After Roe and Dobbs

Published May 16, 2022


In 1869 the Revolution, the women’s rights newspaper founded by Susan B. Anthony and Elizabeth Cady Stanton, published an editorial on the unusual actions of Dr. Charlotte Lozier. Dr. Lozier had caused the arrest of Andrew Moran, a man who had traveled from South Carolina to her medical office in New York City, seeking to procure from her an abortion for a young woman carrying his child. “The Dr. assured him that he had come to the wrong place for any such shameful, revolting, unnatural and unlawful purpose,” the editorial explained. Becoming angry, Moran grew abusive, and Dr. Lozier, twenty-two years old at the time, had him arrested. Excerpting from another newspaper, the Revolution reported, Lozier “insists that as the commission of a crime is not one of the functions of the medical profession, a person who asks a physician to commit the crime of ante-natal infanticide can no more be considered his patient than one who asks him to poison his wife.”

Moran had knocked on the wrong city door that day. Madame Restell, a well-known New York abortionist, would have happily obliged his request. Restell was at that time one of at least two hundred abortionists working in New York City alone, a New York Times article estimated in 1871. The Revolution editorial sought to “expose Restellism,” the term given Restell’s immensely profitable but unlawful line of work. Indeed, Elizabeth Blackwell, the first woman licensed to practice medicine in the United States, lamented Restell’s reputation as a “female physician,” a description that, Blackwell later wrote in her autobiography, “exclusively applied at that time to those women who carried out her vile occupation.” Restell’s practice, according to Blackwell, was an “utter degradation of what might and should become a noble profession for women.” The thousand-year-old Hippocratic Oath still included the duty not to give “a woman a pessary to produce abortion,” after all.

Like the doctors of the American Medical Association (AMA) who successfully lobbied in the mid-nineteenth century for the passage of statutes protective of unborn human beings – in an effort to enhance common law protections in light of contemporary advances in embryology – women’s rights advocates also regarded abortion as “the unwarrantable destruction of human life.” But these women were unconvinced that abortion prohibitions, on their own, would alter the circumstances that caused desperate women to abort. Matilda Gage, a leading women’s rights advocate, captured the sentiment well: “Much as I deplore the horrible crime of child-murder, I cannot believe … that such a law would have the desired effect. It seems to me to be only mowing off the top of the noxious weed, while the root remains. We want prevention, not merely punishment. We must reach the root of the evil, and destroy it.”

A century later, the criminal law that Lozier was asked to break was struck down as an impingement of women’s constitutional “liberty” in Roe v. Wade. Abortion not only became constitutionally protected throughout pregnancy in the United States beginning in 1973; abortion rights also took their place as the central plank of the modern-day feminist movement. That practice Drs. Lozier and Blackwell viewed as antithetical to – a “degradation” of – the medical profession has become understood by many as a basic aspect of health care today.

If the Supreme Court overturns Roe this term, it will reinstate states’ authority to pass laws protective of unborn human beings. As pro-life advocates and legislators consider how they ought to proceed in the post-Roe era, they should heed the wisdom of the early feminists who, as champions of both women and their dependent children, understood the power – and limits – of the law to effect real change.

The Elevation of Women

The nineteenth-century women’s rights advocates – better known to us as the suffragists – had nearly all cut their teeth on slavery abolition work before turning their attention to women’s unequal status in marriage and in society. These women grounded their own rights claims at Seneca Falls in 1848 on the “law of nature … dictated by God himself.” Their Declaration of Sentiments and Resolutions argued that “being invested by the Creator with the same capabilities and same consciousness of responsibility for their exercise” as men, women ought to enjoy equal marital, civil, and political rights.

These views about law extended to their belief about the unlawfulness of abortion, and the rights and duties involved. While they, like feminists today, argued for agency over their reproductive lives – the right of the woman, in Sarah Grimké’s words, “to decide when she shall become a mother” – they were, without known exception, opposed to abortion. Victoria Woodhull, the first woman to run for president and testify before Congress, and an ardent advocate of constitutional equality for women, wrote in 1870 – just two years after the ratification of the Fourteenth Amendment – that children’s rights “begin while yet they remain the fetus,” their mothers “directly charged with the care of embryonic life.” Indeed, the nineteenth-century women’s rights advocates courageously agitated for their rights – to education and entry into the professions, within marriage and in civil and political life – in part so they could fulfill their responsibilities to their children, born and unborn.

In their recognition of the rights of the unborn, these feminists agreed with the doctors who lobbied at that time to strengthen state laws against abortion. Culpability was a different matter, however. The most vocal anti-abortion doctors tended to place the blame for abortion on the women themselves. In 1871, the AMA’s official Report on Criminal Abortion endorsed this view: the woman “becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract. She yields to the pleasures – but shirks from the pains and responsibilities of maternity.”

The women’s rights advocates strenuously disagreed with this characterization. Gage, Grimké, and others each pointed out that men’s sexual appetites inside and outside marriage, and subsequent lack of responsibility, often put women in a position where they felt powerless to refuse, and were left to deal with the consequences on their own.

Sarah Norton of the Working Women’s Association cast blame directly on the perennial double standard, looking forward to a time when “the unchastity in men will be placed on an equality with the unchastity of women, and when the right of the unborn will not be denied or interfered with.” These early feminists spoke out for “voluntary motherhood” – the phrase used to agitate for a woman’s legal right to say no to sex. At the same time, they called for mercy for women whose unequal social status and difficult circumstances led them, out of desperation, to seek out abortions.

The year before Dr. Lozier’s publicized confrontation with Andrew Moran, Lozier publicly defended Hester Vaughn, a young woman sentenced to death on a charge of infanticide. Vaughn was an English woman working as a domestic servant in Philadelphia who had been both impregnated and abandoned by her employer. After Vaughn gave birth alone in an unheated attic in the winter, her child was found dead, having suffered injury to the skull. Alongside the many women’s rights advocates who came to Vaughn’s defense, Lozier declared, “That poor woman, in her agony, alone, without fire, without life, may have injured the child, but not willfully.” In the pages of the Revolution, Elizabeth Cady Stanton lamented the sacrifice of women and children “to the barbarous customs of our present type of civilization, to the unjust laws that make crimes for women that are not crimes for men!” Ultimately, the governor was persuaded to pardon Vaughn.

The women’s rights advocates maintained strongly that women were often forced into abortion and even infanticide, much as a destitute man is forced to steal bread for his family. Abortion was evidence, as Mattie Brinkerhoff put it in 1869, that “by education or circumstances [the woman] has been greatly wronged.” These women thus pushed back not on abortion prohibitions themselves – as they too believed that unborn children should be protected by the law – but on the inattention given the underlying causes and mitigating factors involved. For they knew that prohibitions on abortion did not themselves alter the circumstances of women who sought out the procedure in the first place: the wild success of Madame Restell’s underground practice ought to have disabused anyone who assumed differently. Desperate women throughout human history have resorted to desperate measures. This should be a warning to pro-lifers today.

These early feminists focused their efforts on those educational, cultural, and legal means that would so improve women’s lives that they would not feel the need to seek abortions. In addition to advocating for equal rights in property, contract, marriage, education, the professions, and the franchise, these advocates worked for improvements in maternal and fetal health, founding female-staffed hospitals for women, and raised funds for the creation of maternity homes in which vulnerable mothers – abandoned, impoverished, or fleeing abuse – would be supported to nurture and raise their children with confidence.

Prenatal and Reproductive Justice Today

Seventy-five percent of women who abort in the United States today cite lack of financial resources as the motivating factor for their abortions, and the vast number of women who end their pregnancies are poor or very poor. In this country, it’s not uncommon for a woman to need to return to work just days after having given birth. With all that has changed since the nineteenth century, the fact remains that women often conceive children in precarious circumstances today. Many pro-life and pro-choice advocates agree that generous social provisions for poor women and their families – and humane workplace accommodations for childbearing and rearing – would decrease the rate of abortion in the United States. As the most basic purpose of a political community is to provide the stable, just, and peaceable conditions for people to carry out their duties to one another, ensuring the poor have the material resources to care for their children is simply a matter of social (or distributive) justice.

But the early women’s rights advocates not only agitated for improved social conditions so that women might responsibly carry out their duties to their children, born and unborn. They also worried that easy abortion access would itself work to deteriorate those conditions even further. They believed that the decoupling of sex from childbearing enabled by nascent contraceptive and increasingly available abortive methods would empower men to prioritize their own sexual satisfaction and to ignore the asymmetrical consequences of the act.

If legal reforms to marriage and criminal law in the late twentieth century worked to undo the institutionalized male sexual prerogative that the advocates of voluntary motherhood had fought, the unfettered right to abortion entrenched that prerogative once again, unleashing a casual sex ethic favorable not to women but to irresponsible male sexuality, just as the early feminists had feared. Planned Parenthood’s Alan Guttmacher presciently saw the consequences well before his organization became the leading abortion provider; in 1968 he wrote in the Rutgers Law Review: “Abortion on demand relieves the husband [or man] of all possible responsibility; he simply becomes a coital animal.” The widespread abdication of paternal duties worsened conditions for maternity and substantially contributed to a disproportionately female poverty rate today.

Meanwhile, corporate America has for the most part carried out the fears of the early women’s rights advocates as well. The idea of a pregnancy as an unwelcome, inconvenient, and expensive “choice” seems to be well-enshrined in still rampant pregnancy discrimination alongside “the business case for reproductive health,” with corporate consultants touting contraceptive and abortion coverage as a means for companies to obtain “high-impact benefit with low-cost investment.” By contrast, the early women’s rights advocates saw that when you belittle the moral status of the unborn child, you belittle each and every expectant mother, for the value of the labor she is undertaking depends on the intrinsic value of the dependent human child in her care. They thereby sought to transform societal institutions to be more hospitable to women and children alike.

In the post-Roe era, abortion-rights organizations will continue to fight state by state (and in Congress too), advocating abortion as the lynchpin of women’s freedom and equality. But note the fundamental reversal: the act that women’s rights advocates once considered evidence of women’s unequal status in society is championed as an essential component of women’s equal status today. The act that poor women were “forced to commit” is now the privileged response to female poverty in our day.

Today, pro-life activists should especially take heed of the early feminists’ advocacy for women harmed by punitive attitudes within the medical and legal establishment. No jurisdiction ever prosecuted women for their abortions, nor should they if Roe falls. But blame-casting and overzealous investigations of illegal abortions sometimes kept women from seeking out healing and lifesaving medical care.

Women and their families will not be served by politics as usual. Red states should not be able to stand on their post-Roe abortion bans as evidence of pro-life accomplishment while their pregnant residents and children face poverty, substandard health care, overweening scrutiny of miscarriages, and nonexistent workplace accommodations. Blue states should not be able to stand on their more generous health, welfare, and work supports as evidence of their pro-woman bona fides while their pregnant residents and children face the coercive underbelly of unlimited “choice.” Neither path is the pro-life, pro-woman one.

The justice we need today would look to both protect and promote the health and well-being of unborn children and their mothers and ensure that all women, especially the poor, have the financial resources, medical support, and workplace accommodations they need to care for their children once they are born. Such care may in some instances include the courageous choice to place a child with an adoptive family. It should demand the father’s participation (which will mean securing good work for working-class men). In the best-case scenario, such affirmative measures would be included in the very bills that restrict abortion, so as not to render them optional or an afterthought. If politics continue as usual (which is likely, at least in the short term), the onus will remain on charities, churches, local organizations, and dedicated individuals to come through in solidarity with women frightened by their seeming lack of options – all the while continuing to advocate for a more just society across the board.

After all, without considerable support, poor women especially will continue to be subject to a perennial Catch-22: abortion’s availability (online via the abortion pill, in another jurisdiction, or underground) will seem to obviate the dire need for a total cultural transformation on behalf of mothers and their children, born and unborn, the one that nineteenth century women’s rights advocates had only just begun.

Thanks to their efforts, many of the equal rights the early feminists fought for went from nearly unthinkable in their society to taken for granted today. But much of their vision for justice remained unrealized in their lifetimes. May we work to realize it in ours.

EPPC Fellow Erika Bachiochi is a legal scholar specializing in Equal Protection jurisprudence, feminist legal theory, Catholic social teaching, and sexual ethics. She is also a Senior Fellow at the Abigail Adams Institute in Cambridge, MA, where she founded and directs the Wollstonecraft Project. Her newest book, The Rights of Women: Reclaiming a Lost Vision, was published by Notre Dame University Press in 2021.

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