“No legal recourse” — A woman’s story

By Norma Barnett —

“There is nothing in [the Constitution] about women at all. Most consequentially, there is nothing in that document…that suggests its authors imagined women as part of the political community embraced by the phrase “We the People”. Jill LePore, Why There are No Women in the  Constitution.

In the Fall of 1819 my 3rd great-grandfather, Timothy Garfield, married my 3rd great-grandmother, Harriet Frost, in Vermont. In the next 18 years Timothy and Harriet bought and ran a farm, paid off their mortgage, and had 6 children. Six living children, that is. Three died in infancy. To supplement the family income Timothy taught school and made bricks, which he had learned to do in his teenage years. They were respected members of their community.

By 1837, after a hard winter, sensible Timothy developed an unrelenting  case of “Western Fever”. Although Harriet did not share his obsession, one day Timothy,without Harrit’s knowledge, sold their farm. As soon as the family was settled in another house, Timothy set out to see the cornfields of Illinois. Their son, Franklin, who wrote about his parents, reported that:

 “No law of the State at that time made it necessary for the wife to join in a deed with her husband, and when Harriet came home, she learned suddenly that the house she had struggled over so long, where she had toiled and suffered and where all of the living children were born, was sold, gone—irrevocably gone.”

The irony was that Timothy left for Illinois on May 10, 1837, and by June 27, 1837, he was back in Vermont due to extreme homesickness. Timothy and Harriet worked, bought another farm, had two more children, sold that farm in 1841, and the entire family of two parents and eight children settled 50 miles away from the small community of Chicago.

When Timothy first sold the farm, how did Harriet react? According to Green:

“It was a terrible shock to her, yet her pride came to the aid of her natural courage, and she faced the thing with the resignation of a Christian and the courage of a noble woman.”

Franklin’s traditionally expressed admiration of Harriet may not touch every person. But elsewhere he describes his mother as: resolute, with laughing blue eyes, and “better than all, a will, courage and force”. Harriet also had a “coterie” of friends, all strong women. Even among these friends, Harriet “was a proud, high-strung, courageous woman”. Her friends “sorted and associated with each other. They were loyal wives each and all did not require any aid in keeping or warranting their husbands’ loyalty… they were loyal to and loved by each other”.

No doubt Timothy Garfield was a hard-working, competent, loving father, husband and son. A good man. But Harriet was equal to him in stamina and competence and respect in the community.  In Illinois the Garfields ran not only a farm but a way station for travelers. Harriet and her children, day or night, provided food, shelter and care for horses, often working into the early hours of the morning. The difference between Timothy and Harriet? Timothy had the law and his community to rely on to help him succeed and to pursue his dreams. Harriet had to hope that   Timothy wouldn’t let her down.

Although women could own property, their husbands and fathers (and brothers) were not required to include them in family wealth. In other words, the right to family property was “not deeply rooted in this Nation’s history and tradition”. (This is the phrase that Justice Alito used to deny abortion rights any Constitutional status.) Women could not vote until 1919. If they inherited property or gained informal status within their communities, they were looked on with suspicion. 

In 1692 my 8th great-grandmother, Rebecca Nurse, was accused of witchcraft and dragged from her sickbed at the age of 71, to stand trial. She was singled out because her family had prevailed in a property dispute with another local family. She particularly was considered too prideful. She had a “reserved”, at times brusque manner. Rebecca was accused of angrily complaining about the noise made by the neighbor’s pigs.  She was, at first, acquitted (twice) by a jury. At the end, she was convicted of witchcraft because one of her judges kept insisting on her guilt and pressured the jury to convict her. She was hanged in Salem Village, MA on July 19, 1692. 

Abortion wasn’t “deeply rooted in this Nation’s history and tradition” but neither were women. They were not recognized as persons or citizens in the Constitution. Women had no legal recourse to alter decisions made by a husband or a father, even if it significantly affected their lives. Good men, like Timothy, with strong, capable wives, like Harriet, could impulsively pursue their dreams, and their wives could pursue “Christian resignation and courage”.

I am not trying to make an air-tight legal argument here. I am saying that to deny women the option of pregnancy termination on the basis that there’s no mention of such things in the Constitution is ludicrous. 

There’s no mention of women. More importantly, overturning Roe (because it will happen) deprives women of the opportunity to decide and determine the course of their own lives. It penalizes women for having sex (even when they are victims of rape or incest) and returns to a mostly male power elite the capacity to exercise extraordinary power over women. 

Kamala Harris put a critical question to Justice Kavanaugh in his hearing: “Do you know of one law, anywhere in this country, that tells men that they cannot make their own decisions about their bodies”? (Paraphrase). That women can become pregnant creates a situation in which over half of our population can now be subject to being punished for having sex, for becoming pregnant, for having to endure the life-changing results of sexual abuse and violence by men. 

For a Supreme Court, and a Republican party that rails against government control of and restrictions on individual choices—to own and carry guns, to accumulate obscene wealth and avoid significant taxation, to fight public health measures like wearing masks—they have no qualms about almost wrenching control from women whose pregnancies are unwanted. 

And most of us doubt this will be the end. Talk is already in the air about limiting access to contraception. Those on the right are outraged by the leak of the draft. They refer to their views as “pro-life”,  advocating for unborn babies who cannot speak for themselves. But at the heart of the current Supreme Court’s apparent decision is misogyny. At best the anti-abortion movement is pro-birth, not pro-life, because little attention is paid to the lives of those already living: women and their families. Also, little attention is paid to women and their families after another baby is born. 

At worst, I see my granddaughters’ lives as likely to be in the hands of others, a reversion to the kind of powerlessness that affected their women forebears, like Harriet Frost and Rebecca Nurse. They will have no legal protection over pregnancy decisions, decisions that will inevitably affect the choices available to them in their own lives.