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1792 case shows Founders’ thinking on abortion

Supreme Court Justice Samuel Alito, in writing the Dobbs decision overturning Roe v. Wade, basing the action in part on a claim that abortion in the United States was always considered a criminal act. Alito’s claim is wrong for many reasons, including ignoring the fact that common law viewed “quickening,” usually at 16 to 22 weeks gestation, as the point where abortion became criminal.

A column by Sarah Hougen Poggi and Cynthia A. Kierner in the Washington Post (July 19) about a sensational case in 1792 sheds further light on how the Founders actually viewed abortion. 

“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,” they report.

Martha Jefferson Randolph, the daughter of Thomas Jefferson, visited her unwed cousin and sister-in-law, Nancy Randolph, age 18, in September 1792. She lived with her sister Judith and Judith’s husband, Richard Randolph. Finding Nancy unwell and appearing pregnant, Martha recommended gum of guiaiacum, an herb to treat “menstrual obstruction” (a euphemism for pregnancy) and later sent her the herb, telling her it could “produce an abortion.”

Two weeks later, following an evening after which Nancy cried out and her bedclothes were bloodied, a white fetus was found on the woodpile. Thomas Jefferson wrote a letter to Martha expressing sympathy: “I see guilt but in one person, and not in her.”

Richard Randolph publicly claimed to be innocent of impregnating his sister-in-law, but was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same.” In April 1793, he went before a tribunal of county judges, and was defended by Patrick Henry and John Marshall, among others. Martha Randolph’s testimony was recorded, stating that Nancy was pregnant and she had given her an herb to abort. The tribunal released Richard. Significantly, Nancy and Martha (her accomplice) were never charged with any crime.

Poggi, an ob-gyn, and Kierner, a historian, write: 

“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.”

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