\u201cCan it be said that the right to abortion is deeply rooted<\/p>\n
in the history and traditions of the American people?\u201d<\/p>\n
Corpus linguistic evidence suggests the answer is \u201cNo.\u201d<\/em><\/p>\n <\/p>\n Stephanie Nicole Miller, J.D. (December 2022)<\/p>\n Mary Kay Bacallao, Ed. D, J.D.[1]<\/a><\/p>\n <\/p>\n During oral argument in Dobbs v. Jackson Women\u2019s Health<\/em>[2]<\/a> on December 1, 2021, Justice Samuel Alito asked this question of Julie Rikelman, counsel for Jackson Women\u2019s Health: \u201c[C]an it be said that the right to abortion is deeply rooted in the history and traditions of the American people?\u201d[3]<\/a> He received this answer: \u201cYes, it can, Your Honor. [A]t the founding, women were able to end their pregnancy under the common law . . . . [A]t the time of the founding and well into the 1800s, women had the ability to end a pregnancy.\u201d[4]<\/a> A similar historical claim was made in response to a question from Chief Justice Roberts by the U.S. Solicitor General, Elizabeth Prelogar: \u201cat the time of the founding and for most of early American history, women had an ability to access abortion in the early stages of pregnancy.\u201d[5]<\/a><\/p>\n In her answer to Justice Alito, Rikelman specifically referenced an amicus<\/em> brief filed by the American Historical Association (AHA) and the Organization of American Historians (\u201cAHA Brief\u201d).[6]<\/a> The AHA Brief claims: \u201cAs we understand now better than ever before, American history and tradition regarding abortion under the common law undergirds Roe v. Wade<\/em>\u2019s holding that women have a constitutional right to decide for themselves whether to choose to terminate a pregnancy\u201d[7]<\/a> because \u201cunder the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move.\u201d[8]<\/a> The AHA Brief infers this right of a woman from the principle stated in a number of treatises and court cases from the 18th<\/sup> and 19th<\/sup> centuries that \u201cat common law no indictment will lie for attempts to procure abortion with the consent of the mother until she is quick with child,\u201d quoting a mid-19th<\/sup> century case, Commonwealth v. Parker<\/em>.[9]<\/a> However, the AHA Brief goes beyond evidence from legal treatises and court cases to say, \u201cample historical evidence demonstrates that Americans knew of and followed the common law, which allowed extensive decision-making by a pregnant woman.\u201d[10]<\/a> The AHA Brief further states: \u201cAs contemporaneous sources demonstrate, ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy.\u201d[11]<\/a><\/p>\n Did Americans in the Founding Era express in writing the view that American women \u201chad a right to abortion\u201d? Our empirical research using the methods of corpus linguistics[12]<\/a> not only failed to find any such writing but further produced persuasive evidence that Founding Era Americans would not have written of \u201ca right to abortion\u201d because at that time \u201cabortion\u201d had not developed today\u2019s meaning of a woman\u2019s voluntary choice to end pregnancy but instead was generally used in the same way we use \u201cmiscarriage\u201d today, to refer to an involuntary termination of pregnancy.<\/p>\n For our research we used the Corpus of Founding Era American English (COFEA)\u2014a digitized, online database that covers the time period starting with the reign of King George III, and ending with the death of George Washington (1760\u20131799). COFEA contains documents written and read by ordinary people of the day, including letters, diaries, newspapers, non-fiction books, fiction, sermons, public papers of seven major figures of the Founding Era,[13]<\/a> and legal materials. COFEA primarily obtains these texts from seven sources: the National Archive Founders Online; the HeinOnline legal database; Evans Early American Imprints; Farrand’s Records of the Constitutional Convention; Elliot\u2019s Debates (state convention debates on ratification); Harvard\u2019s Caselaw Access Project;[14]<\/a> and the U.S. Statutes-at-Large from the first five Congresses.[15]<\/a> The entire COFEA database currently houses 126,393 texts from the Founding Era totaling 136,915,894 words.[16]<\/a><\/p>\n COFEA allows users to search for all versions of a given word by placing an asterisk after the root term. Entering \u201cabortion*\u201d in the \u201cquery box\u201d produces an initial search result of 131 uses of \u201cabortion\u201d and 28 uses of \u201cabortions\u201d for a total of 159 \u201chits.\u201d[17]<\/a> (Henceforth we will italicize abortion<\/em> to indicate both the singular and plural forms.)<\/p>\n III. THE FINDINGS<\/p>\n Our review of these 135 occurrences of abortion<\/em> revealed that 98 clearly referred to the termination of a woman\u2019s pregnancy; the other 37 usages appeared to use the word metaphorically, generally to refer to a misshapen or monstrous living thing or to an unfortunate occurrence. [23]<\/sup><\/a> Of the 98 usages referring to pregnancy, 85 of the uses were in the context of involuntary termination of pregnancy,[24]<\/a> using abortion<\/em> as the word \u201cmiscarriage\u201d would be used today, as illustrated by the following examples:<\/p>\n \u201c[T]he situation of my wife was very alarming. She gave every symptom of a painful and dangerous abortion being at hand. It is now a fortnight since she was first confined to her room, and every appearance grows more and more critical. It is almost certain, that the f\u0153tus, now about six months old, is dead. Altho\u2019 I know your readiness to sympathize with me, I should not have troubled you with this detail, were it not for a wish, that the outlines of it should be conveyed to the ears of the president.\u201d[25]<\/a><\/p>\n \u201cAbortion (to prevent). Use daily a Decoction of Lignunm Gualacum.\u201d[26]<\/a><\/p>\n \u201cOn my return to Sheffield . . . I found a number of the inhabitants . . . afflicted with a fever . . . The number affected with the fever, in all other parts of town, did not, I believe exceed thirty. Of these, three died: one an aged woman: the other two, pregnant women; of whom one died in the fever, the other suffered an abortion, and died some months after, dropsical.\u201d[27]<\/sup><\/a><\/p>\n We noticed that some sources appeared repeatedly in our research results. Sorting the spreadsheet by the \u201cText ID\u201d provided by COFEA enabled us to determine that 19 different sources appeared at least twice.[28]<\/a> Ten of these sources were medical texts. In a number of the medical texts, variations of the word \u201cmiscarriage\u201d (hereinafter miscarriage<\/em> will refer to all such variations) appeared in the same contexts as abortion<\/em>. Generally, the context indicated that miscarriage<\/em> and abortion<\/em> were being used interchangeably to refer to the same event. For example:<\/p>\n \u201cSome sanguine robust Women are very liable to miscarry at a certain Time, or Stage, of their Pregnancy. This may be obviated, by their bleeding some Days before that time approaches. . . . But this Method would avail very little for delicate Citizens, who miscarry from a very different Cause; and whose Abortions are to be prevented by a very different treatment.\u201d[29]<\/a><\/p>\n \u201cWhere the abortion is owing to habit . . . Opium is always useful, and I have seen instances, where by the use of it women retained children, of which they would otherwise have miscarried.\u201d[30]<\/a><\/p>\n By far the most recurrent source was Hamilton\u2019s Outlines of the Theory and Practice of Midwifery<\/em>, producing 19 different occurrences of abortion<\/em>.[31]<\/a> Hamilton provided a very precise definition of abortion: \u201cThe premature delivery of the foetus; which comprehends every period before the evolution of its system be sufficiently complete to enable the child to exist after the connection with the parent is dissolved.\u201d[32]<\/a><\/p>\n Although Hamilton himself used abortion<\/em> to refer generally to termination of pregnancy, he noted: \u201cSome authors still make the following distinction. When the ovum is expelled in the early months, they call it an abortion; and, if the foetus be delivered at any period between the fifth month and the full time, a miscarriage.\u201d[33]<\/a> We did not find this distinction between abortion<\/em> and miscarriage<\/em> anywhere else in our results. For example, when Edmund Randolph\u2014at the time U.S. Attorney General\u2014wrote to James Madison that his wife was giving \u201cevery symptom of a painful and dangerous abortion\u201d he mentioned that \u201cit is almost certain that the foetus [is] now about six months old.\u201d[34]<\/a><\/p>\n In Dr. John Elliot\u2019s \u201cMedical Pocketbook,\u201d[35]<\/a> arranged \u201cinto alphabetical order,\u201d the first entry is:<\/p>\n ABORTION<\/strong>:<\/p>\n SYMPTOMS. Pain in the back, loins, and lower part of the belly \u2026 Most commonly happens between the second and fourth months of pregnancy, though it may occur later. It may be occasioned by frights, falls, strong emetics or cathartics, or by any violent commotion of body or mind.<\/p>\n TREATMENT. . . . the patient should be kept very still and quiet in bed. If, nevertheless, abortion follow . . . give . . . medicines . . . as after child-birth.<\/p>\n When the reader gets to \u201cM\u201d in the Medical Pocketbook, the following simple entry appears:<\/p>\n MISCARRIAGE. <\/strong>See Abortion.<\/p>\n We did find \u201chits\u201d in COFEA written by ten different authors (totaling twelve examples) in which the use of abortion<\/em> showed awareness by the writer that a woman might voluntarily choose to terminate pregnancy.[36]<\/a> (The two writers who each provided two such uses of abortion<\/em> were Thomas Jefferson and John Adams.) We did not, however, interpret these examples as indicating that the word abortion<\/em>, standing by itself, had two different meanings in the Founding Era: (1) involuntary termination of pregnancy or (2) voluntary termination of pregnancy. Rather, we observed in these twelve examples that the concept of voluntary termination of pregnancy\u2014modern day \u201cabortion\u201d\u2014was communicated by combining abortion<\/em> with a verb indicating human agency. For example, nine of the eleven authors used the phrase \u201cprocure abortion\u201d to indicate that pregnancy was not terminated by medical misfortune but caused by human choice.[37]<\/a><\/p>\n To explore whether there was a larger pattern in 18th<\/sup> century English, beyond what we discovered in COFEA, of using the phrase procure abortion<\/em> to refer to voluntary termination of pregnancy, we used a second data base that overlaps the period covered by COFEA: The BYU-Corpus of Early Modern English (hereinafter \u201cCOEME\u201d). COEME allowed us to search back to 1700 (COFEA begins with 1760) and to search texts from Great Britain as well as America.[38]<\/a>\u00a0 We searched for uses of \u201cprocure abortion<\/em>\u201d by searching for \u201cabort*\u201d within six words of \u201cprocure*\u201d:<\/p>\n After eliminating duplicate hits and examples that also appeared in our COFEA search, we found a total of 27 hits in COEME using the phrase procure abortion<\/em>.[39]<\/a> All of these hits indeed referred to voluntary termination of pregnancy.<\/p>\n COFEA has a feature that allows a search for words which appear within a defined proximity of a target term by using the \u201cCollocates\u201d function. Using this feature to search for the words \u201cright\u201d or \u201cprivilege\u201d within six words to the right or left of <\/span>abortion<\/em> produced no occurrences. (The same result was returned searching for collocates of <\/span>miscarriage<\/em>.) Upon a cross-check for the top 100 collocates of <\/span>abortion<\/em> using the \u201cCollocates\u201d view in COFEA,<\/span>[40]<\/a> neither right nor privilege appeared\u2014nor did variations of those words.\u00a0 Having found evidence that, unlike the word <\/span>abortion<\/em> by itself, the phrase <\/span>procure abortion <\/em>was used with some frequency in the 18<\/span>th<\/sup> century to indicate that pregnancy had been voluntarily terminated, we did the same collocation testing of that phrase. The following screen shot shows that \u201cright*\u201d is not a collocate of <\/span>procure<\/em> abortion<\/em>:<\/span><\/p>\n We also found no examples in which procure<\/em> abortion<\/em> was a collocate of \u201cprivilege.\u201d<\/p>\n Then we selected the \u201cCollocates\u201d view in COFEA to find the words that appear with statistically significant frequency with procure<\/em> abortion<\/em>:[41]<\/a><\/p>\n None of the collocates were \u201cright\u201d or \u201cprivilege\u201d or variations of those words.<\/span>[42]<\/a><\/p>\n Looking in depth at each of the twelve examples referring to voluntary termination of pregnancy from COFEA we concluded that none would support a claim that \u201ca right of abortion\u201d was understood in the Founding Era as \u201cdeeply rooted in the history and traditions of the American people.\u201d Nine of these twelve usages referred to social practices of other cultures:<\/p>\n The tenth use appears in a novel by Mary Wollstonecraft, an English writer considered a pioneer of feminism,[51]<\/a> in which the narrator, a servant raped by her master, finds herself pregnant and describes \u201cprocuring abortion\u201d in terms of suicide: \u201crage giving place to despair, [I] sought for the potion that was to procure abortion, and swallowed it with a wish that it might destroy me, at the same time that it stopped the sensations of new-born life.\u201d[52]<\/a><\/p>\n Dr. William Cullen, a Professor of Medicine at the University of Edinburgh in Scotland, in the eleventh example, referred to \u201cunprescribed\u201d use by women of \u201cfossile oils\u201d and mentioned that he has known of cases when women have taken them \u201cto procure abortion,\u201d but that even in very large doses doing so is not effective and only \u201cdisturb[s] the system.\u201d[53]<\/a><\/p>\n The twelfth use appears in a manual for the use of justices of the peace, which says that if a woman takes \u201cany potion to make an abortion\u201d that would \u201cbe a great crime.\u201d[54]<\/a><\/p>\n Our empirical research indicates that abortion<\/em> was overwhelmingly used in the Founding Era to describe a medical misfortune to be prevented if possible.\u00a0 We found only 12 examples in which abortion<\/em> was used in reference to voluntary termination of pregnancy\u2014most frequently as the phrase procure abortion<\/em>.\u00a0 We searched for evidence that procure abortion<\/em> was used in contexts indicating that this practice was a right or privilege, and we found no such evidence. Finally, close examination of each of the twelve examples referring to voluntary termination of pregnancy led us to the conclusion that none of those texts would support a claim that \u201ca right of abortion\u201d was understood in the Founding Era as \u201cdeeply rooted in the history and traditions of the American people.\u201d<\/p>\n <\/p>\n [1]<\/a> Both authors completed a course on linguistic analysis of legal texts<\/a> at the Georgia State University College of Law<\/a> taught by Professor Clark D. Cunningham<\/a>. As part of that course, Mary Kay Bacallao wrote a paper on whether the original meaning of \u201cperson\u201d in the 14th<\/sup> amendment could have included an unborn human being and Stephanie Nicole Miller wrote about how the meaning of \u201cright of privacy\u201d developed and changed in 19th<\/sup> and 20th<\/sup> century American discourse. (These papers can be obtained by contacting the authors:\u00a0 MaryKayBacallao@hotmail.com<\/a> and Stephanie@babykinzbooks.com<\/a>.) Subsequently prompted by Justice Alito\u2019s question at the Dobbs<\/em> oral argument, they undertook independent research under Professor Cunningham\u2019s supervision on the original public meaning of abortion in the Founding Era on which this essay is based.<\/p>\n [2]<\/a> Transcript of Oral Argument, Dobbs v. Jackson Women\u2019s Health Organization<\/p>\n 141 S. Ct. 2619 (2021) (No. 19-1392), available at <\/em>https:\/\/www.supremecourt.gov\/oral_arguments\/argument_transcripts\/2021\/19-1392_4425.pdf<\/a>.<\/p>\n [3]<\/a> Id.<\/em> at 75 (cleaned up).<\/p>\n [4]<\/a> Id.<\/em> at 75\u201376.<\/p>\n [5]<\/a> Id.<\/em> at 102\u201303.<\/p>\n [6]<\/a> Id<\/em>. at 76 (\u201cThere’s also a brief on behalf of several key American historian associations that goes through that history in detail\u201d) (referencing Brief for American Historical Association and Organization of American Historians as Amicus Curiae Supporting of Respondents, Dobbs v. Jackson Women\u2019s Health Organization 141 S. Ct. 2619 (2021) (No. 19-1392), 2021 WL 4341742 at 4 [hereinafter \u201cAHA Brief\u201d].<\/p>\n [7]<\/a> \u00a0AHA Brief at 4.<\/p>\n [8]<\/a> Id<\/em>. at 7.<\/p>\n [9]<\/a> Id. <\/em>(quoting 50 Mass. 263, 265\u201366 (1845)). \u201cNineteenth century sources used \u2018quick\u2019 and \u2018quickening\u2019 consistently to mean the woman\u2019s perception of fetal movement.\u201d Id.<\/em> at 6 n.2.<\/p>\n [10]<\/a> Id.<\/em> at 14.<\/p>\n [11]<\/a> Id<\/em>. at 20.<\/p>\n [12]<\/a> See <\/em>Clark D. Cunningham & Jesse Egbert, Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution<\/em>, 36 GA. St. U.\u00a0 L.\u00a0 Rev, 465, 473\u201375 (2020) (describing how corpus linguistic research meets scientific standards of generalizability, reliability, and validity), available at<\/em> https:\/\/readingroom.law.gsu.edu\/gsulr\/vol36\/iss5\/6<\/a> and also published on the Social Science Research Network at:\u00a0<\/strong>https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3460735.<\/a>https:\/\/ssrn.com\/abstract=3460735<\/a>. See also<\/em> William N. Eskridge Jr., Brian G. Slocum, & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning<\/em>, 119 Mich. L. Rev. 1503, 1509 (2021) (corpus linguistics has potential to help judges make better, empirically based judgments about how words are used, both today and historically).<\/p>\n [13]<\/a> These \u201cfounders\u201d are George Washington, Benjamin Franklin, John Adams, Thomas Jefferson, Alexander Hamilton, John Jay, and James Madison. \u201cAbout Founders Online,\u201d https:\/\/founders.archives.gov\/about<\/a>.<\/p>\n [14]<\/a> The Caselaw Access Project includes all official, book-published state and federal United States case law; the earliest case is from 1658. https:\/\/case.law\/about\/<\/a><\/p>\n [15]<\/a>\u00a0 Corpus of Founding Era American English: About the Corpus (<\/em>BYU Law), https:\/\/lawcorpus.byu.edu\/cofea;showCorpusInfo=true\/concordances<\/a>.<\/p>\n [16]<\/a> Id.<\/em><\/a> Corpus linguistic methods should meet the scientific standard of reliability: a different researcher applying the same methods should duplicate the same outcome, note 12, supra<\/em>. After free registration using a Google-based identification (e.g. Gmail address), anyone can access the COFEA data base online at: https:\/\/lawcorpus.byu.edu\/cofea\/concordances<\/a>. In this essay we provide exact details of how we used COFEA\u2019s online tools and provide our resulting data analyses in an online Appendix<\/a> so readers can evaluate our results against the readers\u2019 own use of COFEA.<\/p>\n [17]<\/a> Our COFEA search found no texts using \u201cabortionist.\u201d<\/p>\n [18]<\/a> Cunningham & Egbert, supra<\/em> note 12, at 474.<\/p>\n [19]<\/a> The search did not find any uses of abortion<\/em> in Farrand\u2019s Records, Elliot\u2019s Debates, or the early Statutes at Large.<\/p>\n [20]<\/a> This spreadsheet appears as \u201cAbortion-COFEA-OriginalResults<\/a>\u201d in the online Appendix<\/a>, http:\/\/www.clarkcunningham.org\/L2\/Miller-Bacallao.html<\/a><\/p>\n [21]<\/a> The Appendix<\/a> contains a spreadsheet titled \u201cAbortion-17May2022-ByNumber<\/a>\u201d assigning a specific number to each unduplicated use that is retained in future analyses for reference<\/p>\n [22]<\/a> See<\/em> text accompanying note 49, infra<\/em>.<\/p>\n [23]<\/a> This comment in a letter by George Washington combined both metaphoric uses of abortion<\/em>: \u201cThe resolutions which were published for consideration, vesting Congress with powers to regulate the Commerce of the Union, have I hope been acceded to. If the States individually were to attempt this, an abortion, or a many headed monster<\/u> would be the issue.\u201d \u201cFrom George Washington to David Stuart, 30 November 1785,\u201d Founders Online, <\/em>National Archives, https:\/\/founders.archives.gov\/documents\/Washington\/04-03-02-0359<\/a> (emphasis added). [Original source: The Papers of George Washington<\/em>, Confederation Series, vol. 3, 19 May 1785\u200a\u2013\u200a31 March 1786<\/em>, ed. W. W. Abbot. Charlottesville: University Press of Virginia, 1994, pp. 423\u2013424.]<\/p>\n [24]<\/a> For one example, example 54 (line 99) in \u201cAbortion-17May2022-ByNumber<\/a>,\u201d we were uncertain whether the termination was voluntary or involuntary.<\/p>\n [25]<\/a> To James Madison from Edmund Randolph, 15 March 1790<\/em>, Founders Online, National Archives, https:\/\/founders.archives.gov\/documents\/Madison\/01-13-02-0076<\/a> . [Original source: The Papers of James Madison, vol. 13, 20 January 1790\u200a\u2013\u200a31 March 1791, ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University Press of Virginia, 1981, pp. 107\u2013108.]<\/p>\n\n
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![\"\"](\"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/05\/IMG-1-300x103.png\")
\nThe majority of these initial search results, 123, came from a component of the COFEA database downloaded from Evans Early American Imprints Online, which contains over 3,000 books, pamphlets, and other written materials published in America between 1760 and 1799.<\/span>[18]<\/a> Twenty hits came from Founders Online. Thirteen were found in Hein Online, which represents primarily legal texts. Three hits came from the Caselaw Access Project.<\/span>[19]<\/a> We exported these results to an Excel spreadsheet, including 100 words to the left and right of each use of<\/span> abortion<\/em>.<\/span>[20]<\/a><\/p>\n![\"\"](\"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/05\/IMG-2-300x139.png\")
\nWe then manually reviewed each set of 201 words to analyze the context of usage. This review revealed that some search results represented the same text found in different sources; for example, a letter from John Adams to Thomas Jefferson might appear in both the Adams papers and the Jefferson papers. After removing these duplicates, we were left with 134 uses of abortion<\/em>,[21]<\/sup><\/a> \u00a0to which we added one more example excluded from the initial search because \u201cabortion\u201d appeared in the text as \u201cabor-tion.\u201d[22]<\/a><\/p>\n![\"\"](\"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/05\/IMG-3-300x108.png\")
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