Opinion: Madame Restell, and the history of abortion in America

By JONATHAN P. BAIRD

Published: 07-10-2023 6:00 AM

Jonathan P. Baird lives in Wilmot.

Last year, as we watched the U.S. Supreme Court destroy reproductive freedom for women, more attention was paid to the outcome of the Dobbs abortion case than the Court’s reasoning and justification. Justice Samuel Alito, Dobbs author, relied heavily on history in supporting his opinion.

What happened in earlier American history is contested terrain. I would submit that Justice Alito got his history very wrong. He argued that abortion was not deeply rooted in U.S. history and traditions. Alito wrote, “…an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Contrary to Alito’s assertion, in early American history, the common law did not criminalize abortion in all stages of pregnancy. As a medical procedure, abortion was widespread in colonial and 18th-century America. Abortion before “quickening” was legal and was widely accepted in practice. Quickening was the moment when women could first feel a fetus kick, typically between the fourth and sixth months of pregnancy. Back then, the common law didn’t legally acknowledge a fetus as existing separately from a pregnant woman, until quickening.

While the Court in Dobbs ignored it, the American Historical Association and the Organization of American Historians jointly filed an amicus brief that exposed how much history Alito got wrong. The historians pointed out that the decision in Roe v Wade accurately captured the historical landscape of abortion. Except for mentioning two early male legal authorities, Alito only began his discussion with the 1860s and 1870s when some states started to restrict abortion rights. In their amicus, the historians show that the effort to restrict abortion rights only had partial success and never convinced the public.

The early anti-abortion movement was spearheaded by a small group of self-interested white male physicians. Doctors then were not held in the same high esteem they are today. The doctors opposed financial competitors like midwives and healers who were “irregular” practitioners. The doctors did, however, allow until much later, an exception safeguarding the right to perform abortions for medical reasons. Alito conveniently skips over this.

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The doctors’ movement to restrict abortion was both racist and sexist. They touted their own great replacement theory arguing that white, native-born people would become out-populated by immigrants, “aliens,” Chinese and Catholics. A leader of the movement, Dr. Horatio Storer, and the early American Medical Association vigorously opposed the entry of women into the medical profession. In their amicus brief, the historians wrote that the early physicians expressed “disapproval of women shirking their maternal duties for which they were “physiologically constituted” and “destined by nature.”

The story of 19th-century abortion history is beautifully told in Jennifer Wright’s book “Madame Restell.” Probably the most famous abortionist in America during her time, Madame Restell had an enormous practice in New York City assisting women with reproductive issues. She became a very wealthy woman, offering a choice of available remedies besides having an operation. There was no shortage of controversy in her life but her popularity was unsurpassed. Women of all social classes flocked to her. Always notorious, Restell did face several criminal prosecutions along the way. Most notably and later in her life, she was pursued by an intolerable prudish busybody named Anthony Comstock.

Comstock wanted to purify the world of all sinful temptations. He was freaked out by sex and sexually explicit literature. He ran an organization, the New York State Society for the Suppression of Vice. Disgusted by pornography, he went after those he considered purveyors. He was an early-day book banner and was instrumental in passing the Comstock Act in 1873. That law made it illegal to use mail to send anything “obscene, lewd, lascivious, indecent, filthy or vile” and any device of medication meant for contraception. It also banned through the mail every article designed, adapted, or intended for producing abortion.

Posing as a friend of a woman needing help, Comstock showed up at Madame Restell’s doorstep. He then turned their meeting into an opportunity for criminal prosecution based on her willingness to help. Comstock had obtained a position as a U.S. postal special agent. Restell’s years of running ads in newspapers suggesting family limitation were over. On the eve of trial, afraid of going to prison, Madame Restell died by suicide. During his career, Comstock drove fifteen people to death by suicide. He was not at all bothered by Restell’s death and he considered it a victory. He believed his desire to control women protected the traditional family.

Interestingly, the anti-abortion movement is now trying to bring the Comstock Act back from the dead. Because of its massive unpopularity, the anti-choicers could never hope to pass abortion bans by the franchise so they have resorted to looking at old laws to see if they can be revived. With Roe v Wade overruled, they want to resurrect the Comstock Act even though that act has been a dead letter for generations.

In his April decision, Texas Federal Court Judge Matthew Kacsmaryk invalidated the Food and Drug Administration’s approval of an abortion pill, mifepristone. Mifepristone had been approved by the FDA for over 20 years. Judge Kacsmaryk relied in part on the Comstock Act. That case is now before the Supreme Court.

Around the same time, a group of evangelical ministers and New Mexico elected officials filed a lawsuit arguing that the Comstock Act overrode an abortion rights law signed by New Mexico’s governor, Michelle Lujan Grisham, that prevented local government from enacting ordinances to ban abortion in their jurisdictions.

Also, 20 Republican Attorney Generals invoked Comstock in a February letter attempting to pressure Walgreens and CVS to not distribute abortion pills. Walgreens caved on dispensing mifepristone.

While some of the Comstock Act has been rendered moot, and it appeared to be ancient history, Comstockery has returned. The corpse is walking dead and what is left is trying for a second act. The history of abortion may seem like an obscure topic but the enemies of women’s reproductive rights have been cherry-picking their history to advance a backward agenda.

From Anthony Comstock to Samuel Alito, the sexism remains the same. Just like in the 19th century, men in the 21st century are still trying to control the lives of women.

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