“Deeply Rooted in the Nation’s History and Tradition”:Nativism, Sexism, and Criminalization in 19th and 21st Century America
Jessica Suess is a undergraduate majoring in American Studies and History with a minor in Women and Gender Studies. She is particularly interested in feminist movements and the experiences of working class women in the United States. This paper was written for AMS 311S: Prison Art, Literature, and Protest.
“Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.… By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy.” - Samuel Alito, Dobbs v Jackson Women’s Health
In Dobbs v Jackson Women’s Health, a majority consisting solely of the Supreme Court’s conservative justices overturned Roe v Wade and thereby eliminated the federal guarantee of the right to control one’s reproduction, relegating that decision to each state individually. Samuel Alito, writing for the majority, grounds his reasoning in originalism, the idea that the deciding factor in judicial thinking should be the framers’ state of mind, and specifically in the understanding of a woman’s rights possessed by the ratifiers of the 14th Amendment in 1868. Because those mid-nineteenth century men and their predecessors did not conceive of reproductive rights as fundamental, Alito concludes that the right to terminate a pregnancy is not “deeply rooted in the nation’s history and traditions”, a phrase which appears in various forms throughout the document. He recognizes but finds no legal significance in the motivations behind the nineteenth century anti-abortion laws the decision hinges on. However, the nativist and sexist animus behind the advocacy for those laws is historically significant, as these ideas are, in fact, “deeply rooted” and their iterations continue to permeate American society over 150 years later, finding expression in the modern carceral institutions that – with the protection of Roe removed – more pregnant Americans will find themselves targeted by.
The state laws prohibiting abortion in existence in 1868 were motivated by a nativist desire to limit the freedom of Anglo-Saxon mothers to control their pregnancy and therefore prevent a dilution of Anglo-Saxon demographic power by immigrants, largely Irish Catholic, who were assumed to possess a criminal nature and were therefore unsuitable for American public life. Alito briefly acknowledges these motivations in Dobbs vs Jackson Women’s Health, however he minimizes them as merely “the fear that Catholic immigrants were having more babies than Protestants” and asserts that the basis of that understanding is confined to a single source[1]. In their paper, “Abortion, Race, and Gender in Nineteenth-Century America”, Nicola Biesel and Tamara Kay evaluated a multitude of sources, finding that “physicians made overt appeals to the racial interests of Anglo-Saxons when they argued that abortion should be prohibited to ensure Anglo-Saxon political control and preserve Anglo-Saxon civilization” and therefore that objection to abortion stemmed not only from nineteenth century understandings of a woman’s role in society, but from nativist ideas of who should be considered American[2].
Figure 1: Abortion Laws per US State by Year Adopted, data from Appendix A of Dobbs v Jackson Women’s Health (territories in orange)
Of the laws cited by the majority opinion and in place in 1868, 79% were passed after 1845, a period corresponding to increased immigration and growing nativist sentiment[3]. Prior to 1845, 10,000 to 100,000 people immigrated to the U.S. annually, but 2.9 million arrived between 1845 and 1854[4]. In 1850, foreign-born individuals comprised 11.48% of the white population which increased to 15.37% ten years later[5]. Nativist sentiment, measured by interest in associated political organizations, increased in the same period. The Order of United Americans (OUA) which would become the Know Nothings – the first political party to include immigration concerns as a major part of their platform[6] -- boasted 2000 members at the end of 1846, but up to 30,000 nationally by 1851 and 30,000 in the state of New York alone by 1855[7].
Thomas Whitney – a founding member of OUA and “its most serious theorist and prolific propagandist”[8] – wrote in 1856 that people “are entitled to just such privileges, social and political, as they are capable of employing and enjoying rationally”[9]. Immigrants, particularly Irish Catholics, were characterized as lazy, dishonest, drunk, and criminal, and therefore unfit citizens[10]. The nativists feared that the “foreign” values and presumed criminal nature of immigrants would lead to the deterioration of American society[11]. The criminalization of immigrants had a predictable effect on their rates of incarceration. In 1850, immigrants constituted 9.7% of the total (including non-white) population, but 35.8% of prisoners which, in 1860, increased to 13.2% of the total population and 46.9% of prisoners[12]. The vote, however, was of primary concern as Anglo-Saxon political power in the northern states depended on electoral success[13]. Accordingly, the Know Nothings favored a waiting period of 21 years between naturalization and suffrage[14].
Figure 2 Caricatures of Irish and German Immigrants steal a ballot box, 1850s. "Nativism and the Know-Nothing Party: American Art in Context," in Smarthistory, February 26, 2021, accessed July 4, 2022
Though the outbreak of the Civil War temporarily pushed immigration concerns to the background, nativist sentiment did not disappear, and is in fact alive and well in the 21st century United States in the form of the “great replacement” theory. Like the nativism espoused by Whitney and the Know Nothings, the “great replacement” theory “insists that entire categories of human beings can or should be excluded from democratic rights and protections” and holds that the conservative, white vote is in danger of being overwhelmed -- in the words of Fox News host Tucker Carlson -- by “more obedient voters from the Third World” welcomed by Democrats to dilute Republican electoral power[15]. A recent Southern Poverty Law Center poll found that almost 70% of surveyed Republicans agreed to at least some extent with white nativist ideas that “that demographic changes in the United States are deliberately driven by liberal and progressive politicians attempting to gain political power by ‘replacing more conservative white voters’”[16].
In this period of heightened concern at the presence of immigrants and the threat they supposedly present to American society, the focus has shifted away from Europe and toward Central and South America and “the perception of Latinos as inherently foreign to the very image and idea of ‘being an American’’ has now become deeply ingrained”[17]. Studies of immigrant representation in news media find that “the most dominant negative characterizations… focus on their perceived criminal tendencies”[18]. Accordingly, rates of incarceration for immigrants are increasing – an average daily population of 34,000 in 2016 rose to 42,000 two years later[19] -- and just like foreign-born Americans in the nineteenth century, Hispanic citizens are imprisoned at rates at odds with their share of the population: 16% of the U.S. population in 2010, but 19% of prisoners[20].
Troublingly, recent whistleblower allegations assert that migrant women held in an I.C.E. detention in Georgia have been sterilized without their informed consent[21]. As of November 19, 2020, 57 women have reported either undergoing unnecessary surgery at the center or being pressured to, and that is likely an undercount due to the deportation of witnesses and survivors and other factors[22]. Forced sterilization of minorities, the poor and those with intellectual disabilities has a long and shameful history in the United States[23]. It reflects the presumption that the state has the right to control its demographic makeup by eliminating the reproductive capacity of potential parents considered to be “unfit”. Though the technology did not exist at the time – the first female surgical sterilization was performed in 1880[24] – it is an intervention mid-nineteenth century nativists would have lauded.
In 1868 -- when Alito would like to source our understanding of reproductive rights -- the role of a woman was understood to be that of a wife and mother. He acknowledges that, in addition to concerns regarding the relative fertility of Catholic immigrants, the motivation behind the mid-nineteenth century anti-abortion laws included fears that “the availability of abortion was leading White Protestant women to ‘shir[k their] maternal duties’”[25]. The physicians advocating for these laws “argued that it was the obligation of Anglo-Saxon women to reproduce the race and thus the nation” and opposed both abortion and contraception on the grounds that control of one’s reproduction contravened a woman’s purpose[26]. Alito notes that when nineteenth century legislatures prohibited abortion, the right to which allows a woman to participate fully in the public sphere, no one objected that “the laws… violated a fundamental right”[27]. However, women were not understood to have a right to equal participation in society. The only suitable public roles for a woman were those “deemed extensions of their maternal and moral roles within the home”[28].
The idea that a woman subverts her natural obligation by terminating her pregnancy is not a relic of the nineteenth century. Though most anti-choice organizations maintain disciplined messaging and avoid hostility toward the person in possession of a uterus, even a cursory survey of the popular Reddit forum’s “pro-life” section reveals plentiful examples of an abortion seeker being derided as selfish for their choice[29]. As Noam Shpancer notes in his essay “Women and Selfishness”: “the association between femaleness and nurturing, caring and consideration permeates our culture”[30]. A woman who prioritizes her own needs or desires rather than the potential life promised by an embryo is therefore violating cultural expectations of self-sacrificing femininity.
Lynn Paltrow and Jeanne Flavin’s examination of cases “in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of [their] liberty” demonstrates that those expectations already contribute to the criminalization of expectant parents[31]. Most of those cases involved an accusation of drug use and, crucially, in fully 64% there was no adverse outcome to the pregnancy[32]. In one example, a woman who sought help for her drug use during her pregnancy was confined to a psychiatric hospital against her will, where she received no prenatal care, and once released was surveilled by the state for the remainder of her pregnancy, despite a doctor’s testimony that her drug use did not endanger the fetus[33]. She suffered confinement and then state supervision for months, losing her job as a result, because as a drug-user she did not meet the cultural expectations of motherhood. This study examined 413 such cases between 1973 and 2005, but National Advocates for Pregnant Women has identified 1,331 additional cases from 2006 to 2020 – after the introduction of fetal personhood bills in many states[34].
Unsurprisingly, most of the women represented in Paltrow and Flavin’s study (52%) were Black. In the U.S., “race has always played a central role in constructing perceptions of criminality”[35]. Like nativism and the primacy of maternity in cultural conceptions of a woman’s role, racialized criminalization of Black citizens is “deeply rooted” in our history. Though Black Codes, which proscribed such malicious acts as vagrancy – provided the perpetrator was Black – were ostensibly eliminated by the Civil Rights Act of 1866 and the Fourteenth Amendment two years later, similar laws remained on the books for decades[36]. The contemporary mass incarceration crisis, which disproportionately deprives Black Americans of their liberty, is but “one historical moment within a much longer and larger antiblack punitive tradition”[37].
Anti-Black racism was not a significant factor in mid-nineteenth century nativism. During the antebellum heyday of the Know Nothing party, most Black Americans were cruelly enslaved and possessed no rights at all nor any conceivable route to displace white Anglo-Saxon political power in the north. The white supremacist ideas that justified the institution of chattel slavery in the United States and then the glorification of the confederacy are however a feature of that nativism’s modern iteration[38]. The “great replacement” narrative is believed to be a motivation behind the murder of ten people, most of them Black, at the Tops Supermarket in Buffalo, New York in May. Nativist ideas fill the document allegedly posted online by the shooter[39]. A nineteenth century fear of Catholic fertility has now morphed into a white supremacist nativism which has already incited terrible violence.
These traditions – sexist ideas of a woman’s role in society as well as nativism and the white supremacy entangled within it – are “deeply rooted” in our nation’s history. Alito and the five concurring justices find no legal significance in the influence these insidious ideologies had on the passage of anti-abortion laws in the mid-nineteenth century. However, those ideas are still in operation today. Now that Dobbs v Jackson Women’s Health has opened the cell door to the criminalization of people seeking to terminate their pregnancy, the burden of real or potential loss of liberty will fall disproportionately on non-white Americans. For an increasing number of women prosecuted for being pregnant but failing to live up to society’s expectation of motherhood, it already has.
BBC News. “ICE Whistleblower: Nurse Alleges ‘Hysterectomies on Immigrant Women in US,’” September 15, 2020, sec. US & Canada. https://www.bbc.com/news/world-us-canada-54160638.
Bauder, David. “What Is ‘Great Replacement Theory’ and How Does It Fuel Racist Violence?” PBS NewsHour, May 16, 2022. https://www.pbs.org/newshour/politics/what-is-great-replacement-theory-and-how-does-it-fuel-racist-violence.
Beisel, Nicola, and Tamara Kay. “Abortion, Race, and Gender in Nineteenth-Century America.” American Sociological Review 69, no. 4 (2004): 498–518.
Boissoneault, Lorraine. “How the 19th-Century Know Nothing Party Reshaped American Politics.” Smithsonian Magazine. January 26, 2017. Accessed June 26, 2022. https://www.smithsonianmag.com/history/immigrants-conspiracies-and-secret-society-launched-american-nativism-180961915/.
Brown, Hana E., Jennifer A. Jones, and Andrea Becker. “The Racialization of Latino Immigrants in New Destinations: Criminality, Ascription, and Countermobilization.” RSF: The Russell Sage Foundation Journal of the Social Sciences 4, no. 5 (2018): 118–40. https://doi.org/10.7758/rsf.2018.4.5.06.
Clark, Simon. “How White Supremacy Returned to Mainstream Politics.” Center for American Progress. Accessed July 8, 2022. https://www.americanprogress.org/article/white-supremacy-returned-mainstream-politics/.
Davis, Angela. Are Prisons Obsolete. New York: Seven Stories Press, 2003.
Davis, Angela. Women, Race and Class. New York: Random House Inc, 1981
Epps, Garrett. “The Antebellum Political Background of the Fourteenth Amendment.” Law and Contemporary Problems 67, no. 3 (2004): 175–211.
Evans, Brenna. “The Long Scalpel of the Law: How United States Prisons Continue to Practice Eugenics Through Forced Sterilization.” Minnesota Journal of Law & Inequality (blog), June 7, 2021. https://lawandinequality.org/2021/06/07/the-long-scalpel-of-the-law-how-united-states-prisons-continue-to-practice-eugenics-through-forced-sterilization/.
Frink, Sandra. “Women, the Family, and the Fate of the Nation in American Anti-Catholic Narratives, 1830-1860.” Journal of the History of Sexuality 18, no. 2 (2009): 237–64.
Hernández, César Cuauhtémoc García. “Abolish Immigration Prisons.” The New York Times, December 2, 2019, sec. Opinion. https://www.nytimes.com/2019/12/02/opinion/immigration-detention-prison.html.
Hinton, Elizabeth, and DeAnza Cook. “The Mass Criminalization of Black Americans: A Historical Overview.” Annual Review of Criminology 4, no. 1 (January 13, 2021): 261–86. https://doi.org/10.1146/annurev-criminol-060520-033306.
Kavattur, Purvaja. “Arrests and Prosecutions of Pregnant Women, 1973-2020 - New York.” National Advocates for Pregnant Women, September 18, 2021. https://www.nationaladvocatesforpregnantwomen.org/arrests-and-prosecutions-of-pregnant-women-1973-2020/.
Lefouria, Tabitha. Chained in Silence. Chapel Hill: University of North Carolina Press, 2015.
Levine, Bruce. “Conservatism, Nativism, and Slavery: Thomas R. Whitney and the Origins of the Know-Nothing Party.” The Journal of American History 88, no. 2 (2001): 455–88. https://doi.org/10.2307/2675102.
Oboler, Suzanne. “‘Viviendo En El Olvido’: Behind Bars, Latinos and Prison.” Latino Studies 6 (2008): 1–10.
Paltrow, Lynn M., and Jeanne Flavin. “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health.” Journal of Health Politics, Policy and Law 38, no. 2 (April 1, 2013): 299–343. https://doi.org/10.1215/03616878-1966324.
Prison Policy Initiative. “Breaking Down Mass Incarceration in the 2010 Census.” Accessed July 4, 2022. https://www.prisonpolicy.org/reports/rates.html.
Ritter, Luke. Inventing America’s First Immigration Crisis: Political Nativism in the Antebellum West. Fordham University Press, 2021. https://doi.org/10.2307/j.ctv119907b.8.
Serwer, Adam. “Conservatives Are Defending a Sanitized Version of ‘The Great Replacement.’” The Atlantic, May 18, 2022. https://www.theatlantic.com/ideas/archive/2022/05/buffalo-shooting-republican-great-replacement/629903/.
Shpancer, Noam. “Women and Selfishness.” Psychology Today. Accessed June 26, 2022. https://www.psychologytoday.com/us/blog/insight-therapy/201110/women-and-selfishness.
Southern Poverty Law Center. “SPLC Poll Finds Substantial Support for ‘Great Replacement’ Theory and Other Hard-Right Ideas.” Accessed June 28, 2022. https://www.splcenter.org/news/2022/06/01/poll-finds-support-great-replacement-hard-right-ideas.
Whittum, Michelle, Robyn Schickler, Nicole Fanarjian, Rachel Rapkin, and Brian T. Nguyen. “The History of Female Surgical Sterilization.” Journal of Gynecologic Surgery 37, no. 6 (December 2021): 459–64. https://doi.org/10.1089/gyn.2021.0101.
(Brief-Address-2474 ). “Getting this off my chest.” Reddit. June 30, 2022. https://www.reddit.com/r/prolife/comments/vo3cuc/getting_this_off_my_chest
(eternitypasses). “Why are you against abortion??” Reddit. Jun 28, 2022. https://www.reddit.com/r/prolife/comments/vn4qva/why_are_you_against_abortion/
(Kidsrgr8-h8parenting). “Prochoice people are selfish and only care about themselves.” Reddit. Jun 8, 2022. https://www.reddit.com/r/prolife/comments/v7j51j/prochoice_people_are_selfish_and_only_care_about/
[1] Dobbs v Jackson Women’s Health, No 19-1392 (U.S. June 24, 2022), 28
[2] Nicola Beisel and Tamara Kay, “Abortion, Race, and Gender in Nineteenth-Century America,” American Sociological Review 69, no. 4 (2004): 499.
[3] Dobbs v Jackson Women’s Health, No 19-1392 (U.S. June 24, 2022), 79-108; See also Figure 1.
[4] Lorraine Boissoneault, “How the 19th-Century Know Nothing Party Reshaped American Politics.” Smithsonian Magazine, January 26, 2017. https://www.smithsonianmag.com/history/immigrants-conspiracies-and-secret-society-launched-american-nativism-180961915/.
[5] Luke Ritter, Inventing America’s First Immigration Crisis: Political Nativism in the Antebellum West (Fordham University Press, 2021), 107, https://doi.org/10.2307/j.ctv119907b.8.
[6] Boissoneault, “Know Nothing Party”
[7] Ritter, Inventing America’s First Immigration Crisis, 106-107
[8] Bruce Levine, “Conservatism, Nativism, and Slavery: Thomas R. Whitney and the Origins of the Know-Nothing Party,” The Journal of American History 88, no. 2 (2001): 461, https://doi.org/10.2307/2675102.
[9] Levine, “Conservatism, Nativism, and Slavery”, 465
[10] Boissoneault, “Know Nothing Party”; Levine, “Conservatism, Nativism, and Slavery”, 469
[11] Ritter, Inventing America’s First Immigration Crisis, 105
[12] Ritter, Inventing America’s First Immigration Crisis, 107
[13] Beisel and Kay, “Abortion, Race, and Gender”, 499
[14] Levine, “Conservatism, Nativism, and Slavery”, 470
[15] Adam Serwer, “Conservatives Are Defending a Sanitized Version of ‘The Great Replacement,” The Atlantic, May 18, 2022. https://www.theatlantic.com/ideas/archive/2022/05/buffalo-shooting-republican-great-replacement/629903/.
[16] Southern Poverty Law Center, “SPLC Poll Finds Substantial Support for ‘Great Replacement’ Theory and Other Hard-Right Ideas,” Accessed June 28, 2022. https://www.splcenter.org/news/2022/06/01/poll-finds-support-great-replacement-hard-right-ideas.
[17] Suzanne Oboler, “‘Viviendo En El Olvido’: Behind Bars, Latinos and Prison,” Latino Studies 6 (2008): 3
[18] Hana E. Brown, Jennifer A. Jones, and Andrea Becker, “The Racialization of Latino Immigrants in New Destinations: Criminality, Ascription, and Countermobilization,” RSF: The Russell Sage Foundation Journal of the Social Sciences 4, no. 5 (2018): 119, https://doi.org/10.7758/rsf.2018.4.5.06.
[19] César Cuauhtémoc García Hernández, “Abolish Immigration Prisons,” The New York Times, December 2, 2019, https://www.nytimes.com/2019/12/02/opinion/immigration-detention-prison.html.
[20] Prison Policy Initiative, “Breaking Down Mass Incarceration in the 2010 Census,” accessed July 4, 2022, https://www.prisonpolicy.org/reports/rates.html.
[21] “ICE Whistleblower: Nurse Alleges ‘Hysterectomies on Immigrant Women in US,’” BBC News, September 15, 2020, https://www.bbc.com/news/world-us-canada-54160638.
[22] Brenna Evans, “The Long Scalpel of the Law: How United States Prisons Continue to Practice Eugenics Through Forced Sterilization,” Minnesota Journal of Law & Inequality (blog), June 7, 2021, https://lawandinequality.org/2021/06/07/the-long-scalpel-of-the-law-how-united-states-prisons-continue-to-practice-eugenics-through-forced-sterilization/.
[23] Angela Davis, Women, Race and Class. (New York: Random House Inc, 1981), 216-220
[24] Michelle Whittum et al., “The History of Female Surgical Sterilization,” Journal of Gynecologic Surgery 37, no. 6 (December 2021): 459, https://doi.org/10.1089/gyn.2021.0101.
[25] Dobbs v Jackson Women’s Health, 28
[26] Beisel and Kay, “Abortion, Race, and Gender”, 514; 506
[27] Dobbs v Jackson Women’s Health, 28
[28] Sandra Frink, “Women, the Family, and the Fate of the Nation in American Anti-Catholic Narratives, 1830-1860,” Journal of the History of Sexuality 18, no. 2 (2009): 244.
[29] (Kidsrgr8-h8parenting), “Prochoice people are selfish and only care about themselves”, Reddit, Jun 8, 2022, https://www.reddit.com/r/prolife/comments/v7j51j/prochoice_people_are_selfish_and_only_care_about/; (Brief-Address-2474 ), “Getting this off my chest”, Reddit, June 30, 2022, https://www.reddit.com/r/prolife/comments/vo3cuc/getting_this_off_my_chest/: “it hurts me deeply to think that so many people would be so selfish to say its "my body" that they'd kill a baby out of what appears to me as ignorance”; (eternitypasses), “Why are you against abortion??”, Reddit, Jun 28, 2022, https://www.reddit.com/r/prolife/comments/vn4qva/why_are_you_against_abortion/: “A woman’s convenience is more important than another human’s right to life? How do you square that one exactly?”
[30] Noam Shpancer, “Women and Selfishness,” Psychology Today, accessed June 26, 2022, https://www.psychologytoday.com/us/blog/insight-therapy/201110/women-and-selfishness.
[31] Lynn M. Paltrow and Jeanne Flavin, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health,” Journal of Health Politics, Policy and Law 38, no. 2 (April 1, 2013): 299, https://doi.org/10.1215/03616878-1966324.
[32] Paltrow and Flavin, “Arrests of and Forced Interventions on Pregnant Women”, 333
[33] Paltrow and Flavin, “Arrests of and Forced Interventions on Pregnant Women”, 307-308
[34] Purvaja Kavattur, “Arrests and Prosecutions of Pregnant Women, 1973-2020 - New York,” National Advocates for Pregnant Women, September 18, 2021, https://www.nationaladvocatesforpregnantwomen.org/arrests-and-prosecutions-of-pregnant-women-1973-2020/.
[35] Angela Davis, Are Prisons Obsolete, (New York: Seven Stories Press, 2003), 28.
[36] Garrett Epps, “The Antebellum Political Background of the Fourteenth Amendment,” Law and Contemporary Problems 67, no. 3 (2004): 205; Elizabeth Hinton and DeAnza Cook, “The Mass Criminalization of Black Americans: A Historical Overview,” Annual Review of Criminology 4, no. 1 (January 13, 2021): 267-268, https://doi.org/10.1146/annurev-criminol-060520-033306.; Tabitha Lefouria, Chained in Silence, (Chapel Hill: University of North Carolina Press, 2015), 58.
[37] Hinton and Cook, “The Mass Criminalization of Black Americans”, 263
[38] Simon Clark, “How White Supremacy Returned to Mainstream Politics,” Center for American Progress (blog), accessed July 8, 2022, https://www.americanprogress.org/article/white-supremacy-returned-mainstream-politics/.
[39] David Bauder, “What Is ‘Great Replacement Theory’ and How Does It Fuel Racist Violence?,” PBS NewsHour, May 16, 2022, https://www.pbs.org/newshour/politics/what-is-great-replacement-theory-and-how-does-it-fuel-racist-violence.