[A version of this essay was published in the Cleveland Plain Dealer on January 20, 2013]
January 22, 2013 marks the fortieth anniversary of Roe v. Wade. Since the decision was announced Roe has become synonymous with deeply polarized political conflict. Justice Byron White, in his dissent in Roe, may have foreseen this. It is for this reason perhaps that White opined that the issue of abortion should be left with the people of each state and the political processes they devised to govern their affairs. There is nothing particularly untoward about such an assertion: localized communal concerns have long served as the foundation of criminal prohibitions and this has often inhered to the benefit of the many.
However, there is a danger when either provincial concerns or resistance to social change undergirds legal norms. This is the case with abortion. Abortion became, and continues to be, a battleground in the cultural wars over matters such as sex and sexuality, over continually shifting and increasingly accessible medical innovations that alter when and if a pregnancy begins or ends, and over an atmosphere of pervasive social and cultural change that threatens to permanently redefine established hierarchies. In short, Roe v. Wade, along with other aspects of reproductive rights discourse, forms a part of a broader contemporary cultural battle that could be summarized as the fight over sex, drugs and rock and roll.
Sex, drugs and rock and roll is a motto that elicits images of free sex, widespread illicit drug use and a new, outsider-created music that upended not only conventional ideals of music and musicianship but also of society. Sex, drugs and rock and roll has, however, been rehabilitated as a general notion. We have come to understand that the phrase conjures not only dystopic images of single-minded excess and anarchy but may also offer the utopian vision of a broader world of responsibly managed autonomy. The scourge of sex, drugs and rock and roll lay not only (or at all) in the actions themselves but also in the reactionary delimiting responses that fear of the actions engenders.
In discussing the history of abortion the Roe Court noted that abortion laws were a relatively recent development in the United States. Both church and state had either been silent on or offered little sanction for abortion over much of Anglo-American religious and legal history. The Court cited what has been called the first United States law to explicitly bar abortion, an 1821 Connecticut statute. This is a particularly useful example of how efforts to contain the cultural confluence summarized in the expression sex, drugs and rock and roll became the source of abortion law. According to some, the Connecticut statute was adopted in almost direct response to an alleged sexual scandal that took place in Connecticut in 1818 involving a minister named Ammi Rogers who was accused of impregnating a young woman to whom he was not married and then giving her an abortion-inducing substance.
Rogers was a charismatic figure who had a substantial following and who was said to have been especially popular among women. Though ordained in New York, he was barred from the ministry in Connecticut. Rogers was accused of impregnating Asenath Smith, a young single woman. Rogers, in response to the claims against him, alleged that Smith had given false testimony as part of a political and religious plot to discredit him. Roger’s claim merited at least some attention given that Smith and some other witnesses were said to have later recanted much of their testimony. Rogers was by all accounts a thorn in the side of the powerful Episcopalian establishment. Though he had been officially barred from the ministry in Connecticut, he persisted in preaching and representing himself as a clergyman, and his popularity showed no signs of abating even in the face of his official religious unwelcome. Rogers was a rock and roll minister of his times.
Despite his protests of innocence, Rogers was convicted of sexually assaulting Smith and was jailed for two years. Though the most lurid aspects of the testimony against Rogers alleged that he had forced Smith to consume a poisonous substance to induce miscarriage, there was no clear proof that Smith had been pregnant or that she had miscarried. Moreover, even if Rogers had given Smith some substance that caused miscarriage, were no laws at the time that explicitly forbade such conduct. Acting from outrage over Rogers’ relatively mild censure and the difficulties of prosecuting him, the Connecticut legislature enacted the now oft-cited 1821 law on abortion. The statute criminalized the actions of those who provided “deadly poison” or “noxious substances” to cause a pregnant woman’s post-quickening miscarriage and hence targeted the precise means alleged in Rogers’ case.
In the decades subsequent to Rogers’ case, legal barriers to abortion grew. These laws were often framed as public health or moral imperatives. In many cases, however, the laws seemed to be responses to the way that growing numbers of people could exercise sexual autonomy via access to and knowledge of abortion services, thereby controlling their own lives and potentially imposing changes in the fabric of larger culture. In short, it was fear of sex, drugs and rock and roll that often fueled legal limits on abortion.
-Lolita Buckner Inniss
cross-post from Ain’t I a Feminist Legal Scholar, Too?
