Abortion Law as Protection Narrative

Abstract

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

Keywords: Abortion Law, Reproductive Rights, Legal History, Protection Narrative, Dobbs