Like the new Alabama statute, which would sentence abortion providers to up to 99 years in prison, the landmark Connecticut law passed in 1821 sought to punish people who provided women with abortion-inducing medicines.
It was a “direct response” to the sex scandal involving Ammi Rogers and Asenath Smith, says law professor Lolita Buckner Inniss, who has studied the case extensively for an upcoming review in the UCLA Women’s Law Journal.
Rogers was an Episcopal preacher who had been controversial since his days at Yale in the 1790s. According to his memoir, religious leaders didn’t like him because he supported separation of church and state. And despite being banned from ministry in his home state of Connecticut, he had a loyal following.
“Just like there are ministers now in the contemporary world who have this huge popular following, and they dress well, and people, especially women, love them,” Inniss told The Washington Post. “That’s who Ammi Rogers was.”
And Rogers loved those women right back, getting involved with young female congregants throughout his career. Around 1817, when Rogers was approaching 50, he turned his attention toward Asenath Smith, the granddaughter of a dying woman to whose bedside he was called.
Although prosecutors later depicted her as a teenager, census records indicate she was about 21 when her sexual relationship with Rogers began. Smith and the other women in her family were also “independent, intelligent, bright, probably pretty well-educated, fairly autonomous,” Inniss said. “Certainly people had been whispering about the Smith household before this even happened.”
At the time, “a huge number” of brides in New England were already pregnant when they married, Inniss said, and it was “fairly typical” for parents and grandparents to ignore premarital sex if nuptials were expected, as was the case with Smith and Rogers.
But then he reneged.
According to trial transcripts, when the young woman became pregnant, Rogers told her they couldn’t marry unless she terminated her pregnancy. A baby born less than nine months after a marriage might be ignored in most cases, but for a man of his renown (and reputation), it wouldn’t go unnoticed.
First, he procured medicine for her that was supposed to induce abortion. It didn’t work. She continued to feel the fetus’s movements — known then as “quickening” — which generally starts in the fourth or fifth month of pregnancy.
Next, he acquired a “tool” to induce a mechanical abortion. Despite causing bleeding, that didn’t appear to work either. So he fled.
Soon afterward, Smith’s family called a physician. She complained of intense pain and subsequently delivered a stillborn child. The doctor later testified that he could not say for certain the attempted abortions caused the stillbirth.
Rogers was investigated, arrested and put on trial in 1820, an uncommon occurrence at a time when most sexual crimes weren’t prosecuted unless it led to a homicide or some other extreme outcome.
“Rogers was such a huge social iconoclast that, as far as I can tell, that’s why they were prosecuting his case,” Inniss said.
But there was a problem: Nothing he had done was technically illegal. There was no “seduction” law in the state; and although abortion after quickening was against “hazy” common law, there was no actual statute banning it. Abortion before quickening was not considered a crime. According to historian James C. Mohr in “Abortion in America,” most domestic guides described methods to eliminate “obstructed menses” — a euphemism for early pregnancy.
The first trial collapsed when Rogers, still promising Smith marriage, essentially abducted her and her sister so they couldn’t testify. Months later, at a second trial, the sisters refused to testify. But their prior statements to local authorities were used as evidence. Additionally, an enslaved man named Sam Wheeler testified he had seen the couple having sex.
Rogers was convicted of sexual assault and sentenced to two years in prison. It was a relatively light punishment; he could have been sentenced to life. He spent the rest of his days proclaiming his innocence, writing and revising at least six memoirs in which he claimed that all those visits to the Smith household were purely ministerial and that Smith had actually become pregnant by a doctor.
Connecticut authorities didn’t waste any time in clamping down. In 1821, the General Assembly passed a bill banning medicinal abortion after quickening, with those who provided the medicine — not the pregnant woman — facing prosecution. Within 20 years, 10 of 26 states followed suit with similar laws.
Mohr, the historian, notes that many abortion-inducing substances could also cause the death of the mother in larger quantities, so the law “might best be characterized as a poison-control measure.”
Mechanical abortion was noticeably absent from the ban. Inniss said the disparity is probably due to who was performing the different methods of abortion. Mechanical abortions were mostly done by the fledgling medical establishment, which was white and male, “whereas many medicinal abortions were done by grannies and midwives, many of them immigrants and formerly enslaved women, or even enslaved women,” she said.
Smith wasn’t there to witness any of that. Rogers said she fled the country; Inniss believes she may have gone to Canada. She disappeared from the record.
The controversy over laws triggered by her pregnancy has not.
Read more Retropolis: