April 23, 2007
Who’s a Strict Constructionist? VI Posted by John Steele Gordon at 03:25 PM EST Joshua Zeitz’s latest post is most interesting and informative, but I would still disagree with his statement that, “given how jealously the early Americans guarded the sanctity of their homes and their private sphere—this was, after all, the rationale behind constitutional limits on quartering soldiers in private homes, on compelling self-incriminating testimony, on conducting unlawful searches and seizures, and on abridging the freedom of speech and assembly—it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights.” To me, that is a bridge way too far. First, I believe the Third Amendment against quartering soldiers was directed less at maintaining the privacy of families in the modern sense of the term and more at preventing the severe economic and other damage (to the virginity of daughters, for example) that soldiers were all too likely to inflict on a family. Eighteenth-century soldiers weren’t exactly famous for their good behavior off the battlefield. To be sure, Justice Douglas used the Third Amendment to add a little artistic verisimilitude to his “umbras and penumbras” argument in Griswold, but that was, I believe, a “kitchen sink” gambit on his part. Second, there were any number of laws, common and statute, regarding adultery, sodomy, fornication, etc., in colonial America. Perhaps sex inside of marriage was entirely a private matter. But outside of it, it most certainly was not. Colonial New England, especially, bore little resemblance to, say, modern-day Amsterdam, as to what was regarded as nobody else’s business. Third, if “it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights,” would not one of the founders have explicitly written so? If one did, it is really hard to imagine that latter-day defenders of abortion rights would not have trumpeted the fact to the skies. The founders wrote volumes—quite literally—about a man’s home being his castle, self-incrimination, freedom of speech and assembly, etc., that are grounded in such sources as the English Bill of Rights. But so far as I know, they wrote not one word about “sex, childbirth, and women’s health” or abortion. Mr. Zeitz writes, “In 1810 the Herald of Liberty, an Augusta newspaper . . . announced the availability of ‘Dr. Rolfe’s Aromatic Female Pills,’ promising that ‘they are conducive to the health of married women, unless when pregnant, at which time they must not be taken as they would most certainly produce miscarriage.’ Rolfe’s cautionary note was not intended to protect him against legal charges, as it was not a criminal offense in Massachusetts, or anywhere else in the United States, to induce a miscarriage before quickening.” I find this fascinating and don’t know enough to flatly disagree with Mr. Zeitz’s interpretation. But—call me cynical—when I read the advertisement my first thought was that Dr. Rolfe was slyly writing one thing and meaning quite another. Abortion was not illegal, but was it socially acceptable? I doubt it. Dr. Rolfe’s ad struck me as a bit like a modern soft drink advertisement saying, “teenagers on no account should use this product, as its effects are much the same as alcohol.” And while abortion was not illegal in 1810, being pregnant and unmarried most certainly was a social calamity for a young woman in 1810. I would guess that Dr. Rolfe was not so much warning married women against the dangers of miscarriage as he was peddling his pills as being the answer to a maiden’s (and many a married woman’s) prayer.
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