A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”
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Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.
In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” or the moment the pregnant person first felt fetal movement — a highly subjective milestone that usually occurred around 16 to 22 weeks of gestation. Yet even after quickening, few people were prosecuted for abortion, let alone convicted — Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: In the early republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.
In fact, contrary to Alito’s assertions in Dobbs, three Founders from Virginia — Thomas Jefferson, Patrick Henry and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion was discovered.
In 1792, 18-year-old unwed Nancy Randolph was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, aptly named “Bizarre.”
In September, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, visited and found Nancy unwell and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On her return home, she sent Nancy the herb, which she warned could “produce an abortion.”
Two weeks later, Richard, Judith and Nancy visited the home of their cousins, Randolph and Mary Randolph Harrison. Nancy appeared ill and retired early to bed, awakening with a scream in the middle of the night. The next morning, Nancy’s bedclothes were bloody. Randolph Harrison saw blood on the stairs and noted “[Nancy’s] considerable paleness and a disagreeable odor.”
When an enslaved man found what appeared to be a White fetus on a woodpile, rumors spread through the community of enslaved people to Whites of all classes quickly, reaching Philadelphia, where Jefferson expressed sympathy for Nancy in a letter to daughter Martha, declaring: “I see guilt but in one person, and not in her.” Jefferson’s response was typical of that era, a time when upper class White women like Nancy were viewed as morally pure and sexually chaste by nature.
Many among the general public believed that Richard impregnated his sister-in-law — which was incest under Virginia law — and that he also murdered a living infant. His honor and life were at risk. Richard vehemently asserted his innocence in a newspaper. His public statement had little effect, and, facing mounting pressure, he surrendered to the county sheriff. Richard was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same.”
Medically, five pieces of evidence suggest that what happened was not murder of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortifacient. Second, witnesses reported her enlarged abdomen, though not a full-term pregnancy. Third, Nancy’s brief cries were more consistent with latent labor than active labor. In latent labor, the cervix dilates to four-to-six centimeters, sufficient for passage of a one-to-two-pound fetus. Uncomfortable but not unbearable, and sometimes lasting days, latent labor in the second trimester ends abruptly with the expulsion of the fetus. (At full term, hours of painful active labor follow to achieve 10-centimeter dilation and pushing efforts.)
Fourth, no one reported a baby’s cry, suggesting pre-viability outside the womb. Finally, Nancy later delivered a son at term, indicating she had no risk factors for second-trimester miscarriage such as uterine or cervical anomalies. Altogether, the evidence supports the conclusion that Nancy ingested herbs to induce a second-trimester abortion and that her effort was successful.
In April 1793, Richard appeared before a tribunal of county judges who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled a good team: Henry, a charismatic litigator and former governor famous for his “Give me liberty or give me death” speech; Marshall, a rising star and the future U.S. Supreme Court chief justice; and William Campbell, the U.S. attorney for Virginia.
The circumstantial obstetric evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrisons’ home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and that she delivered the herb, noting that the gum of guaiacum was “designed” for producing an abortion. But he did not describe this as a crime.
No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening. If it was post-quickening, the state could have prosecuted Nancy and Martha. Instead Henry skillfully undermined the credibility of the prosecution’s witnesses, and Marshall successfully took the untenable position that there was never a pregnancy and, thus, Richard could not be guilty of murder.
While the release of Richard — a wealthy White man with great lawyers — was not surprising, what was remarkable and relevant to today’s debates is that evidence of an intended abortion was discovered in an unwed, unpropertied woman and not fully investigated or acted upon. Nancy would later admit she had been pregnant, yet neither she nor her accomplice were ever charged.
Abortion was later criminalized in Virginia and across other states in the 19th century. But these laws reflected the development of modern gynecology more than a change in morality. The curette, introduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow for passage of a curette, which removes tissue from the uterus. Abortion transformed from a private, female matter to the purview of male medical professionals, who excluded other providers by influencing lawmakers.
Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (1973), that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”
Though Marshall’s notes on Commonwealth v. Randolph are extensive, this episode is poorly documented in the county court records, and, thus, no formal case law was generated. Regardless, the episode begs examination as it involved key Founders who occupied vastly different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshall believed in a strong national government. Jefferson mostly supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy went on to marry Gouverneur Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.
If anything, the saga demonstrates that the concept of abortion as a private matter was “deeply rooted” in the minds of our nation’s Founders. As Americans consider their next move on the abortion issue at the state level, they should be mindful of the precedents followed by these early giants of our republic.
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