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History of Reproductive Law Shows Women in Power aren't the Solution

With Roe v Wade upended, the balance of power and authority among lawmakers, medical practitioners, and pregnant and birthing people is suddenly in flux. And at the center of the storm, the safety and autonomy of those carrying (and losing) pregnancies is in jeopardy.

Historical investigations into troubled pregnancies and births, therefore, are salient and urgent.

In her new book Proving Pregnancy: Gender, Law, and Medical Knowledge in Nineteenth-Century America, Felicity Turner examines legal cases of women accused of infanticide and concealment of stillbirth, focusing on evidence from North Carolina and Connecticut. The definition of infanticide as a crime had fluctuated over the previous centuries: in medieval England, it was treated alongside late-term abortion and punished by the church courts as a lesser crime than homicide.[1] A 1624 English statute, written to address a perceived increase in children born out of wedlock and subsequently abandoned or killed, imposed the death penalty for not only infanticide of “bastards” whose live births could be attested to by witnesses, but also for the concealment of stillbirth. Women who had stillbirths alone were presumed to have committed infanticide, especially if they hid the corpse.

Puritan colonists brought this conceptualization of infanticide to the new world, and formalized it in late seventeenth-century laws. While the absolute number of cases prosecuted was small, those women who were found guilty were treated harshly and scores of women were hanged for their crimes.[2]

The mid-eighteenth century into the nineteenth century saw an easing of public attitudes, with increasing sympathy for the desperate women who found themselves pregnant out of wedlock, a situation which threatened social censure and economic ruin. Juries declined to impose the death penalty even when the facts seemed to support it.[3]

Turner’s focus, though, is not on the previously-told story of the decline of executions or the increase in public sympathy. Rather, Turner centers the book around her idea that through the early decades of the nineteenth century, knowledge about pregnant bodies was the “property” of women, but as the century progressed, that knowledge increasingly became the “property” of male doctors. Through the early nineteenth century, juries of inquest, convened to help coroners determine a cause of death, depended on the testimony of women—midwives, female relatives, and household and community matrons—to decide whether or not a woman had been pregnant and an infant had been born alive or stillborn. As courts were further formalized and law and medicine professionalized during the nineteenth century, (male) physicians increasingly served as expert witnesses in place of the women on juries of inquest, examining babies’ corpses at length using new, avowedly scientific methods. The focus of testimony shifted from the bodies of postpartum women and the gossip networks that observed a growing belly, to the bodies of deceased newborns who might or might not have been born alive.

Read entire article at Nursing Clio