"A 1792 case reveals that key Founders saw abortion as a private matter
Thomas Jefferson, John Marshall and Patrick Henry didn’t advocate for prosecution of a woman who probably had an abortion
Perspective by Sarah Hougen Poggi and Cynthia A. Kierner
July 19, 2022 at 6:00 a.m. EDT
Abortion rights activists demonstrate in support of women's rights on July 16, 2022, in Santa Monica, California. (Ringo Chiu / AFP) (Ringo Chiu/AFP via Getty Images)
A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”
Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.
In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” or the moment the pregnant person first felt fetal movement — a highly subjective milestone that usually occurred around 16 to 22 weeks of gestation. Yet even after quickening, few people were prosecuted for abortion, let alone convicted — Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: In the early republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.
In fact, contrary to Alito’s assertions in Dobbs, three Founders from Virginia — Thomas Jefferson, Patrick Henry and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion was discovered.
In 1792, 18-year-old unwed Nancy Randolph was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, aptly named “Bizarre.”
In September, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, visited and found Nancy unwell and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On her return home, she sent Nancy the herb, which she warned could “produce an abortion.”
Two weeks later, Richard, Judith and Nancy visited the home of their cousins, Randolph and Mary Randolph Harrison. Nancy appeared ill and retired early to bed, awakening with a scream in the middle of the night. The next morning, Nancy’s bedclothes were bloody. Randolph Harrison saw blood on the stairs and noted “[Nancy’s] considerable paleness and a disagreeable odor.”
When an enslaved man found what appeared to be a White fetus on a woodpile, rumors spread through the community of enslaved people to Whites of all classes quickly, reaching Philadelphia, where Jefferson expressed sympathy for Nancy in a letter to daughter Martha, declaring: “I see guilt but in one person, and not in her.” Jefferson’s response was typical of that era, a time when upper class White women like Nancy were viewed as morally pure and sexually chaste by nature.
Many among the general public believed that Richard impregnated his sister-in-law — which was incest under Virginia law — and that he also murdered a living infant. His honor and life were at risk. Richard vehemently asserted his innocence in a newspaper. His public statement had little effect, and, facing mounting pressure, he surrendered to the county sheriff. Richard was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same.”
Medically, five pieces of evidence suggest that what happened was not murder of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortifacient. Second, witnesses reported her enlarged abdomen, though not a full-term pregnancy. Third, Nancy’s brief cries were more consistent with latent labor than active labor. In latent labor, the cervix dilates to four-to-six centimeters, sufficient for passage of a one-to-two-pound fetus. Uncomfortable but not unbearable, and sometimes lasting days, latent labor in the second trimester ends abruptly with the expulsion of the fetus. (At full term, hours of painful active labor follow to achieve 10-centimeter dilation and pushing efforts.)
Fourth, no one reported a baby’s cry, suggesting pre-viability outside the womb. Finally, Nancy later delivered a son at term, indicating she had no risk factors for second-trimester miscarriage such as uterine or cervical anomalies. Altogether, the evidence supports the conclusion that Nancy ingested herbs to induce a second-trimester abortion and that her effort was successful.
In April 1793, Richard appeared before a tribunal of county judges who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled a good team: Henry, a charismatic litigator and former governor famous for his “Give me liberty or give me death” speech; Marshall, a rising star and the future U.S. Supreme Court chief justice; and William Campbell, the U.S. attorney for Virginia.
The circumstantial obstetric evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrisons’ home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and that she delivered the herb, noting that the gum of guaiacum was “designed” for producing an abortion. But he did not describe this as a crime.
No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening. If it was post-quickening, the state could have prosecuted Nancy and Martha. Instead Henry skillfully undermined the credibility of the prosecution’s witnesses, and Marshall successfully took the untenable position that there was never a pregnancy and, thus, Richard could not be guilty of murder.
While the release of Richard — a wealthy White man with great lawyers — was not surprising, what was remarkable and relevant to today’s debates is that evidence of an intended abortion was discovered in an unwed, unpropertied woman and not fully investigated or acted upon. Nancy would later admit she had been pregnant, yet neither she nor her accomplice were ever charged.
Abortion was later criminalized in Virginia and across other states in the 19th century. But these laws reflected the development of modern gynecology more than a change in morality. The curette, introduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow for passage of a curette, which removes tissue from the uterus. Abortion transformed from a private, female matter to the purview of male medical professionals, who excluded other providers by influencing lawmakers.
Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (1973), that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”
Though Marshall’s notes on Commonwealth v. Randolph are extensive, this episode is poorly documented in the county court records, and, thus, no formal case law was generated. Regardless, the episode begs examination as it involved key Founders who occupied vastly different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshall believed in a strong national government. Jefferson mostly supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy went on to marry Gouverneur Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.
If anything, the saga demonstrates that the concept of abortion as a private matter was “deeply rooted” in the minds of our nation’s Founders. As Americans consider their next move on the abortion issue at the state level, they should be mindful of the precedents followed by these early giants of our republic."Many of us were arrested this fall , some week after week, for incommoding the Park Service in front of the White House where we were fighting to end the filibuster for the Freedom to Vote: John R Lewis Voting Rights bills (now combined into H.R. 5746. "
Thank you for sharing. A very interesting story, and no surprise that alito used a result oriented view of history to reach his predetermined conclusion
It is a travesty that a member of SCOTUS can issue such an incompetent decision based upon one cherry-picked case and his own religious beliefs and yet STILL wear a robe. That robe, however, does not guarantee him the respect of anyone, regardless of his tax-payer funded lifetime appointment to a "throne." Kudos to those peaceful protestors. I hope they keep it up.
thank you and your wife for sharing your experience with COVID. It would really be good if others would review and hopefully benefit as well.
For Garland's actions, I also hope that you are wrong - I do think he is very careful and thoughtful in how e proceeds and this is a very important step regardless of how he proceeds for the country.
Since the Respect for Marriage Act passed the House with Republican support [47 is a pretty substantial number especially in this Congress] I would think that Schumer and company would proceed quickly before too many repubs in Senate would get together and develop their opposition after hearing from so many of their constituents who would oppose anything like this bill. Once again the Dems seem to be doing their best to enable the opposition. I just don't get them. Make them vote!
As for the Secret Service, I just don't get them either - they must think every one is stupid altho I guess after serving the previous guy who always seemed to get away with that kind of nonsense they figure they can too.
One commentator said it appears the Secret Service feels it will have less consequences from deleting relevant text messages than from allowing the January 6th Committee to see them. While it is incredibly disappointing and deeply saddening to see a once admired institution turned into another puddle of orange slime after four years of manipulation by one evil and mentally ill Republican president, it does make sense that those texts must have been very incriminating for the Secret Service to take the amazing road of initial lies, denial and embarrassingly flimsy excuses. Wow. Just Wow.
I'm afraid that the Jan 5/6 deletion of emails and the lack of back-up tells me that that is one governmental agency still populated with Trump seditionists and is a prime candidate for house cleaning. Someone gave the deletion order. Some others did their very best to comply that order and have had apparent success. I don't want those people in our government protecting the Bidens or running any investigations. They've besmirched the agency and need to be prosecuted. There is someone specifically responsible and a bunch of enablers.
In writing last night's newsletter, I reviewed the federal records act of 1950 and various regulations surrounding the obligation to maintain federal records. I'm not an expert in federal record keeping, but it seems to me that there can be no innocent explanation for the deletion of the texts. The Secret Service was under an obligation to have a program in place to capture all relevant records relating to its operations, which clearly includes its actions on January 6th. I certainly hope there is a criminal investigation underway at this moment
And the Secret Service's much vaunted "impartiality" has been damaged. Do we really trust this bunch to protect Biden and Harris and was perhaps complicit in endangering Pence? Not me.
And again, we return to Garland who should be the person to order the investigation. At this point, I think the integrity of the entire federal government is tattered and stained beyond repair in the minds of most Americans. The extraordinary depth and breadth of damage that has been done by the Republican Party and its associates is not going to be easily rectified or cleaned-up. I'm not a historian but it's hard to imagine that the country has been in more dire straits.
Presumably Garland has an inkling of the level of corruption in the vast right-wing cabal. I don't know how he sleeps at night knowing the future of the United States of America rests in his hands. Personally, t don't think there is any chance Garland is up to the task given his reluctance to indict key players. His hesitancy to enforce subpoenas of key witnesses to testify before the Jan 6 committee is indefensible.
I've thought all day about this, and I believe Tribe is wrong. In fact, if memory serves, he is among the first ones to express disappointment in Garland and he surmised it was because of his judicial temperament. He's a former judge and what is needed more than ever is smart and aggressive prosecutor to lead the Department of Justice. Tribe's interview was maybe on MSNBC, and it was quite a while ago. My apologies if my memory is incorrect.
Republicans are into this up to their eyeballs and they have no plausible way to back out of this and preserve any credibility, so they are going to object and obstruct to any investigation into THEIR wrongdoings. That's a given that Democrats should acknowledge and move forward accordingly. Time is running out and Biden should act now to appoint an acting Attorney General and make it clear the reason why that is necessary.
Irrefutable facts and evidence will win the day and it matters naught whether the Attorney General is acting or confirmed - Tribes makes a specious argument which, frankly, has no merit within the context of today's extreme partisan politics. Trump routinely appointed acting administrators, so Republicans have no room to complain, not that it won't stop them from doing so.
There is too much at stake and the longer these traitors run free spouting lies and fabricating an alternate reality, the more damage they do and the greater the peril for the country. There is an overriding mandate to each and every decision - deliver justice and preserve democracy Now when we still can. It is a fool's errand to think that this will be resolved at the ballot box. It hasn't in the past; why would anything be different going forward?
Being skeptical is a good thing, whether or not Lawrence Tribe is correct—as he seems to be with his point about a replacement for Garland. Moreover, disagreement is good for democracy, provided it does not bleed into sedition. I don’t read Robert because he is right. I read Robert because he makes me think and gives me hope. “Each day is Valentine’s Day.”
I agree that we should all be skeptical and not accept at face value the views of others. I also agree that I pay attention to Tribe and Hubbell and several others because they give me reason to think and analyze a given position. Sometimes my convictions based on years of analyses preclude me to accept a different perspective. In the end, I always try to reach my own conclusions. It is frustrating to see so many people who lack critical thinking skills rely on the opinion of others. To me, what's the point of living in a free country if we don't accept the opportunity and responsibility to make up our own mind about things?
I do so admire those state Representatives who protested and were arrested in front of the Court. Such acts help me steel up my own backbone for such action.
Alas, my Representative from Georgia, on the other hand, will likely be indicted as a false elector and their part in the coup. Fanni Willis is a much appreciated cool breeze in our otherwise dank and smelly political environment here.
Robert, please give some thought to leaving the topic of Merrick Garland. We are all concerned about the rule of law. Think about your original purpose for writing Today’s Edition, maintaining perspective and offering good information that gives your daughters and readers resources to take constructive actions has always been a hallmark of your efforts. We need both and will find no agency in further second guessing what the DOJ is or will do. Please keep writing to inspire your readers to stay engaged in this most urgent moment in our country’s history. In so doing you continue to make an important contribution to all.
As I said in my correspondence with professor Tribe, I believe my views reflect those of tens of millions of Americans who have had their faith in the rule of law undermined by the inaction of Merrick Garland. You can tell me that I'm wrong for believing that or that my feelings are unjustified, but those are my feelings. The newsletter provides a service when I articulate the outrage felt by others in the face of these seeming impunity of Trump before the law. More to the point, he's going to attempt a second coup if Merrick Garland doesn't stop him. I think there's a place for pointing that out.
To quote Judge Michael Luttig stated “They, Trump’s Allie’s, are a clear and present danger because they are telling us openly that if they lose in 2024 they will attempt to overturn the election in the same way they tried to do so in 2020.” Robert, there is no quibble here. I, like the ten million you reference, am angry, anxious, and outraged. Make no mistake about it.
And here, we see on Monday July 18, 2022 exactly how they (the Republican Party) has embraced violence in their rhetoric and campaign ads.
We voters must recognize the moment as urgent and turn our outrage into actions that empower us regardless of the time line of the DOJ. It might be observed the Kenneth Starr investigated Clinton for 4 years to no avail. We cannot wait. Each of us must do whatever we can to prevent the current extremists of the Republican Party and the egocentric former president from executing their plans.
Thank you, I agree John. I cannot surmise the AG's "observed inactions" as being a dereliction of duty, because I do not have a full understanding of where a person stands in his position in assuring a successful prosecution. In that light, I have appreciated Robert's insights that have brought me to thinking more broadly about this vitally important issue.
Donald Trump is on tape attempting to interfere in the election of Georgia and is on tape attempting to extort the president of Ukraine. Evidence at a criminal trial almost never gets any better than that. Of course, there was always a possibility of failing to achieve unanimity in a jury, but if that were the standard for deciding whether to prosecute no one would ever be criminally charged.
Robert, I share your frustration over the lack of decisive action by the DOJ. It has been 18 months! But upon reflection, I see many other crimes come to court after what appears to be much too long. We have been trained by the elements of modern life to expect immediate gratification. So while my emotions are with you, I also respect Professor Tribe's thoughts. Would firing Garland move things faster or derail something critical that is about to happen?
While I find it distressing that the House Select Committee seems to be doing the job of the DOJ, they are doing amazing investigative work. If I were running the DOJ, I might want to see everything the HSC discovers and reveals. Thursday's hearing is the last scheduled. And the HSC report is due for release on September 6. What better time to drop the truth bomb of charging TFG and multiple White House officials than October? Keep in mind, the average American has the attention span of a goldfish.
One member of the J6 committee said on MSNBC that things were just heating up, or words to that effect. Given this latest bombshell about the SS and others who have come forward lately to speak under oath to the committee, it is possible that that "final report" might not be ready in September after all! The longer this committee works and the more dirt it uncovers, might we hope that when November finally arrives, the GOP candidates will be neck deep in a mess of their own making?
Thank you for the new thoughts on Garland. Before turning to my Garland performance review, let me say while I share your frustration with the AG (and DOJ), I think the succession problem (confirmation) Larry Tribe identifies is decisive. MG simply cannot be fired.
On the performance question I think we have to acknowledge we are all speculators — some (you and Mr. Berg high on the list) much better than others. My own concern is how MG is managing the impending political and public relations issue — which will be massive — that will eventuate if Trump declares for 2024 before he is indicted. I do not see MG flinching as Mueller did — if the facts and law require indictment — but it will completely dominate (overwhelm?) our national political dialogue for the duration. The prosecution will be in for the wildest of rides. And maybe the work of the J6 committee will have helped to set a somewhat hospitable stage for all that but I really doubt such a consideration can be a fundamental factor in the DOJ’s work and strategy.
Hope may never be a strategy, but it seems to me that’s all we observers have got on this situation.
Indicting a former president for attempting a coup will be a very difficult path for the country. Not indicting him will be worse-- indeed, it essentially begs him to try again.
Thanks for the mention and for proving a very valuable component of what it would mean to fire Garland. I never thought about the consequences and the harm it would do to the process with or the. guarantee of a better solution.
Thank you for your daily diary. We live surrounded by so much noise, you present the noise as a James Taylor tune for me.
I am a 73 year old divorced (from a lawyer) white female born in California.
I have two daughters (one a lawyer) and a grandson, age 3, who has had his first COVID immunization.
We live in a society where being male, white, having a gun, and being able to control women and your other slaves of color is all you need. Oh my we are living in 1776.
I live surrounded by the white men who wrote the constitution for the benefit of white men.
I live surrounded by the white men who fear women, lgbtq+ individuals, and everyone who has a different skin color.
I live surrounded by the white men who ignore climate change and will be responsible for the extinction of the human race.
I live surrounded by the white men who “can’t breathe” so they won’t wear a mask (interferes with their personal freedom” ) but think a 10 year old should carry a pregnancy 40 weeks - the result of a rape and that they should control my uterus.
I live surrounded by men white men who think more of money and power than ethics, morality, honesty, and compassion.
I have learned that white male lawyers have no better morals, ethics, honesty, and compassion than the homeless man living with a grocery cart on a downtown street, usually less.
I have learned that white male retired military officers are criminals and should be charged with treason.
I believe strongly Garland is a white man who is protecting white men- with money- and the reputation of the doj rather than my rights as an American. If he indicts 45 I will take this comment back.
45 is a criminal and should be indicted as should Flynn, Clark, Giuliani, McCarthy, Brooks, Biggs, Perry, and Jordan for starters.
Ummmm white men.
Oh and Clarence Thomas is an embarrassment to the world, not white, but is in bed with a seditionist/insurrectionists and no one cares. I do.
Yes there are women in this country who fall into the above description but if they were not supported by white men I think they would crawl back under their rocks.
For those of you who think I might be crazy:
I am not in danger of hurting myself, I am not having a mental breakdown, I am a grandma who sees reality and finds the white male part of it disgusting.
If you feel these comments should be deleted go ahead. It won’t hurt my feelings.
Hi, Polly. I think your note expresses the outrage felt by many Americans in this difficult moment. There is much truth in your description of the way that white men manage politics and society to ensure their continued places of privilege and control. In many ways, the history of America has been the journey to move beyond an aristocratic republic in which white landed gentry controlled the nation. That day is coming and is long overdue. Do not despair!
Chuck Schumer embodies the Yeats line that “The best lack all conviction, while the worst are full of passionate intensity.” While the GOP is filled with intense passion in undermining democracy and the rule of law, Schumer has never expressed with any similar urgency or passion the need to take decisive action to counteract the Republican onslaught. He is Exhibit A in what’s wrong with Democrats.
The inability of Chuck Schumer to recognize the importance of the Respect for Marriage Act suggests that he is out of touch. He was also initially slow to take up the recent gun safety legislation but changed course in the face of withering criticism.
Although I know name-calling is a childish mannerism, I wonder if Joe Mancin shouldn't be called a DINO (Democrat in Name Only). How the man sleeps at night (albeit on his lovely yacht in Washington) is beyond those of us with a conscience.
With no training or education i fully agree with Prof. Tribe, if Garland can't be trusted neither can any "political hack". Pres. Biden is doing a great job and the pollsters are wrong as they were with Hillary. Let's stick by this seasoned leader. Hoping he can give a hand up to all candidates who request his endorsement.
Merrick Garland's sealed lips are an indication of ....nothing. He could, and certainly should, be taking the matter of January 6, 2021, all its preliminary events and communiques, and its aftermath, deadly seriously. What he is willing to share with the public, either officially or through "leaks", is unfortunately up to him alone-to a point. That tipping point would be the moment of indictment. Professor Tribe is spot on, in his assessment. In 1974, no one knew that Treasury Secretary John Connally was under investigation, until the prosecutor announced his indictment. He was ultimately found innocent of wrongdoing, but the process was the same as it was with Vice President Spiro Agnew, who WOULD have been found guilty, had he not pleaded nolo contendre.
I am one of those who has, thus far, dodged COVID. I am wearing a mask, prudently, when in a crowded indoor environment, and have maintained a robust immune system. I will be masked today, when meeting someone who got over the disease a week ago. Too many people are getting COVID, from this umpteenth wave of sub-sub-variant, for anyone to slack off. I live alone, but I am not without family and friends who care about me, so playing the "tired of the pandemic " card is not something I will entertain. Glad that you are feeling better.
Did you see the Washington Post article:
"A 1792 case reveals that key Founders saw abortion as a private matter
Thomas Jefferson, John Marshall and Patrick Henry didn’t advocate for prosecution of a woman who probably had an abortion
Perspective by Sarah Hougen Poggi and Cynthia A. Kierner
July 19, 2022 at 6:00 a.m. EDT
Abortion rights activists demonstrate in support of women's rights on July 16, 2022, in Santa Monica, California. (Ringo Chiu / AFP) (Ringo Chiu/AFP via Getty Images)
A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”
Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.
In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” or the moment the pregnant person first felt fetal movement — a highly subjective milestone that usually occurred around 16 to 22 weeks of gestation. Yet even after quickening, few people were prosecuted for abortion, let alone convicted — Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: In the early republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.
In fact, contrary to Alito’s assertions in Dobbs, three Founders from Virginia — Thomas Jefferson, Patrick Henry and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion was discovered.
In 1792, 18-year-old unwed Nancy Randolph was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, aptly named “Bizarre.”
In September, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, visited and found Nancy unwell and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On her return home, she sent Nancy the herb, which she warned could “produce an abortion.”
Two weeks later, Richard, Judith and Nancy visited the home of their cousins, Randolph and Mary Randolph Harrison. Nancy appeared ill and retired early to bed, awakening with a scream in the middle of the night. The next morning, Nancy’s bedclothes were bloody. Randolph Harrison saw blood on the stairs and noted “[Nancy’s] considerable paleness and a disagreeable odor.”
When an enslaved man found what appeared to be a White fetus on a woodpile, rumors spread through the community of enslaved people to Whites of all classes quickly, reaching Philadelphia, where Jefferson expressed sympathy for Nancy in a letter to daughter Martha, declaring: “I see guilt but in one person, and not in her.” Jefferson’s response was typical of that era, a time when upper class White women like Nancy were viewed as morally pure and sexually chaste by nature.
Many among the general public believed that Richard impregnated his sister-in-law — which was incest under Virginia law — and that he also murdered a living infant. His honor and life were at risk. Richard vehemently asserted his innocence in a newspaper. His public statement had little effect, and, facing mounting pressure, he surrendered to the county sheriff. Richard was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same.”
Medically, five pieces of evidence suggest that what happened was not murder of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortifacient. Second, witnesses reported her enlarged abdomen, though not a full-term pregnancy. Third, Nancy’s brief cries were more consistent with latent labor than active labor. In latent labor, the cervix dilates to four-to-six centimeters, sufficient for passage of a one-to-two-pound fetus. Uncomfortable but not unbearable, and sometimes lasting days, latent labor in the second trimester ends abruptly with the expulsion of the fetus. (At full term, hours of painful active labor follow to achieve 10-centimeter dilation and pushing efforts.)
Fourth, no one reported a baby’s cry, suggesting pre-viability outside the womb. Finally, Nancy later delivered a son at term, indicating she had no risk factors for second-trimester miscarriage such as uterine or cervical anomalies. Altogether, the evidence supports the conclusion that Nancy ingested herbs to induce a second-trimester abortion and that her effort was successful.
In April 1793, Richard appeared before a tribunal of county judges who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled a good team: Henry, a charismatic litigator and former governor famous for his “Give me liberty or give me death” speech; Marshall, a rising star and the future U.S. Supreme Court chief justice; and William Campbell, the U.S. attorney for Virginia.
The circumstantial obstetric evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrisons’ home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and that she delivered the herb, noting that the gum of guaiacum was “designed” for producing an abortion. But he did not describe this as a crime.
No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening. If it was post-quickening, the state could have prosecuted Nancy and Martha. Instead Henry skillfully undermined the credibility of the prosecution’s witnesses, and Marshall successfully took the untenable position that there was never a pregnancy and, thus, Richard could not be guilty of murder.
While the release of Richard — a wealthy White man with great lawyers — was not surprising, what was remarkable and relevant to today’s debates is that evidence of an intended abortion was discovered in an unwed, unpropertied woman and not fully investigated or acted upon. Nancy would later admit she had been pregnant, yet neither she nor her accomplice were ever charged.
Abortion was later criminalized in Virginia and across other states in the 19th century. But these laws reflected the development of modern gynecology more than a change in morality. The curette, introduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow for passage of a curette, which removes tissue from the uterus. Abortion transformed from a private, female matter to the purview of male medical professionals, who excluded other providers by influencing lawmakers.
Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (1973), that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”
Though Marshall’s notes on Commonwealth v. Randolph are extensive, this episode is poorly documented in the county court records, and, thus, no formal case law was generated. Regardless, the episode begs examination as it involved key Founders who occupied vastly different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshall believed in a strong national government. Jefferson mostly supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy went on to marry Gouverneur Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.
If anything, the saga demonstrates that the concept of abortion as a private matter was “deeply rooted” in the minds of our nation’s Founders. As Americans consider their next move on the abortion issue at the state level, they should be mindful of the precedents followed by these early giants of our republic."Many of us were arrested this fall , some week after week, for incommoding the Park Service in front of the White House where we were fighting to end the filibuster for the Freedom to Vote: John R Lewis Voting Rights bills (now combined into H.R. 5746. "
Thank you for sharing. A very interesting story, and no surprise that alito used a result oriented view of history to reach his predetermined conclusion
https://www.washingtonpost.com/made-by-history/2022/07/19/1792-case-reveals-that-key-founders-saw-abortion-private-matter/
It is a travesty that a member of SCOTUS can issue such an incompetent decision based upon one cherry-picked case and his own religious beliefs and yet STILL wear a robe. That robe, however, does not guarantee him the respect of anyone, regardless of his tax-payer funded lifetime appointment to a "throne." Kudos to those peaceful protestors. I hope they keep it up.
thank you and your wife for sharing your experience with COVID. It would really be good if others would review and hopefully benefit as well.
For Garland's actions, I also hope that you are wrong - I do think he is very careful and thoughtful in how e proceeds and this is a very important step regardless of how he proceeds for the country.
Since the Respect for Marriage Act passed the House with Republican support [47 is a pretty substantial number especially in this Congress] I would think that Schumer and company would proceed quickly before too many repubs in Senate would get together and develop their opposition after hearing from so many of their constituents who would oppose anything like this bill. Once again the Dems seem to be doing their best to enable the opposition. I just don't get them. Make them vote!
As for the Secret Service, I just don't get them either - they must think every one is stupid altho I guess after serving the previous guy who always seemed to get away with that kind of nonsense they figure they can too.
One commentator said it appears the Secret Service feels it will have less consequences from deleting relevant text messages than from allowing the January 6th Committee to see them. While it is incredibly disappointing and deeply saddening to see a once admired institution turned into another puddle of orange slime after four years of manipulation by one evil and mentally ill Republican president, it does make sense that those texts must have been very incriminating for the Secret Service to take the amazing road of initial lies, denial and embarrassingly flimsy excuses. Wow. Just Wow.
I find it very interesting when on 1/6 the Secret Service wanted to transport Pence to "safety" that he declined and chose to stay where he was!!
I have to confess I thought he was just being brave--clearly getting desperate for heroes.
I'm afraid that the Jan 5/6 deletion of emails and the lack of back-up tells me that that is one governmental agency still populated with Trump seditionists and is a prime candidate for house cleaning. Someone gave the deletion order. Some others did their very best to comply that order and have had apparent success. I don't want those people in our government protecting the Bidens or running any investigations. They've besmirched the agency and need to be prosecuted. There is someone specifically responsible and a bunch of enablers.
In writing last night's newsletter, I reviewed the federal records act of 1950 and various regulations surrounding the obligation to maintain federal records. I'm not an expert in federal record keeping, but it seems to me that there can be no innocent explanation for the deletion of the texts. The Secret Service was under an obligation to have a program in place to capture all relevant records relating to its operations, which clearly includes its actions on January 6th. I certainly hope there is a criminal investigation underway at this moment
And the Secret Service's much vaunted "impartiality" has been damaged. Do we really trust this bunch to protect Biden and Harris and was perhaps complicit in endangering Pence? Not me.
And again, we return to Garland who should be the person to order the investigation. At this point, I think the integrity of the entire federal government is tattered and stained beyond repair in the minds of most Americans. The extraordinary depth and breadth of damage that has been done by the Republican Party and its associates is not going to be easily rectified or cleaned-up. I'm not a historian but it's hard to imagine that the country has been in more dire straits.
Presumably Garland has an inkling of the level of corruption in the vast right-wing cabal. I don't know how he sleeps at night knowing the future of the United States of America rests in his hands. Personally, t don't think there is any chance Garland is up to the task given his reluctance to indict key players. His hesitancy to enforce subpoenas of key witnesses to testify before the Jan 6 committee is indefensible.
I've thought all day about this, and I believe Tribe is wrong. In fact, if memory serves, he is among the first ones to express disappointment in Garland and he surmised it was because of his judicial temperament. He's a former judge and what is needed more than ever is smart and aggressive prosecutor to lead the Department of Justice. Tribe's interview was maybe on MSNBC, and it was quite a while ago. My apologies if my memory is incorrect.
Republicans are into this up to their eyeballs and they have no plausible way to back out of this and preserve any credibility, so they are going to object and obstruct to any investigation into THEIR wrongdoings. That's a given that Democrats should acknowledge and move forward accordingly. Time is running out and Biden should act now to appoint an acting Attorney General and make it clear the reason why that is necessary.
Irrefutable facts and evidence will win the day and it matters naught whether the Attorney General is acting or confirmed - Tribes makes a specious argument which, frankly, has no merit within the context of today's extreme partisan politics. Trump routinely appointed acting administrators, so Republicans have no room to complain, not that it won't stop them from doing so.
There is too much at stake and the longer these traitors run free spouting lies and fabricating an alternate reality, the more damage they do and the greater the peril for the country. There is an overriding mandate to each and every decision - deliver justice and preserve democracy Now when we still can. It is a fool's errand to think that this will be resolved at the ballot box. It hasn't in the past; why would anything be different going forward?
But are there no moral Republicans who can't stand the MAGA culture of hero worship and corruption? American First IMHO being just window dressing.
Being skeptical is a good thing, whether or not Lawrence Tribe is correct—as he seems to be with his point about a replacement for Garland. Moreover, disagreement is good for democracy, provided it does not bleed into sedition. I don’t read Robert because he is right. I read Robert because he makes me think and gives me hope. “Each day is Valentine’s Day.”
I agree that we should all be skeptical and not accept at face value the views of others. I also agree that I pay attention to Tribe and Hubbell and several others because they give me reason to think and analyze a given position. Sometimes my convictions based on years of analyses preclude me to accept a different perspective. In the end, I always try to reach my own conclusions. It is frustrating to see so many people who lack critical thinking skills rely on the opinion of others. To me, what's the point of living in a free country if we don't accept the opportunity and responsibility to make up our own mind about things?
I do so admire those state Representatives who protested and were arrested in front of the Court. Such acts help me steel up my own backbone for such action.
Alas, my Representative from Georgia, on the other hand, will likely be indicted as a false elector and their part in the coup. Fanni Willis is a much appreciated cool breeze in our otherwise dank and smelly political environment here.
Robert, please give some thought to leaving the topic of Merrick Garland. We are all concerned about the rule of law. Think about your original purpose for writing Today’s Edition, maintaining perspective and offering good information that gives your daughters and readers resources to take constructive actions has always been a hallmark of your efforts. We need both and will find no agency in further second guessing what the DOJ is or will do. Please keep writing to inspire your readers to stay engaged in this most urgent moment in our country’s history. In so doing you continue to make an important contribution to all.
As I said in my correspondence with professor Tribe, I believe my views reflect those of tens of millions of Americans who have had their faith in the rule of law undermined by the inaction of Merrick Garland. You can tell me that I'm wrong for believing that or that my feelings are unjustified, but those are my feelings. The newsletter provides a service when I articulate the outrage felt by others in the face of these seeming impunity of Trump before the law. More to the point, he's going to attempt a second coup if Merrick Garland doesn't stop him. I think there's a place for pointing that out.
To quote Judge Michael Luttig stated “They, Trump’s Allie’s, are a clear and present danger because they are telling us openly that if they lose in 2024 they will attempt to overturn the election in the same way they tried to do so in 2020.” Robert, there is no quibble here. I, like the ten million you reference, am angry, anxious, and outraged. Make no mistake about it.
And here, we see on Monday July 18, 2022 exactly how they (the Republican Party) has embraced violence in their rhetoric and campaign ads.
https://www.gpb.org/television/show/pbs-newshour/season/2022/july-18-2022-pbs-newshour-full-episode/extras/how-some-gop
We voters must recognize the moment as urgent and turn our outrage into actions that empower us regardless of the time line of the DOJ. It might be observed the Kenneth Starr investigated Clinton for 4 years to no avail. We cannot wait. Each of us must do whatever we can to prevent the current extremists of the Republican Party and the egocentric former president from executing their plans.
Thank you, I agree John. I cannot surmise the AG's "observed inactions" as being a dereliction of duty, because I do not have a full understanding of where a person stands in his position in assuring a successful prosecution. In that light, I have appreciated Robert's insights that have brought me to thinking more broadly about this vitally important issue.
Donald Trump is on tape attempting to interfere in the election of Georgia and is on tape attempting to extort the president of Ukraine. Evidence at a criminal trial almost never gets any better than that. Of course, there was always a possibility of failing to achieve unanimity in a jury, but if that were the standard for deciding whether to prosecute no one would ever be criminally charged.
Robert, I share your frustration over the lack of decisive action by the DOJ. It has been 18 months! But upon reflection, I see many other crimes come to court after what appears to be much too long. We have been trained by the elements of modern life to expect immediate gratification. So while my emotions are with you, I also respect Professor Tribe's thoughts. Would firing Garland move things faster or derail something critical that is about to happen?
While I find it distressing that the House Select Committee seems to be doing the job of the DOJ, they are doing amazing investigative work. If I were running the DOJ, I might want to see everything the HSC discovers and reveals. Thursday's hearing is the last scheduled. And the HSC report is due for release on September 6. What better time to drop the truth bomb of charging TFG and multiple White House officials than October? Keep in mind, the average American has the attention span of a goldfish.
One member of the J6 committee said on MSNBC that things were just heating up, or words to that effect. Given this latest bombshell about the SS and others who have come forward lately to speak under oath to the committee, it is possible that that "final report" might not be ready in September after all! The longer this committee works and the more dirt it uncovers, might we hope that when November finally arrives, the GOP candidates will be neck deep in a mess of their own making?
Robert —
Thank you for the new thoughts on Garland. Before turning to my Garland performance review, let me say while I share your frustration with the AG (and DOJ), I think the succession problem (confirmation) Larry Tribe identifies is decisive. MG simply cannot be fired.
On the performance question I think we have to acknowledge we are all speculators — some (you and Mr. Berg high on the list) much better than others. My own concern is how MG is managing the impending political and public relations issue — which will be massive — that will eventuate if Trump declares for 2024 before he is indicted. I do not see MG flinching as Mueller did — if the facts and law require indictment — but it will completely dominate (overwhelm?) our national political dialogue for the duration. The prosecution will be in for the wildest of rides. And maybe the work of the J6 committee will have helped to set a somewhat hospitable stage for all that but I really doubt such a consideration can be a fundamental factor in the DOJ’s work and strategy.
Hope may never be a strategy, but it seems to me that’s all we observers have got on this situation.
Indicting a former president for attempting a coup will be a very difficult path for the country. Not indicting him will be worse-- indeed, it essentially begs him to try again.
Thanks for the mention and for proving a very valuable component of what it would mean to fire Garland. I never thought about the consequences and the harm it would do to the process with or the. guarantee of a better solution.
Thank you for your daily diary. We live surrounded by so much noise, you present the noise as a James Taylor tune for me.
I am a 73 year old divorced (from a lawyer) white female born in California.
I have two daughters (one a lawyer) and a grandson, age 3, who has had his first COVID immunization.
We live in a society where being male, white, having a gun, and being able to control women and your other slaves of color is all you need. Oh my we are living in 1776.
I live surrounded by the white men who wrote the constitution for the benefit of white men.
I live surrounded by the white men who fear women, lgbtq+ individuals, and everyone who has a different skin color.
I live surrounded by the white men who ignore climate change and will be responsible for the extinction of the human race.
I live surrounded by the white men who “can’t breathe” so they won’t wear a mask (interferes with their personal freedom” ) but think a 10 year old should carry a pregnancy 40 weeks - the result of a rape and that they should control my uterus.
I live surrounded by men white men who think more of money and power than ethics, morality, honesty, and compassion.
I have learned that white male lawyers have no better morals, ethics, honesty, and compassion than the homeless man living with a grocery cart on a downtown street, usually less.
I have learned that white male retired military officers are criminals and should be charged with treason.
I believe strongly Garland is a white man who is protecting white men- with money- and the reputation of the doj rather than my rights as an American. If he indicts 45 I will take this comment back.
45 is a criminal and should be indicted as should Flynn, Clark, Giuliani, McCarthy, Brooks, Biggs, Perry, and Jordan for starters.
Ummmm white men.
Oh and Clarence Thomas is an embarrassment to the world, not white, but is in bed with a seditionist/insurrectionists and no one cares. I do.
Yes there are women in this country who fall into the above description but if they were not supported by white men I think they would crawl back under their rocks.
For those of you who think I might be crazy:
I am not in danger of hurting myself, I am not having a mental breakdown, I am a grandma who sees reality and finds the white male part of it disgusting.
If you feel these comments should be deleted go ahead. It won’t hurt my feelings.
Hi, Polly. I think your note expresses the outrage felt by many Americans in this difficult moment. There is much truth in your description of the way that white men manage politics and society to ensure their continued places of privilege and control. In many ways, the history of America has been the journey to move beyond an aristocratic republic in which white landed gentry controlled the nation. That day is coming and is long overdue. Do not despair!
Chuck Schumer embodies the Yeats line that “The best lack all conviction, while the worst are full of passionate intensity.” While the GOP is filled with intense passion in undermining democracy and the rule of law, Schumer has never expressed with any similar urgency or passion the need to take decisive action to counteract the Republican onslaught. He is Exhibit A in what’s wrong with Democrats.
The inability of Chuck Schumer to recognize the importance of the Respect for Marriage Act suggests that he is out of touch. He was also initially slow to take up the recent gun safety legislation but changed course in the face of withering criticism.
Although I know name-calling is a childish mannerism, I wonder if Joe Mancin shouldn't be called a DINO (Democrat in Name Only). How the man sleeps at night (albeit on his lovely yacht in Washington) is beyond those of us with a conscience.
With no training or education i fully agree with Prof. Tribe, if Garland can't be trusted neither can any "political hack". Pres. Biden is doing a great job and the pollsters are wrong as they were with Hillary. Let's stick by this seasoned leader. Hoping he can give a hand up to all candidates who request his endorsement.
Your newsletter is always a great gem to read each morning. Well thought out. Thank you.
Thank you for taking the time to do the Covid Catch-Up with Robert & Jill and for inspiring us all to be more thoughtful and proactive.
Merrick Garland's sealed lips are an indication of ....nothing. He could, and certainly should, be taking the matter of January 6, 2021, all its preliminary events and communiques, and its aftermath, deadly seriously. What he is willing to share with the public, either officially or through "leaks", is unfortunately up to him alone-to a point. That tipping point would be the moment of indictment. Professor Tribe is spot on, in his assessment. In 1974, no one knew that Treasury Secretary John Connally was under investigation, until the prosecutor announced his indictment. He was ultimately found innocent of wrongdoing, but the process was the same as it was with Vice President Spiro Agnew, who WOULD have been found guilty, had he not pleaded nolo contendre.
I am one of those who has, thus far, dodged COVID. I am wearing a mask, prudently, when in a crowded indoor environment, and have maintained a robust immune system. I will be masked today, when meeting someone who got over the disease a week ago. Too many people are getting COVID, from this umpteenth wave of sub-sub-variant, for anyone to slack off. I live alone, but I am not without family and friends who care about me, so playing the "tired of the pandemic " card is not something I will entertain. Glad that you are feeling better.