The Volokh Conspiracy
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In this, the fourth in a series of five pieces derived from my new book, "Sex and the Constitution," I will briefly address attitudes toward contraception and abortion in the 19th century. In the 18th and early 19th centuries, there were no laws prohibiting either contraception or abortion before quickening (defined as the moment in pregnancy when a woman first feels fetal movement, usually at 4½ months). By the 1870s, approximately 20 percent of all pregnancies were terminated by legal abortion. During this era, advertisements for both contraceptives and abortions services were commonplace.
Daily newspapers regularly ran ads for products that promised to "cure" pregnancy—a euphemism for terminating a pregnancy. Ads for "Cherokee Pills," for example, promised that if used during the first three months of pregnancy, "the unfailing nature of their action would infallibly prevent pregnance."
In the 1840s, the flamboyant Ann Lohman Restell, popularly known as "Madame Restell," was the most famous abortionist in New York City. Born in England, Restell emigrated to America in 1831, where she was forced to make a living as a seamstress. She gradually developed an interest in women's health, and began selling birth control products such as "preventative pills." She then turned to abortion and served a genteel, middle- and upper-middle class clientele. She charged between $50 and $100 per abortion. Her abortion business on Greenwich Street proved highly profitable, yielding a considerable fortune and a lush mansion on Fifth Avenue. Madame Restell touted her "celebrated powers for married ladies," and advertised extensively in the penny press of the day. For example:
To married women: Is it but too well known that the families of the married often increase beyond what the happiness of those who give them birth would dictate? In how many instances does the hard-working father, and more especially the mother, of a poor family remain slaves throughout their lives, urging at the oar of incessant labor, toiling to live, living but to toil. … Is it desirable, then, … for parents to increase their families, regardless of consequences to themselves, or the well-being of their offspring, when a simple, easy, healthy, and certain remedy is within our control?
Ads of this sort were common at the time, and the abortion trade competed openly, each boasting of its greater effectiveness, safety and confidentiality.
The first serious effort to interfere with reproductive freedom occurred during the Evangelical explosion of the Second Great Awakening. In 1845, for example, New York enacted a novel antiabortion law that declared it unlawful for any person to administer, prescribe, advise, procure or use any "medicine, drug, or substance or thing whatever," or to perform or submit to "any operation, or other means whatever, with intent" to cause "a miscarriage." The New York law applied without regard to whether the abortion was pre- or post-quickening and it applied even to the woman herself. This was a radical departure from the English common law, the law in the American colonies, and the law in the United States until that time.
Madame Restell, by the way, was one of the first targets of New York's new law. She was arrested and charged with illegally procuring a pre-quickening abortion for one Maria Bodine. The trial generated daily headlines and Madam Restell was convicted and sentenced to a year in prison on Blackwell's Island. Over time, the New York law became a model for the nation. By the end of the 19th century, for the first time in history, every state had enacted legislation prohibiting abortion from the very moment of conception.
After the Civil War, in a movement led by Anthony Comstock, the prohibition on reproductive control was extended to contraception. In 1873, at the height of the Victorian era, Congress enacted the federal Comstock Act, which made it a crime, among other things, for any person to send through the mail "any drug or medicine, or any article whatever, for the prevention of conception" or any advertisement for such articles or any information about "when, where, how, or of whom, or by what means," any such products "can be purchased or obtained."
The act represented a triumph of the moralists' assault on sin, sex and reproductive control. It reflected the belief, vigorously advanced by Anthony Comstock, that information about contraception is "obscene" because it deals with sex and encourages immoral thoughts and behavior. Comstock insisted that "religion and morality are the only safe foundations for a nation's future posterity," and that birth control must therefore be outlawed. This was so, Comstock explained, because the availability of contraceptives reduces the risk that individuals who engage in premarital sex, extramarital sex or prostitution will suffer the consequences of venereal disease or unwanted pregnancy. Thus, he reasoned, the availability of contraceptives is immoral, because it facilitates immoral conduct.
In the 20 years after Congress enacted the Comstock Act, most states enacted "little Comstock acts" of their own, many of which went even further than the federal law. Some made it a crime not only to sell information about contraception, but also to give such information away, to possess it, or even to share it with others orally. Connecticut declared it unlawful for any person to purchase, possess or even use contraceptives.
With the federal Comstock Act in place, a triumphant Anthony Comstock rolled up his sleeves and aggressively enforced the law. Never one to shun publicity, in 1878 he orchestrated the arrest of Madame Restell. Comstock personally rang the bell of Madame Restell's basement office on East 52nd Street, claiming to be a married man whose wife had already given him too many children. He said he was worried about her health and hoped Restell might be able to help. She sold him some pills. Comstock returned the following day with a police officer and had her arrested. Rather than suffer the indignity of another prosecution and imprisonment, the despondent 67-year-old Restell committed suicide by slitting her own throat in the bathtub.
Comstock later boasted that Restell was the 15th target of his investigations to commit suicide. Closing his file on Restell, he penned a final comment: "A bloody ending to a bloody life."
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Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago.