The history of Wisconsin’s 1849 abortion law shows us that abortion into the second trimester of pregnancy has a long legacy in the state and the nation.
Writing for the majority, Justice Alito argued that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” This is incorrect.
There were practical and philosophical reasons for the quickening doctrine. In an era before pregnancy tests, there was no way for a woman to know if she had stopped menstruating because she had conceived, because she had an irregular cycle, or because she was afflicted with a disease or illness. While abortion was not necessarily common in early America, neither was it rare. According to historian Cornelia Hughes Dayton, Puritan women in the colonial era were familiar enough with herbal emmenagogues that they used a slang term for them: “taking the trade.”
Abortion and the restoration of menses existed on a spectrum of efforts that women from the colonial era onward made to control whether and under what conditions they would bear a child. A middle-class white woman might campaign for “voluntary motherhood,” or the right to choose when to have sexual intercourse, against laws that sanctioned marital rape.
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