One of the unfortunate side effects of the abortion regime recently overturned in the Dobbs case is the corruption of scholarly norms among its defenders. From Cyril Means to the “historians’ briefs” in various cases, there seem to be no historical facts that cannot be stretched, distorted, misconstrued, or simply made up by the partisans of Roe v. Wade.
Last week the Washington Post ran an opinion piece by physician Sarah Hougen Poggi and historian Cynthia A. Kierner claiming that Justice Samuel Alito had erred in his opinion for the Court in Dobbs when he concluded that a right to abort unborn children is not “deeply rooted in our history and traditions.” Poggi and Kierner’s attempt to refute Alito rests on a single data point — a once notorious Virginia scandal involving a distant young cousin of both Thomas Jefferson and John Marshall named Ann “Nancy” Randolph. See Thomas Jipping’s post here from yesterday, with which I agree entirely.
Some of the tale Poggi and Kierner tell is easily confirmed. Nancy Randolph, 18 and unmarried, gave birth in early October 1792 to a child who did not survive the night, while she was a guest (along with her sister and brother-in-law, with whom she lived) at the home of friends. What is not certainly known includes the following: whether Nancy had attempted to induce an abortion; whether the child was born alive or stillborn; whether, if alive, it died by violence or of natural causes; how advanced Nancy’s pregnancy was; and who the father was. In 2004, a historian who wrote an entire book on this event and the ensuing scandal wrote that no one “has solved the mystery of who fathered Nancy’s child, nor has any[one] proven conclusively what happened that fateful night,” and added that her own book would “leave these issues unresolved.” That historian was Cynthia Kierner, co-author of the Post essay. But she is not as careful today as she was 18 years ago.
With no new facts in hand, Kierner and her Post co-author Poggi, engaging in a train of sheer speculation on the thinnest of evidence, conclude that Richard Randolph, Nancy’s brother-in-law, was definitely the father, and that what occurred was a “deliberate second-trimester abortion.” Then they observe that Thomas Jefferson took an interest in the case (via his daughter Martha, Nancy’s friend and a witness in a legal examination of Richard), and that Patrick Henry and John Marshall were Richard’s lawyers when he defeated accusations of adultery and infanticide. From all this they conclude that these eminent members of the founding generation “tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution.” And from this — that “the concept of abortion as a private matter was ‘deeply rooted’ in the minds of our nation’s Founders.”
It’s hard to imagine a more absurdly creative claim being manufactured from this case. First, Poggi and Kierner cannot establish that Nancy Randolph’s pregnancy ended in the second trimester. They note that she “would later admit that she was pregnant,” but they do not tell the reader that she said 20 years later that the father of her child had been Richard Randolph’s brother Theodorick (to whom Nancy had been engaged), who had died a full seven and a half months before the child’s birth. If she told the truth, her baby was closer to full-term. Nor can they establish that she intended to induce an abortion, though there is evidence that she took a drug used for “colic” that could also be an abortifacient.
There is a simple reason no full investigation of an alleged abortion took place in Nancy Randolph’s case. Whatever happened that night in Cumberland County, Va., there simply wasn’t enough evidence to sustain such a case. By the time Richard Randolph appeared in 1793 before the justices of the county — having engineered his own possible prosecution in order to squelch rumors that he had impregnated his sister-in-law and then killed their child himself — there were no remains of a child to be examined, and no one against whom a charge of abortion could be laid. If witness testimony could establish both a pregnancy and a live birth, then Richard risked both adultery and infanticide charges. In the end, Henry and Marshall cast enough doubt even on the existence of the pregnancy to have all charges dismissed, pretty adroit lawyering in a case in which there was a pregnancy — and a laborious delivery of some kind.
We have no reason to believe that Jefferson, Henry, or Marshall was certain that an abortion had even occurred. Henry and Marshall were professionally committed to exonerating the alleged father of the baby, and Jefferson’s own daughter Martha had provided the drug Nancy took, of which Martha testified (according to John Marshall’s case notes) she had “known more to be given to pregnant women [than the dose she had supplied], without producing any mischief.” From what we know, in other words, it follows that the Nancy Randolph case means nothing at all respecting the thoughts of Henry, Marshall, and Jefferson on the subject of abortion — let alone the Founding generation more generally.
Even in their version of the tale, Poggi and Kierner rely on the reader’s forgetting by the end of their essay what they told us at the beginning — that abortion was undoubtedly a common-law crime after “quickening” in the 18th century. Poggi and Kierner assert that Nancy Randolph had a second-trimester abortion — virtually certain, that is, to have occurred after quickening. And if Nancy’s own tale 20 years later is the truth, she was at or near full-term, when abortion was universally regarded as a very grave crime. But there was no prosecution. The explanation can only be the dearth of evidence against anyone who could be charged with such an offense — not the “tolerant” view of Virginia’s leading citizens toward young women who aborted their children.
Even if everything Poggi and Kierner claim about the facts were fully credited, the Randolph affair would be exactly one data point, floating somewhere far from the actual trend lines of legal principle in the Founding generation. Poor Nancy Randolph, whose interesting story is so well told in Cynthia Kierner’s 2004 book Scandal at Bizarre, went on to marry Gouverneur Morris and bear his only son two decades later. Her memory is ill served by enlisting her as the reluctant protagonist of an abortion argument in 2022.