concern for the

protection of unborn life. Sufficient refutation of this notion

lies in the “spousal notification” provision of the Pennsylva-

nia law at issue in this case.% In historical terms, the spousal

notification requirement rests upon and reanimates the tradi-

tional notion that married women's bodies, lives and will are

submerged in their husband's.?' That “long and unfortunate

history” of the subordination of women has now been firmly —

and properly — rejected by this Court.%

The extensive factual record developed at trial amply

demonstrates that the restrictions of the Pennsylvania law

88 See Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 U.S.

438 (1972).

89 Gender-based classifications must be “free of fixed notions concern-

ing the roles and abilities of males and females.” Mississippi University for

Women v. Hogan, 458 U.S. 718, 724-25 (1982). Accord Orr v. Orr, 440 U.S.

268 (1979); Stanton v. Stanton, 42¥ U.S. 7 (1975).

9° The Circuit Court of Appeals, while concluding that this Court's

decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989),

compelled it to approve most of the restrictions of the Pennsylvania law, held

that the spousal notification requirement constitutes an undue burden on

women's ability to choose abortion, not narrowly tailored to serve a compel-

ling state interest. Planned Parenthood v. Casey, 947 F.2d 683, 711-715

(3d.Cir. 1991).

9! Supra note 50.

-92 Supra note 49.

impose heavy burdens and costs on women’s ability to choose

whether to bear a child, and that these burdens fall most

heavily on the most vulnerable women. Planned Parenthood

of Southeastern Pennsylvania v. Casey, 744 F.Supp. 1323,

1329-72 (E.D.Pa. 1990). Similarly, history vividly establishes

that the single most obvious and inevitable result of such

onerous restrictions is their devastating consequences for the

health and autonomy of women.

CONCLUSION

The judgment of the Court of Appeals regarding the

spousal notification requirement should be affirmed and the

judgment regarding the other provisions of the Pennsylvania

act should be reversed. The Court should reaffirm that the

Constitution prohibits the state from unduly burdening

women’s powerful liberty and equality interests in controlling

their own bodies and lives.

Respectfully submitted,

Jane E. Larson Syivia A. Law*

Northwestern University New York University

School of Law School of Law

357 East Chicago Ave. 40 Washington Sq. So.

Chicago, IL 60611 New York, NY 10012

(312) 503-0321 (212) 998-6265

Ciype SPrLLENGER

University of Wisconsin

Law School

975 Bascom Mall

Madison, WI 53706

(608) 263-2545

* Counsel of Record

APPENDIX

App. 1

APPENDIX

LIST OF AMICI

(Institutional Affiliation Listed for

Identification Purposes Only)

Elaine S. Abelson, Assistant Professor, The New Schoo! for

Social Research, Eugene Lang College

Garland E. Allen, Professor of Biology, Washington Univer-

sity. Author, “Old Wine in New Bottles: From Eugenics

to Population Control in the Work of Raymond Pearl,” in

The Expansion of American Biology (1991)

Kenneth L. Ames, Chief, History Survey, New York State

Museum

Bonnie S. Anderson, Professor of History, Brooklyn College

and the Graduate Center, City University of New York

Rima D. Apple, Professor of Consumer Science, University of

Wisconsin. Editor, Women, Health and Medicine in

America: A Historical Handbook (1990)

Joyce Appleby, Professor of History, University of California

at Los Angeles. President, Organization of American

Historians

David Arkusch, Professor of History, University of lowa

Stephen Aron, Assistant Professor of History, Princeton Uni-

versity

Barbara J. Ballict, Assistant Professor of Women’s Studies.

Rutgers University

Renato Barahona, Associate Professor of History, University

of Illinois at Chicago

Marjorie A. Beale, Assistant Professor of History, University

of California at Irvine

Rudolph M. Bell, Professor of History, Rutgers University

App. 2

Thomas Bender, Professor of History, New York University.

Author, “The Erosion of Public Culture: Cities, Dis-

courses, and Professional Disciplines,” in The Authority

_ Of Experts: Studies in History and Theory (1984)

Judith M. Bennett, Associate Professor of History, University

of North Carolina at Chapel Hill

Carol Berkin, Professor of History, Baruch College and the

Graduate Center, City University of New York. Co-Edi-

tor, Women of America: A History (1980)

Constance Berman, Associate Professor of History, Univer-

sity of lowa

Frederick M. Binder, Professor of History, The College of

Staten Island, City University of New York

Robert G. Bone, Professor of Law, Boston University

Allan M. Brandt, Associate Professor of Social Medicine and

History, University of North Carolina at Chapel Hill.

Author, No Magic Bullet: A Social History of Venereal

Disease in the United States Since 1880 (rev. ed. 1987)

Barbara Brenzel, Professor of History, Wellesley College

Marvin A. Breslow, Professor of History, University of Mary-

land

Renate Bridenthal, Professor of History, Brooklyn College

Kathicen M. Brown, Assistant Professor of History. Princeton

University

Mari Jo Buhle, Associate Professor of American Civilization.

Brown University

Vern L. Bullough, Distinguished Professor, State University

of New York at Buffalo. Garrison Lecturer in History of

Medicine

Jon Butler, William Robertson Coe Professor of American

History, Yale University

App. 3

Caroline Bynum, Professor of History, Columbia University

Susan E. Cayleff, Associate Professor of Women’s Studies,

San Diego State University

Herrick Chapman, Assistant Professor of History, Carnegie

Mellon University

Ellen Chesler, New York, N.Y. Author, Women of Vision:

Margaret Sanger and the Birth Control Movement in

America (forthcoming 1992)

Carol Chomsky, Associate Professor of Law, University of

Minnesota

Eric Howard Christianson, Associate Professor of History,

University of Kentucky at Lexington

Paul G. E. Clemens, Professor of History, Rutgers University

John Henry Coatsworth, Professor and Chairperson, Depart-

ment of History, University of Chicago

Sherman Cochran, Professor and Chair, Department of His-

tory, Cornell University

Lizabeth Cohen Assistant Professor of History, Carnegie

Mellon University

Paul A. Cohen, Professor of History, Wellesley College

Susan Guettel Cole, Associate Professor of History, Umiwer-

sity of Illinois at Chicago

James V. Compton, Professor of History, San Francisco State

University

Harold J. Cook, Associate Professor of History of Medicine.

University of Wiisconsin-Madison. Joint Series Editor.

Wellcome Scries in Medical History

Patricia A. Cooper, Professor of History, Drexel University

Sandi E. Cooper, Professwr of History, City University of

New York

App. 4

Nancy F. Cott, Woodward Professor of American Studies and

History, Yale University. Author, The Bonds of Woman-

hood: “Women's Sphere” in New England, 1780-1835

(1977); Co-Editor, A Heritage of Her Own: Toward a

New Social History of American Women (1979)

Eugene L. Cox, Professor of History, Wellesley College

Steve Curry, Assistant Dean and Professor of Humanities,

School of General Studies, New York University

Jere R. Danicll, Professor of History, Dartmouth College

Paul David, William Robertson Coe Professor of American

Economic History, Stanford University. Past President,

Economic History Association

David Firion Davis, Sterling Professor of History, Yale Uni-

versity. Past President, Organization of American Histo-

rials

Marc H. Dawson, Associate Professor of History and Chair,

Department of History and Government, Western New

England College

Philip Dawson, Professor of History, Brooklyn College and

the Graduate Center, City University of New York

Cornelia Hughes Dayton, Assistant Professor of History, Uni-

versity of California at Irvine. Author, Taking the Trade:

Abortion and Gender Relations in an Eighteenth-Century

New England Village, 48 William and Mary Quarterly \9

(1991)

Warren Dean, Professor of History, New York University

Hannah S. Decker, Professor of History, University of

Houston

Jane 5. De Hart, Professor of History, University of Califor-

nia at Santa Barbara. Co-Editor, Women's America:

Reforming the Past (3d ed. 1991)

App. 5

Marion Deshmukh, Professor of History, George Mason Uni-

versity

lleen A. DeVault, Assistant Professor, Cornell University

School Of Industrial and Labor Relations

Jane B. Donegan, Professor of History, Onandaga Community

College. Author, Women and Men Midwives: Medicine,

Morality and Mysogyny in Early America (1987)

Ellen Carol DuBois, Professor of Histony, University of Cali-

fornia at Los Angeles. Co-Editow, Uneqwal Sisters: A

Multicultural Reader in U.S. Women's History (1990)

Arthur P. Dudden, Fairbank Professor in the Humanities and

Professor of History, Bryn Mawr College. Past Executive

Secretary, American Studies Association

Mary L. Dudziak, Professor of Law, University of lowa.

Author, Just Say No: Birth Control in whe Connecticut

Supreme Court Before Griswold v. Connecticut, 75 lowa

Law Review 915 (1990)

Ellen Dwyer, Associate Professor of History, Indiana Unvver-

sity

Arthur M. Eckstein, Associate Professor of History, Umiver-

sity of Maryland

Sarah Elbert, Professor of History, State University of New

York at Binghamton

Sara M. Evans, Professor of History, University of Minnesota.

Author, Born for Liberty: A History of Women in Amer-

ica (1989)

Mary L. Felstiner, Professor of History, San Francisco State

University

Sidney Fine, Professor of History, University of Michigan

Sarah Fishman, Assistant Professor and Assistant Chair,

Department of History, University of Houston

App. 6

Joyce Follet, University of Wisconsin-Madison

William E. Forbath, Professor of Law, University of Califor-

nia, Los Angeles

Miriam Formanek-Brunell, Assistant Professor of History,

Wellesley College

Elizabeth Fox-Genovese, Eleonore Raoul Professor of the

Humanities, Emory University

Thomas R. Frazier, Professor and Chair, Department of His-

tory, Baruch College, City University of New York

Estelle B. Freedman, Professor of History, Stanford Univer-

sity. Co-Author, /ntimate Matters: A History of Sexuality

in America (1988)

Joshua B. Freeman, Associate Professor of History, Columbia

University

Richard M. Fried, Professor of History, University of Illinois

at Chicago

Lawrence M. Friedman, Marion Rice Kirkwood Professor of

Law, Stanford University. Past President, American

Society for Legal History. Author, A History of American

Law (2d ed. 1985)

Ziva Galili, Associate Professor of History, Rutgers Univer-

Sity

Vanessa Northington Gamble, Assistant Professor of History

of Medicine, University of Wisconsin-Madison

Peter Gay, Sterling Professor of History, Yale University

Donald F.M. Gerardi, Associate Professor of History,

Brooklyn College

Pamela Gerardi, Associate Editor, Guide to Historical Litera-

ture, Department of History, University of Maryland

Faye Getz, Honorary Fellow, Department of History of Medi-

cine, University of Wisconsin-Madison

James Gilbert, Professor of History, University of Maryland

App. 7

Janet Golden, Visiting Scholar, Department of the History and

Sociology of Science, University of Pennsylvania. Series

Co-Editor, Women and Health (Ohio State University

Press)

Wendy Z. Goldman, Assistant Professor of History, Carnegie

Mellon University

Jonathan Goldsicin, Professor of History, University of lowa

Linda Gordon, Florence Kelley Professor of History, Univer-

sty of Wisconsin-Madison. Author, Woman's Body,

Woman's Right: Birth Control in America (rev. ed. 1990)

Sarah Barringer Gordon, Golieb Fellow in Legal History, New

York University Law School

Victoria de Grazia, Professor of History, Rutgers University

Monica H. Green, Assistant Professor of History, Duke Uni-

versity

Cheryl Greenberg, Assistant Professor of History, Trinity Col-

lege

Robert Griffith, Professor of History and Dean of the College

of Arts and Humanities, University of Maryland at Col-

lege Park

Gerald N. Grob, Henry E. Sigerist Professor of the History of

Medicine, Rutgers University

Carol Groneman, Professor, John Jay College of Criminal

Justice, City University of New York

Michael Grossberg, Associate Professor of History and Law.

Case Western Reserve University. Author, Governing the

Hearth: Law and the Family in Nineteenth Century

America (1985)

Atina Grossman, Assistant Professor of History, Columbia

University

App. 8

Gay L. Gullickson, Associate Professor of History, University

of Maryland

Jacquelyn Hall, Julia Cherry Spruill Professor of History,

University of North Carolina at Chapel Hill. Director,

Duke-UNC Center for Research on Women

Marilyn Halter, Assistant Professor of History, Boston Uni-

versity

Yukiko Hanawa, Department of History and Women’s Studies,

Wellesley College

Sarah Hanley, Professor of History, University of lowa

Louis R. Harlan, Distinguished Professor of History, Univer-

sity of Maryland at College Park. Past President, Ameri-

can Historical Association, Organization of American

Historians, and Southern Historical Association

Harry Haroutunian, Max Palevsky Professor of History and

Civilization, University of Chicago

Barbara J. Harris, Professor of History, University of North

Carolina at Chapel Hill. Co-Editor, Women and the

Structure of Society (1984)

John M. Headley, Distinguished University Professor of His-

tory, University of North Carolina at Chapel Hill

Dorothy O. Helly, Professor of History, Hunter College, City

University of New York. Co-Editor, Gendered Domains:

Rethinking Public and Private in Women's History

(forthcoming 1992)

Lamar M. Hill, Professor of History, University of California

at Irvine

Darlene C. Hine, Professor, Michigan State University

Joan Hoff, Professor of History, Indiana University at Bloom-

ington. Author, Law, Gender, and Injustice (1991)

App. 9

David A. Hollinger, Professor of History, University of Mich-

igan

Joel D. Howell, Associate Professor, Departments of Internal

Medicine, History, and Health Sciences Management and

Policy, University of Michigan

Karl Hufbauer, Professor of History, University of California

at Irvine

Isabel V. Hull, Associate Professor of History, Cornell Uni-

versity

Tera Hunter, Assistant Professor of History, University of

North Carolina at Chapel Hill

George Huppert, Professor of History, University of Illinois at

Chicago

Paula E. Hyman, Professor of History, Yale University

Karl Ittmann, Professor of History, University of Houston

Penelope D. Johnson, Professor of History, New York Univer-

Sity

Peter d’A. Jones, Professor of History, University of Illinois

at Chicago

David P. Jordan, Professor of History, University of Illinois at

Chicago

Carol F. Karlsen, Associate Professor of History, University

of Michigan

Stanley N. Katz, President, American Council of Learned

Societies and Visiting Member, Institute for Advanced

Study. Past President, American Society for Legal His-

tory and Organization of American Historians

Mary Kelley, John Sloan Dickey Professor of the Social

Sciences, Dartmouth College

Linda K. Kerber, May Brodbeck Professor in the Liberal Arts

and Professor of History, University of lowa. Past Presi-

dent, American Studies Association. Author, Women of

App. 10

the Republic (1986); Editor, Women's America: Refocus-

ing the Past (3d ed. 1991)

Alice Kessler-Harris, Professor of History and Director of

Women’s Studies, Rutgers University

Rachel N. Klein, Associate Professor of History, University

of California at San Diego

Christine Kleinegger, Senior Historian, New York State

Museum

Claudia Koonz, Associate Professor of History, Duke Univer-

Silty

Judith Walzer Leavitt, Professor and Chair, Department of

History of Medicine, University of Wisconsin-Madison.

Author, Brought to Bed: Childbearing in America,

1750-1950 (1986)

Helen Rodnite Lemay, Associate Professor of History, State

University of New York at Stony Brook

Darline Gay Levy, Associate Professor of History, New York

University

Richard S. Levy, Associate Professor of History, University

of Illinois at Chicago

Arthur S. Link, George Henry Davis Professor of American

History Emeritus, Princeton University

Leon F. Litwack, A.F. and May T. Morrison Professor of

History, University of California at Berkeley. Past Presi-

dent, Organization of American Historians

Lawrence D. Longo, Professor of Perinatal Biology, School of

Medicine, Loma Linda University

Kristin Luker, Professor of Sociology and Professor of Law

(Boalt Hall), University of California at Berkeley.

Author, Abortion and the Politics of Motherhood (1984)

App. 11

Elizabeth Lunbeck, Assistant Professor of History, Princeton

University

Michael A. Lutzker, Associate Professor of History, New

York University

Phyllis Mack, Associate Professor of History, Rutgers Univer-

Sily

Frances Malino, Professor of History, Wellesley College

Lynn Mally, Associate Professor of History, University of

California at Irvine

Elaine Tyler May, Professor of American Studies, University

of Minnesota. Author, Great Expectations: Marriage and

Divorce in Post-Victorian America (1980)

Sean D. M. McConville, Professor of Criminal Justice, Uni-

versity of Illinois at Chicago

Stephanie McCurry, Assistant Professor of History, Univer-

sity of California at San Diego

Deborah Kuhn McGregor, Assistant Professor, Sangamon

State University. Author, Sexual Surgery and the Origins

of Gynecology: J. Marion Sims, His Hospital and His

Patients (1989)

Sally G. McMillen, Associate Professor of History, Davidson

College. Author, Motherhood in the Old South: Preg-

nancy, Childbirth and Infant Rearing (1990)

Barbara Melosh, Associate Professor of English and History,

George Mason University. Author, The Physician's

Hand: Work Culture and Conflict in American Nursing

(1982)

Michael Meranze, Assistant Professor of History, University

of California at San Diego

Walter P. Metzger, Professor of History, Columbia University

App. 12

Joanne Meyerowitz, Associate Professor of History, Univer-

sity of Cincinnati

Marion Miller, Associate Professor of History, University of

Illinois at Chicago

John Modell, Professor of History, Carnegie Mellon Univer-

Silty

Robert Moeller, Associate Professor of History, University of

California at Irvine

David Montgomery, Farnam Professor of History, Yale Uni-

versity

Regina Morantz-Sanchez, Professor, University of California

at Los Angeles. Author, Sympathy and Science: Women

Physicians in American Medicine (1985)

William Scott Morton, Professor of History, Hunter College,

City University of New York

Claire G. Moses, Associate Professor of History, University

of Maryland. Past President, Conference Group on

Women’s History

Robyn Muncy, Professor of History, University of Maryland.

Author, Creating a Female Dominion in American

Reform, 1890-1935 (1991)

Tetsuo Najita, Professor of History, University of Chicago

Guity Nashat, Associate Professor of History, University of

Illinois at Chicago

Bruce Nelson, Associate Professor of History, Dartmouth

College

David W. Noble, Professor of History, University of Minne-

sota

Mary Nolan, Associate Professor of History, New York Uni-

versity

App. 13

Philip Nord, Associate Professor of History, Princeton Uni-

versity

Mary Beth Norton, M.D. Alger Professor of History, Cornell

University. Author, Liberty’s Daughters: The Revolution-

ary Experience of American Women, 1750-1800 (1980)

Mary E. Odem, Assistant Professor of History, Emory Univer-

sity. Author, Delinquent Daughters: The Sexual Regula-

tion of Female Minors in the United States, 1880-1920,

Ph.D. dissertation, University of California, Berkeley,

1989

Annelise Orleck, Assistant Professor of History, Dartmouth

College

Michael E. Parrish, Professor of History, University of Cali-

fornia at San Diego

K. David Patterson, Professor of History and Interim Dean of

the Graduate School, University of North Carolina at

Charlotte

Kathy Peiss, Professor of History and Women’s Studies, Uni-

versity of Massachusetts at Amherst. Co-Editor, Passion

and Power: Sexuality in History (1989)

Martin S. Pernick, Associate Professor of History, University

of Michigan. Author, A Calculus of Suffering: Pain,

Professionalism, and Anesthesia in Nineteenth-Century

America (1985)

Edward Pessen, Distinguished Professor of History, City Uni-

versity of New York. Past President, Socicty of Histo-

rians of the Early American Republic

Rosalind Petchesky, Professor of Political Science, Hunter

College, City University of New York. Author, Abortion

and Women’s Choice (rev. ed. 1990)

Charles A. Peterson, Professor of History, Cornell University

App. 14

Marilyn H. Pettit, Instructor, Department of History, New

York University

Walter M. Pintner, Professor of History, Cornell University

Richard Polenberg, Goldwin Smith Professor of American

History, Cornell University

Carl E. Prince, Professor of History, New York University.

Past President, Society of Historians of the Early Ameri-

can Republic

Linda C. A. Przybyszewski, Assistant Professor of History,

University of Cincinnati

David L. Ransel, Professor of History, Indiana University at

Bloomington. Editor, American Historical Review

Leslie Reagan, Assistant Professor of History of Medicine,

University of Illinois. Author, When Abortion Was a

Crime: The Legal and Medical Regulation of Abortion,

Chicago, 1880-1973, Ph.D. dissertation, University of

Wisconsin-Madison, 1991; “About to Meet Her Maker’:

Women, Doctors, Dying Declarations and the State s

Investigation of Abortion, Chicago, 1867-1940, 77 J.

Am. Hist. 1240 (1991)

James Reed, Associate Professor of History, Rutgers Univer-

sity. Author, From Private Vice to Public Virtue: The

Birth Control Movement and American Society Since

1830 (1978)

David M. Reimers, Professor of History, New York University

Susan M. Reverby, Whitehead Associate Professor in Critical

Thought, Wellesley College. Author, Ordered to Care:

The Dilemma of American Nursing, 1850-1945 (1987):

Co-Editor, Gendered Domains: Rethinking Public and

Private in Women's History (forthcoming 1992)

Rebecca Rodgers, Professor of History, University of lowa

Malcolm Rohrbough, Professor of History, University of lowa

App. 15

Mary Roldan, Professor of History, Cornell University

Ruth Rosen, Professor of History, University of California at

Davis

Emily S. Rosenberg, Professor of History, Macalester College

Norman L. Rosenberg, Professor of History, Macalester Col-

lege

David Rosner, Professor of History of Medicine, Baruch Col-

lege and the Graduate School, City University of New

York

Dorothy Ross, Arthur O. Lovejoy Professor of History, Johns

Hopkins University

Ellen Ross, Associate Professor of History, Ramapo College

of New Jersey

Guenther Roth, Professor of History, Columbia University

Leslie S. Rowland, Assistant Professor of History, University

of Maryland

Teofilo Ruiz, Professor of History, Brooklyn College

Mary Ryan, Professor of History, University of California at

Berkeley. Editor, Womanhood in America: From Colo-

nial Times to the Present (2d ed. 1979)

Kenneth Sacks, Professor and Chair, Department of History,

University of Wisconsin-Madison

Todd L. Savitt, Professor of Medical Humanities, East Caro-

lina University School of Medicine

Leo Schelbert, Professor of History, University of Illinois at

Chicago

Arthur Schlesinger, Jr., Professor in the Humanities, Graduate

School, City University of New York

Leslie Schwalm, Assistant Professor of History, University of

lowa

App. 16

Anne Firor Scott, W. K. Boyd Professor Emerita of History,

Duke University. Past President, Organization of Ameri-

can Historians

Joan W. Scott, Professor of Social Science, Institute for

Advanced Study. Co-Author, Women, Work, and Family

(1987)

Jerrold Seigel, Professor of History, New York University

Brenda K. Shelton, Associate Professor, State University of

New York at Buffalo

Barbara Sicherman, Professor of History, Trinity College

Sara Lee Silberman, Associate Professor of History, Connect-

icut College

Miriam Silverberg, Associate Professor of History, University

of California at Los Angeles

David C. Sloane, Visiting Assistant Professor of History,

Dartmouth College

Daniel Scott Smith, Professor of History, University of Illi-

nois at Chicago. Author, Early Fertility Decline in Amer-

ica: A Problem in Family History, Journal of Family

History (1987)

Barbara G. Sniffen, Associate Professor of History, Univer-

Sity of Wisconsin-Oshkosh

Rayman L. Solomon, Associate Dean, Northwestern Univer-

sity School of Law. Former Board Member, American

Society for Legal History

Leo Spitzer, Professor and Chair, Department of History,

Dartmouth College

Amy Dru Stanley, Assistant Professor of History, University

of California at Irvine

Christine Stansell, Associate Professor of History, Princeton

University

App. 17

Stephen J. Stearns, Associate Professor of History, College of

Staten Island, City University of New York

Allan Steinberg, Assistant Professor of History, University of

lowa

Nancy Leys Stepan, Professor of History, Columbia Univer-

Sity

David L. Sterling, Associate Professor of History, University

of Cincinnati

Deborah A. Stone, David R. Pokross Professor of Law and

Social Policy, Brandeis University

Lawrence Stone, Professor Emeritus of History, Princeton

University

Margaret Strobel, Professor of History, University of Illinois

at Chicago

Anita Tien, Assistant Professor of History, Wellesley College

Barbara L. Tischler, Lecturer in History, School of General

Studies, Columbia University

Nancy J. Tomes, Associate Professor of History, State Univer-

sity of New York at Stony Brook

Christopher L. Tomlins, Research Fellow, American Bar

Foundation. Editorial Board, Law and History Review

Randolph Trumbach, Professor of History, Baruch College,

City University of New York

Jules Tygiel, Professor of History, San Francisco State Uni-

versity

Mary Kay Vaughan, Associate Professor of History, Univer-

sity of Illinois at Chicago

Morris J. Vogel, Professor of History, Temple University. Co-

Editor, The Therapeutic Revolution: Essays in the Social

History of American Medicine (1979)

App. 18

Rachel Vorspan, Professor of Law, Fordham University

School of Law

Linda J. Waite, Professor of Sociology, University of Chi-

cago. New Families, No Families: The Transformation of

the American Home (1991)

Samuel Walker, Professor of Criminal Justice, University of

Nebraska at Omaha

Daniel J. Walkowitz, Director of Metropolitan Studies and

Professor of History, New York University

Anne Walthall, Professor of History, University of California

at Irvine

Patricia Spain Ward, Visiting Assistant Professor of History,

University of lowa

Susan Ware, Associate Professor of History, New York Uni-

versity

Susan Cotts Watkins, Associate Professor, University of

Pennsylvania

Sydney Stahl Weinberg, Professor of History, Ramapo Col-

lege of New Jersey

Lynn Y. Weiner, Associate Professor of History, Roosevelt

University. Author, From Working Girl To Working

Mother: The Female Labor Force in the U.S., 1820-1980

(1985)

Jonathan Wiener, Professor of History, University of Califor-

nia at Irvine

Barbara Winslow, Adjunct Assistant Professor, City Univer-

Sity of New York, Baruch College

Peter H. Wood, Professor of History, Duke University

Gwendolyn Wright, Professor of History, Columbia Univer-

Sity

App. 19

Winthrop R. Wright, Professor of History, University of

Maryland

Virginia Yans, Professor of History, Rutgers University

Madeline C. Zilfi, Associate Professor of History, University

of Maryland

Judith P. Zinsser, United Nations International School. Ameri-

can Historical Association, Committee on Women Histo-

rians

Michael Zuckerman, Professor of History, University of

Pennsylvania

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