In his syndicated column, Steve Chapman writes that abortion has
a spacious place in our history and traditions. In his 2017 book “Sex and the Constitution,” University of Chicago law professor Geoffrey Stone notes that abortion was legal and widely performed in the United States at the time the Constitution was ratified — and wasn’t outlawed for more than a century afterward.
Oddly, I can’t find the “widely performed” claim in the 2017 book; all I see is the observation that “we do not know the precise extent to which people used contraception or abortion” in the 18th and early 19th centuries and the inference that rates of both must have risen over the course of the 19th century.
Chapman may have picked up this idea from a 2018 Stone article that indeed asserted that “[a]t the time our Constitution was drafted, abortion was often relied upon by single and widowed women to avoid the consequences of illegitimate births.” He also asserts there that abortion “was both common and legal.” This article purports to be based on the 2017 book, so it’s not clear where Stone got the idea that abortion was common at the time of the Founding.
We have several reasons for rejecting the idea. As Joseph Dellapenna emphasizes in his own thorough history of abortion, until modern times there weren’t widely available methods of abortion that were effective without putting mothers in serious danger. Birth rates in colonial America were extremely high: Stone himself, in the book, notes that the average family had nine children, which tells against the common use of abortion that he asserts in the article.
And historians who are more careful and trustworthy than Stone, even historians who themselves favor constitutional protection for abortion, have concluded that abortion was a “marginal practice” (James Mohr) that was “rarely employed” (Estelle Freedman). Stone’s book cites the books in which they recorded these conclusions.
Chapman, and his readers, have been had.
For more on this, including why Stone’s claims about the legal status of abortion at the time of the Founding are misleading, read my recent NR article on the historical mythology that sustains Roe.
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