Quote:
Originally posted by Bad_Rich_Chic
Well, what old rules? Abortion was actually fairly common and generally unregulated through the end of the 19th century, and a heck of a lot of the restrictive laws overturned by Roe were themselves reactions against the change of sexual mores rather than long-standing laws caught out by a sudden technological change.
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I didn't mean to imply abortion wasn't common, but rather than regulation of abortion wasn't common.
Here's the best I can figure out and I'm summarizing an old paper I wrote (which mostly focused on the early 20th century) so I can't give you much support right now. Around the revolution, abortion was the domain of herbalists and midwives, and was relatively uncommon because of the premium given to young marriage and large families. I believe there is virtually no concept of regulating abortion at this point in history (when the consistution was written); while a few years earlier, you occassionally burned a mid-wife as a witch to regulate abortion, birth control, and childbirth out of wedlock, that's gone out of style by the time of the American Revolution. Abortion at the time is hit or miss - the herbs may work or they may not, but the mother is unlikely to die.
Around 1830, you see family sizes shrink and abortion rise, and this is the trend through the 19th century. Abortion is highly ineffective, but at some point in the 19th century surgeons and pharmacists begin doing what was very rare in the 18th century - surgical abortions. These are highly dangerous and women die. There is some discussion at the time about regulating abortion, but most of the discussion focuses instead on the perceived root of the problem, which is loose women. (And, if someone dies in an abortion, it's covered up as casting a stain on the entire family and community involved). So instead there are laws passed coming down hard on prostitution and other crimes against chastity. More enlighted places look to regulate prostitution instead, creating red light districts.
Prohibitions and constrains on abortion and birth control only become common around the time of the development of widespread effective birth control around WWI (along with a number of other developments like the development of the professional modern medical establishment). This is also about the time sex comes out of the victorian closet. My paper focused on the change in thinking that accompanied the shift from thinking of birth control and abortion in the same breath as prostitution to thinking about birth control and abortion in the same breath as doctors, lawyers, and military men engaged in social engineering. My general thesis was that the anti-Victorians were in many ways more Victorian than the Victorians.
Of course, I lost interest there, so I can't really even guess at what happened between 1930 and Roe v. Wade.
So, as to strict constructionism, I suspect that the members of the first Congress have had that blank kind of "Say What" stare if you suggested to them regulating abortion. And there is a strict constructionist/original intent reading that says the 9th Amendment is there to protect us from laws that would have met a blank stare in the first congress.
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