Jennifer Schuessler in the Times today:
Leslie J. Reagan, the author of “When Abortion Was a Crime: Women, Medicine and Law in the United States, 1867 to 1973,” said in an interview that abortion was common in the early 19th century . . .
In 1827, Illinois became the first state to criminalize abortions pre-quickening. In 1829, New York elevated the offense from a misdemeanor to a felony.
These laws were driven by various motivations. According to the historians’ brief, the stricter statutes enacted through the 1840s and 1850s “were often in response to alarming newspaper stories about women’s deaths from abortions. Yet despite these new laws on the books,” the brief says, “abortion convictions remained rare.”
This echoes Professor Reagan’s book, which argues (citing the historian James C. Mohr) that the earliest laws regulating abortion were poison-control measures meant to protect women from dangerous abortifacient drugs, rather than to restrict abortion itself.
Mohr’s book, p. 27, quoting the New York law:
Every person who shall wilfully administer to any pregnant woman, any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with the intent to procure thereby the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose; shall, upon conviction, be punished by imprisonment in a county jail no more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.
Mohr’s book, p. 44:
[The earliest U.S. legislation on abortion] probably reflected the continued perception of abortion in the United States as a fundamentally marginal practice usually resorted to by women who deserved pity and protection rather than criminal liability. While the accuracy of that perception can never be checked, the available evidence on abortion during the 1830s continued to confirm it.
Mohr’s book, in short, conclusively demonstrates that the New York law was not a narrowly-drawn matter of “poison control,” as the Times suggests, and casts doubt on its credulous repetition of the claim that abortion “was common in the early 19th century.”