On Monday night, Politico reported that a Supreme Court made significantly more conservative by President Donald Trump’s appointments had voted in an initial conference on a Mississippi abortion case to overturn the line of decisions beginning with Roe v. Wade in 1973 that provide the right to have an abortion. The bombshell report also included a draft opinion that it said Justice Samuel Alito had written.
The Founders may not have intended in 1789 to secure for the people of the United States liberty to choose whether to continue a pregnancy. The framers of the original Constitution and the Bill of Rights are not known to have contemplated abortion choice as it relates to the balance between individual and family autonomy on the one hand and state power on the other.
But, the Constitution underwent a radical transformation after the Civil War. A document that had tolerated human bondage and been interpreted to deny Black people the privileges of citizenship was amended to embrace principles of human equality and republican freedom. The 13th Amendment secured the blessings of liberty by ending slavery. The 14th Amendment protected against unwarranted invasions of human liberty.
The lawmakers who implemented those changes did so in direct response to slavery’s heartless separations of families and to enslavers’ brutal practices of human breeding.
Speaking on the Senate floor in 1866 to the civil rights that the Reconstruction Congress meant to protect, Sen. Jacob Howard of Michigan, a member of the Committee on Reconstruction, noted that the enslaved had no right to be a spouse or parent in the eyes of the law and were “not at liberty to indulge the natural affections of the human heart” for children or partners. “What definition,” he asked, would you attach to the word freedom without these rights?
Howard and others understood that slavery had denied enslaved people familial rights and control over their reproductive choices. “Slave narratives,” written by people who had been enslaved but found freedom, spoke movingly of the loss of reproductive control. J.W. Loguen’s narrative told of his determination not to partner because, as he put it, slavery would “never own a wife or child of mine.” The narrative of Henry Bibb contained these words: “If there was any one act of my life while a slave, that I have to lament over it is that of being a father and a husband of slaves.” Bibb vowed that the daughter whom he left in slavery was “the last … that ever I will father, for chains and slavery on this earth.”
Enslaved women seized control of their reproductive capacities in more direct ways. Some were abstinent or used substances and devices to prevent conception or to induce abortion. Herbert Gutman, the historian of slavery who compiled the most extensive evidence of these practices, details physicians’ reports that abortion and miscarriage occurred with inordinate frequency among enslaved women.
One doctor found that during slavery “all country practitioners … [were] aware of the frequent complaints of planters about the unnatural tendency in the African female to destroy her offspring.” Another physician reported that some enslaved women tried “to effect an abortion or to derange menstruation” by medicine, violent exercise and “external and internal manipulation.”
Enslaved women also used abortifacients, including vaginally inserted rags, and ingested tansy, rue, roots and seed of the cotton plant, pennyroyal, cedar gum and camphor. There is little doubt that these actions were enslaved women’s efforts to exert control over their bodies and their progeny. In a biographical booklet published in 1897 by a daughter of her former enslaver, Jane Blake was said to have refused to bear children for enslavement. As the author of Blake’s biography commented: “If all the bond women had been of the same mind, how soon the institution [of slavery] could have vanished from the earth.”
Freedom meant the right to have families on one’s terms. A childless enslaved woman was sold as “unsound” in 1857, presumably because she was barren; she had three children after emancipation. Following and even during the Civil War, emancipated couples that previously were unable to have their unions legally recognized rushed to claim legal status for their families.
Historian James McPherson documented this rush to marriage. An agent of the federal government’s Freedmen’s Bureau reported legalizing 79 Black marriages in a single day. A Black Union soldier told the government official of the many prayers he had made for legal recognition of his family, calling that recognition a mark of respect and a sign that those formerly enslaved had been “established as a people.” A Mississippi regiment chaplain who had legalized 43 marriages reported that emancipated people considered the Civil War not only an exodus from bondage, but a “road to Responsibility; Competency; and honorable Citizenship.”
The Reconstruction amendments were inspired by antislavery beliefs, and they were designed to extend to all people the right to have autonomous life choices of the kind that slavery had so cruelly restricted. In the words of Sen. Lyman Trumbull of Illinois, an author of the 13th Amendment, their authors designed the amendments to assure that liberty was restrained only so far as necessary for the public good. “And no further.”
Other members of the Reconstruction Congress made clear that this liberty principle extended to the realm of partnering and reproduction. Rep. John Creswell of Maryland decried the fact that enslaved people could not claim their spouse, their child or even their own bodies. Rep. Robert Elliott of South Carolina noted that because partners could be separated at an owner’s will slavery “could not know a home,” and that no act could secure freedom if it did not contemplate “the security of home.” Sen. Henry Wilson of Massachusetts said that upon passage of the 13th Amendment “the sharp cry of the agonizing hearts of severed families will cease to vex the weary ear of the nation.”
For more than 200 years, America lived with slavery and felt the brutality of its disregard of enslaved people’s family ties and of their reproductive autonomy and choice. As a consequence, the United States amended its Constitution to strengthen its commitment to human liberty in the formation and families and the conduct of family life. This history frames today’s debates about reproductive freedom.