The Washington PostDemocracy Dies in Darkness

Texas’s new abortion law threatens to resurrect 19th-century French policy

As the Supreme Court considers the effective ban, it conjures up antiquated ideas about women’s morality

The Supreme Court building. (J. Scott Applewhite/AP)

Texas’s new abortion law, for which the Supreme Court has scheduled a virtually unprecedented expedited oral argument on Monday, has drawn scrutiny because of its unusual enforcement mechanism. Anyone can sue an individual who helps a pregnant person obtain an abortion after six weeks — before most people realize they are pregnant — so the state is not explicitly involved in enforcing the ban, thus supposedly shielding it from legal challenge. However, despite the claims to uniqueness, this law deals with unwanted pregnancy in precisely the same way governments have always done so: by placing the responsibility for pregnancy, childbirth and caring for the baby squarely on shoulders of potential parents, while denying them any real assistance in taking on what is often an overwhelming burden.

Consider the case of 19th-century France. The situation that pregnant single women faced was dire, as dramatized by the fate of Fantine in Victor Hugo’s “Les Misérables. Article 340 of the Napoleonic Code outlawed recherché de la paternité, or naming the father of a baby born out of wedlock, meaning that the mother could expect no financial assistance to raise the child. While acknowledging that Article 340 was harsh, lawmakers argued that this was the point: If a single woman realized no support would be forthcoming if she bore a child, she would behave “morally” and refuse to have sexual relations until she was married.

Such laws placed the consequences of extramarital sex solely on women — and that was also the point. The original justification for this law came from 18th-century philosopher Jean-Jacques Rousseau, who, as the historian Rachel G. Fuchs noted, “maintained that the ‘law of nature’ leaves men uncertain of the paternity of the children they are expected to maintain.” Therefore, he argued, men should have the right to decide which children they chose to recognize. More importantly, bourgeois men did not want to be held responsible for children they might father with women other than their wives. They objected to the idea that these children born out of wedlock might have a claim on their property, thus disrupting the legitimate family and the property rights of children born into it.

As a result, single mothers were the poorest of the poor, forced to manage on their own with few job opportunities. Those available to women, such as in domestic service and the textiles industry, paid little, and the paltry wages were consumed by the costs associated with birth and raising the child. However, because many considered single mothers depraved and disordered, it could be difficult for them to find and keep even menial work. To work full time and care for a child was impossible without family assistance; not surprisingly, many single mothers abandoned their babies at a foundling hospital, where high rates of infant mortality meant that babies faced almost certain death. Others, like Hugo’s Fantine, turned to prostitution to support themselves and pay for their children’s care.

Poverty-stricken married women also had few choices when faced with an unwanted pregnancy. The safety net for poor families was almost nonexistent until late in the century. Private organizations, such as the Society for Maternal Charity, offered minor assistance to poor married women for the first year or two after the birth of a baby in hopes that the mother would bond with her child. While such meager help might have discouraged child abandonment in some cases, poor families were still left with few places to turn for resources in the long term. French policymakers believed that generous assistance would only encourage laziness and dependence on government largesse, even if the ultimate beneficiaries were babies.

These grim circumstances made abortion the best option for many poor pregnant French women, even though those seeking an abortion risked arrest if they were discovered because the procedure was illegal. And they were not alone.

Respectable married women also tried to control their fertility in this way, sometimes getting an abortion at the direction of a husband worried about the financial burden of yet another child. By the second half of the century, French doctors claimed that abortion was a common method of family planning for couples who had no access to effective, legal birth control. And yet, their status meant that they seldom ended up in court; married women were more likely to have the resources and access to female networks that allowed them to obtain safe abortions while maintaining their privacy.

Despite this demand for abortion across class lines, the public reviled and judges harshly sentenced abortionists, or “angel makers.” In 1891, an abortion provider, Mme. Thomas, and her partner, M. Floury, were convicted of performing 120 abortions and sentenced to hard labor. Midwives often operated under a cloud of suspicion because doctors were certain that many were performing illegal abortions under the guise of caring for women who miscarried.

While juries often refused to convict poor women who sought abortions, recognizing the economic circumstances that prompted their decisions, deciding to have an abortion still meant playing the odds. That left many women choosing to suffer the consequences of unwanted pregnancy — giving birth and caring for the baby. In that case, they alone bore the physical and the financial consequences.

These dynamics changed following the Franco-Prussian War of 1870-71. The French defeat and the subsequent discovery that the country’s population growth had stagnated left policymakers worried that France was vulnerable to the newly unified German state on its border. Government officials and nationalist reformers became more concerned about the infant mortality rate and less so about the moral behavior of single women, which led to more generous state and charitable assistance to all poor mothers. Natalism among French politicians meant that birth control and abortion remained illegal, but they realized that state aid was necessary to help keep babies alive and healthy.

In 2021, however, many American state legislators more resemble French policymakers from before the 1870s. They remain fixated on stopping abortions without considering the long-term consequences for the babies whose lives they claim to save. The conservative states that make it most difficult to obtain abortions are also the least likely to provide meaningful support for someone facing pregnancy and the challenge of raising a child on their own. As one antiabortion activist notes, “There seems to be much less appetite for working on policies that support parents and families than there is for flashy headlines about dramatic bans.”

Like 19th-century French judges and juries, the Texas abortion law purports to go after the people who help a pregnant person obtain an abortion, exempting the patient from legal jeopardy. However, in reality — and by design — the law will leave the person alone to deal with the consequences.

Since S.B. 8 went into effect on Sept. 1, it has effectively halted all abortions in the state. Pregnant people not willing to give birth are forced to go out of state for reproductive care, a burden that, as always, falls disproportionately on the poor. For all the self-righteous proclamations about morality and family values, antiabortion activists show little interest in making sure that poor families have the necessities of life. As was the case in 19th-century France, the message the Texas legislature and the judges who have allowed this law to go into effect are sending to women is: If your sexual activity results in pregnancy, legal abortion will not be available, and financial assistance will be minimal. You are on your own.