Legal Status and Medical Definition
Colonial America followed British common law in not regarding abortion as a crime until after “quickening,” the moment—approximately 16 to 20 weeks into a pregnancy—when the fetus can be felt to move. Prior to “quickening,” the law took no interest in what women did with respect to the fetus. Moreover, the small amount of existing case law suggests that even after “quickening” had occurred the law was only infrequently used to punish women who had procured an abortion. While colonial society may have viewed abortion as shameful and immoral—especially when made public—it tolerated the practice, which it treated as the domain of women’s concerns, so long as it occurred before “quickening.”
Acts and Laws of His Majesty's English Colony of Connecticut in New-England in America
New-London: Printed and sold by Timothy Green, 1750
Colonial society’s tacit acceptance of the practice of pre-quickening abortion may stem from the significant problems that the birth of illegitimate children posed to these societies. As this “Act concerning Bastards, and Bastardy” makes clear, courts were occasionally presented with cases involving a man who denied having fathered a child born to an unwed mother. In cases where paternity could not be established, the financial burden of providing for the maintenance of an illegitimate child fell to “the Town, or Place where such Child [was] Born.” Social tolerance of pre-quickening abortion presumably saved towns from such expenses.
Commentaries on the Laws of England
William Blackstone
Oxford: Printed at the Clarendon Press, 1770
As scholars like Cornelia Dayton have noted, an important context for understanding early American acceptance of pre-quickening abortion lies in a decline in the prosecution of fornication (i.e. pre-marital sex). While fornication had been vigorously prosecuted earlier in America, by the 1740s its enforcement had largely ceased, at least for young men. In his Commentaries on the Laws of England, William Blackstone suggests that it was an “abhorrence of the hypocrisy” of earlier times that led to the later tendency to treat “the offence of incontinence [i.e. fornication] with a great degree of tenderness and lenity.” This more relaxed attitude toward pre-marital sexual activity, however, likely led to an increase in contraceptive practices, including those involving abortifacients.
Acts and Laws of His Majesty's English Colony of Connecticut in New-England in America
New-London: Printed and sold by Timothy Green, 1750
The decision, by 1740, to effectively end prosecution of men for fornication created a sexual double standard. While men felt more licensed to engage in pre-marital sex without fear of punishment, unmarried women still had to deal with both the stigma associated with pre-marital sexual activity and the real possibility of unwed pregnancy. The latter may have led some desperate women—who either could not procure an early abortion or who discovered that the prescribed abortifacient had not succeeding in inducing miscarriage—to engage in infanticide, as this “Act for the Punishment of Murder” suggests. Notably, this act criminalized only the death of children proved to have been “Born Alive.” It made no effort to criminalize pre- or post-quickening abortion.