From the January/February, 2007 issue of Touchstone

The Fog of Choice by Christopher Tollefsen

The Fog of Choice

Dispelling the Myths of Abortion History
by Joseph W. Dellapenna
Carolina Academic Press, 2006
(1,300 pages, $95.00, hardcover)

reviewed by Christopher Tollefsen

The sinews of his stones are wrapped together.” So the Book of Job speaks of Behemoth, sometimes understood to be Satan. Some have held this to mean that Satan can literally entrap us in sin, leaving us damned if we do, and damned if we don’t. But a different reading is possible: By snaring us in one sin, Satan inevitably snares us in many.

Joseph W. Dellapenna’s new, and immense, history of the laws, mores, and technologies of abortion is, in essence, a 1,300-page summary of much of the empirical evidence of Satan’s capacity to ensnare us. For Dispelling the Myths of Abortion History, written by a Unitarian professor of law at Villanova University, shows how one of the twentieth century’s great violations of the moral law, abortion, corrupted everything and everyone with which it came into contact.

Dellapenna’s major focus in chronicling this corrosive effect of abortion is the work of twentieth-century historians who allowed advocacy for abortion to overshadow their commitment to truth and intellectual integrity. In the course of promoting, and then defending, abortion on demand in the United States and elsewhere, such historians as Cyril Means before Roe v. Wade, and James Mohr afterwards, established an almost unquestioned orthodoxy on the history of abortion rights.

This orthodoxy posits four theses: (1) that abortion was not a crime at common law before the nineteenth century; (2) that it was common and relatively safe through that time period; (3) that abortion statutes enacted in the nineteenth century were passed for the purpose of protecting maternal, not fetal life; and (4) that such statutes were enacted as part of a social movement to put “irregular” and mostly female practitioners of medicine, such as midwives, out of business altogether.

False Theses

Scholars have known for some time that all four of these theses are false. Consider, for example, the English case of Regina v. Webb. Webb was indicted in 1599 for self-abortion with poison “to the most pernicious example to all other wrongdoers in similar cases, against the peace of the said lady the Queen,” according to the court record.

The case is important, though not unique, in showing the falsity of the orthodox claim that abortion was only a crime when imposed upon an unwilling woman. A bit of reflection on this case also illustrates a number of facts that must be taken into consideration by any historian of abortion, facts neglected by the orthodox historians.

It does not take much imagination to recognize the difficulty Webb must have faced in attempting a successful abortion. The list of substances consumed by women for abortifacient purposes throughout history is long, and includes anise, cardamom, celery, chicory, ginger, horseradish, and mint. These clearly did not accomplish their desired ends.

Then there are the toxic alternatives. Mild poisons, like camphor, castor oil, and mandrake root, and highly poisonous substances like absinthe, hellebore, nightshade, ratsbane, and later kerosene and Lysol, have all been taken to induce abortions. In low doses, these would likely have been ineffective, but taken in quantities capable of causing abortions, they would also be capable of killing the mother.

Yet intrusion techniques were quite rare until the late nineteenth century, for the very obvious reason that they, too, were incredibly dangerous for the mother. So where did the orthodox claim that abortion was common and relatively safe even come from?

Suppose someone did successfully abort with a poison. How difficult in the fifteenth or sixteenth century must it have been to successfully make the case for the prosecution that a woman, or her agent, had in fact caused the abortion?

Historically, as Dellapenna points out with force, the problem of evidence was one of the most significant difficulties for prosecution of abortion. The difficulty gave rise, in part, to the tradition of viewing the mother as the victim, rather than the perpetrator of the crime, since thereby she could perhaps be convinced to stand as a witness against her abortionist.

Misused Silence

These commonsense facts about abortion—that the technology did not exist for it until relatively recently, and that it is a particularly secret crime, difficult to discover and prove—are crucial in considering the history.

For example, they make clear why, increasingly after the seventeenth century, abortion was treated as a felony only when the child was first born alive and then died, a fact the orthodox historians use to suggest that abortion was lawful otherwise. Rather than indicate that abortion was anything other than unlawful in other cases, this legal practice primarily reflected the difficulty of providing adequate evidence that a woman or her agent caused the child’s death.

The absence of effective abortion technology is one reason why abortion was not a major legal concern prior to the nineteenth century. Unlike infanticide, to which women resorted with disturbing frequency, successful abortion was simply not very common.

It is rather remarkable how this silence about abortion became translated into claims that abortion was common. But that is the way with abortion history: Advocacy overcame fact, political ends overwhelmed the service of truth. And thus, commitment to the cause led, among historians and lawyers, to the neglect of the norms for honesty in inquiry and in the communication of scholarly findings.

Effective Neglect

Similarly corrupted were the courts, which rushed to accept bogus claims as grounds for judgment, and then backed obviously faulty judgments with more bogus claims. In no case have the justices of the Supreme Court ever looked honestly and responsibly at either the history of abortion in the United States or at the embryological evidence that shows that human beings begin at conception.

Justice Blackmun cited Means’s erroneous findings no fewer than seven times in Roe. Following Means, he claimed that abortion was not a common-law crime and that statutes outlawing abortion were not generally adopted until after the Civil War.

In fact, the first abortion statute was adopted in Connecticut in 1821, and by 1868, 30 of 37 states had statutes on the books. Of these laws, only three were limited in application to post-quickening abortion alone. This fact is critical, since much of the discussion of abortion in terms of constitutional law centers on the Fourteenth Amendment’s guarantee of equal protection.

As Dellapenna writes: “Abortion, all too obviously except to the most politically motivated historians, was not a ‘common law liberty’ when the Fourteenth Amendment was adopted. Justice Blackmun’s conclusion in Roe v. Wade that abortion did not generally become a crime, at least after quickening, until after the Fourteenth Amendment was adopted is simply wrong.”

Notable in Dellapenna’s narrative is his account of the attempt by Justices Souter, O’Connor, and Kennedy in Casey v. Planned Parenthood (1992) to end the controversy once and for all. These three simply asserted that abortion was now firmly established as the law of the land, and that it would be detrimental to respect for the law and the Constitution to buck precedent—end of discussion. As Dellapenna writes, quoting Ring Lardner, “‘Shut up,’ he explained.”

So the right to abortion was established on the basis of faulty history, faulty science, and, of course, an extremely dubious understanding of the right to privacy. Supreme Court evasions and distortions did not end there, however.

The Court’s neglect of truth, historical, legal, and otherwise, had a further effect: “A casualty of the struggle over the stories courts tell about abortion has been respect for the legal process and the rule of law.” A crisis of truth thus goes hand in hand with a crisis of law; for a Unitarian, Dellapenna sounds at times remarkably like John Paul II.

Hostile Structures

Perhaps one of the saddest parts of the history of abortion, and its corrosive effect on the souls of those involved, is the intersection of that history with the history of feminism and the women’s movement. Pro-lifers were rightly indignant several years ago when Ken Burns’s film about the early feminists, Not for Ourselves Alone, failed to mention their consistent opposition to abortion.

But this opposition was not only the almost universal norm among feminists such as Susan B. Anthony and Elizabeth Cady Stanton; it was also framed as both child- and woman-centered. The early feminists argued that abortion was wrong because it was child murder, but they also argued that to treat one’s child in this way was to acquiesce in just the sorts of hostile social structures that gave rise to their movement in the first place.

This is an important point. Women of the nineteenth century confronted genuine social discrimination, facing significant restrictions in their education, employment opportunities, and legal standing. But they recognized that abortion failed as a social leveler and merely recreated the structure of oppression in a different form, while it maintained the status quo by enabling male sexual exploitation without consequences. Even today, while abortion is sold as a woman’s issue, it continues to receive more support, and in particular more money, from men.

The feminism of today is for the most part a far cry from the pro-life feminism of the nineteenth century. And in its embrace of abortion as its supreme cause, contemporary feminism would stand convicted, by the older feminists, as one of the greatest sell-outs in history.

Feminists for Life rightly have a claim to be the descendents of nineteenth-century feminism, which also, and not incidentally, was generally supportive of initiatives to strengthen the institution of marriage. Early feminists were not unmitigated forces for good—many abandoned traditional Christianity, some advocated free love—but they deserved better than what history had in store for their movement.

Corrupting Abortion

The story of corruption does not stop there, of course. Abortion was the moral ruin of many Protestant clergy before and after Roe, who provided referrals to young women and agitated for “choice.” Since Roe it has been the moral ruin of many Catholic politicians and, too often, clergy both Catholic and Protestant, who while “personally opposed” would not “impose” their views on others.

And it has been the ruin of the press, which has unquestioningly bought and repeated almost every lie and half-truth abortion’s orthodox historians offered, in addition to inventing their own. A personal favorite: In a 2003 editorial, the New York Times called for a “fuller and franker” discussion of abortion. Yet throughout the editorial, the editors referred to the fetus as “a potential life.” Well, it must be true: After all, Roe explained that “there has always been strong support for the view that life does not begin until live birth,” and it depended upon distinguished modern scholars.

Dellapenna’s catalog of errors is depressing, albeit instructive and important reading. Yet a crucial part of the story must not be overlooked. Dellapenna believes that the desire for abortion has been more or less constant through history: Women have always had unwanted pregnancies, and desired to end them.

This is not to say abortion was generally considered, even by these same women, a morally right act. But throughout history, there were many reasons not to have an abortion: It was wrong, it was practically not possible, and it could kill the mother.

Modern abortion technology removes two of those reasons. Dellapenna thus sees it as responsible for a major social change from a world in which abortion was rare, even if wanted, to a world in which abortion is common because it is available on demand.

But (and Dellapenna might well agree) the effect of technology is not merely to make possible what we have always wanted. Just getting what we want is never enough; we must be convinced that what we want is good, right, or at least necessary. So we have reconfigured our understanding of morality, religion, family, law—our entire social world—to rationalize the choices we have made.

Dellapenna describes this new understanding as “technomorality.” It is concerned with self-fulfillment and self-expression, and is pragmatic in its willingness to sacrifice the good of some for the good of others.

The great problem this highlights is that these technologies are not going away. We will never return to a world in which the choice to abort is declined for reasons of prudence, and this will probably be true even in a world in which abortion is prohibited by law.

Legal prohibition is important, and will undoubtedly have some positive effect. But the problem of abortion is, in fact, a problem of choice, a problem of understanding and embracing human life in its earliest stages, even when that life can be eliminated to our great convenience. And this is no easy choice to make, not when an entire culture has been enmeshed so tightly in the devil’s snares.

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