Remembering the first state law that specified abortion
If there’s no written law against abortion, is it legal or illegal? That’s what some legislators wondered early in 1821. That’s why May 5 is a day to sing happy birthday to America’s first statewide pro-life law, created in Connecticut 200 years ago.
It’s not the bicentennial of abortion illegality, though. Based on moral law (derived from the Bible) and common law (the English and American legal tradition), abortion was always illegal in early America. Nevertheless, no state had a specific law concerning it.
Some local laws existed. A New York City ordinance passed on July 27, 1716, required midwives to swear that they would “not Give any Counsel or Administer any Herb Medicine or Potion, or any other thing to any Woman being with Child whereby She Should Destroy or Miscarry of that she goeth withal before her time.”
For a time, further legislation seemed unnecessary: Humans outside the womb viewed humans in the womb as human life, so general laws against murder applied. We don’t have separate laws today banning the killing of people at age 10, age 20, age 30, or age 40: Murder is murder.
Besides, prosecutions for abortion always faced higher hurdles than the standard murder investigation, because it was easier to dispose of the corpse. Non-prosecutable via lack of evidence was not the same as legal: It’s not legal to murder a person in a distant place as long as no one is looking and the murderer leaves no footprints. Still, abortion in early America was rare, and part-time legislators had other work to do—until a Connecticut scandal hit newspaper pages.
Politicians there responded to citizen outrage after celebrity Pastor Ammi Rogers added to his list of seductions teenager Asenath Smith—and then pressured her to have an abortion. The Norwich Courier criticized Rogers’ “cold calculating depravity of heart.” The jury agreed, yet the judge gave Rogers only a two-year sentence, to be served not in the hard-time state prison, but a relaxed local jail.
Given that laxity, the Connecticut General Assembly decided it had to target abortion specifically. The text of the 1821 law shows an obvious response to the Rogers case. The rascally reverend said the abortion might “have been produced by sickness, infirmity, or accident in the mother.” The new law stipulated that anyone who made a pregnant woman consume an abortion-causing substance, regardless of results, could spend not only two years in jail, but the rest of his life in state prison, if the jury and judge so determined.
As cities grew, other sensational cases emerged. Laws followed. From 1865 through 1920, pro-life laws within the context of a culture of life saved millions of lives. Doctors led the way, writing medical journal articles with titles like “A Plea for the Protection of the Unborn” and “The Rights of the Unborn Child.” They cited 19th-century scientific discoveries to show that “life begins at conception” was a matter of science and not only faith.
Female doctors were especially influential as they wrote popular books. Dr. Prudence Saur wrote in Maternity (1889), “That the embryo is alive and hence quick from the moment of conception, modern science has abundantly proven. It follows, then, that this crime is equally great whether committed in the early weeks of pregnancy or at a more advanced period.” Dr. Minnie C.T. Love in 1903 summarized progress: Americans had learned that life begins at conception, as “science demonstrated, social economics demanded, and religion exhorted.”
Yet Saur also wrote regarding abortion that “the influence of Christianity has ever been to banish the practice … as Christianity becomes weakened or destroyed, the fearful evil in question reappears and extends.” That’s where we are now. We need more pro-life laws. The Supreme Court needs to stop acting as the Supreme Legislator. But the heart change that can lead to a culture of life is crucial—and the root of “crucial” is crux (cross).
Honor Connecticut’s bicentennial and Jesus’ bimillennial.
—Marvin Olasky’s latest book is Abortion at the Crossroads
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