Misappropriating Women's History in the Law and Politics of Abortion

“Without known exception, the early American feminists condemned abortion in the strongest possible terms.” This claim about women’s history has been used by pro-life advocates for twenty years to control the political narrative of abortion. Conservatives, led by the group Feminists for Life, have used feminist icons from history to support their anti-abortion advocacy. Federal anti-abortion legislation has been named after feminist heroines, like the Elizabeth Cady Stanton Pregnancy and Parenting Students Act (co-sponsored by Rick Santorum) and the Susan B. Anthony and Frederick Douglass Act of 2011. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation and political forums popularize the notion. This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates.The need to create a history of anti-abortion feminists seems important today because abortion has come to be equated with women’s rights. The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The appeal to feminist history by pro-life advocates offers a counter narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. The lack of popular knowledge about the lives and ideologies of these women leaders contributes to the ease and utility of co-opting their images for political purposes.This Article tests the veracity of the political and legal claims of a feminist history against abortion by focusing on Elizabeth Cady Stanton, “the brilliant chief philosopher and leader” of the nineteenth-century women’s rights movement. Stanton has quite literally been the poster child for FFL’s historical campaign against abortion, appearing on posters, flyers, and commemorative coffee mugs. This research offers a detailed account of Stanton’s views related to abortion based on original historical research into the archives of Stanton’s papers. Like other works of legal history, it is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context. The evidence shows that Stanton did not talk about abortion per se. She did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women. Instead Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law. Stanton thus makes an unlikely spokesperson for the modern anti-abortion movement committed to opposite ends.