1 rivacy, like individualism, is a historical product; it emerges only when there is a public domain, that is, in relation to the state. The concept of a private, personal realm encompassing family, sexuality, and childbearing did not exist among hunters and gatherers nor in the medieval world. In ancient and modem states in the West, the division between public and private, city and household, acquired salience in political theory and in the everyday structures that separate male from female, denoting, not woman’s autonomy within the "private" sphere, but her confinement to it. Throughout history, states have recurrently invaded the private domain, attempting to organize, rechannel, restrict, or expand the fertility and sexual practices of ordinary people. Their reasons, in most historical periods, have to do with two essential purposes related to the nature of the state: the control of populations (their size and composition) and the control of sexuality, especially that of married women and young girls. In practice, however, these two aspects of state intervention in personal life result in complex and sometimes contradictory policies.
This chapter examines the role of the state in channeling fertility control practices, first in a general and speculative way and then in the context of a historical case study: the criminalization of abortion in nineteenth-century America. My argument is that state policies of fertility, population control, and sexual control are attempts to contain, not only women’s spontaneous practices, but also the contradictions inherent in these different, but inevitably related, "public" purposes.
Population control, as an organized, centralized policy administered by a hierarchically concentrated power structure, is a feature of both the ancient and modern state. One can argue that the size, composition, and productivity of its population were important formative elements
in determining the cohesiveness and power of early states. Historically, the state arose within or as a constellation of newly “public" functions, which Stanley Diamond calls the “census-tax-conscription system":
The territorial thrust of the early state, along with its vertical social entrenchment, demanded conscription of labor, the mustering of an army, the levying of taxes and tribute, the maintenance of a bureaucracy, and the assessment of the extent, location, and numbers of the population being subjected.
These were the major direct or indirect occasions for the development of civil law.1
These functions presuppose a certain stage of production, expansion, and exchange, in particular, (1) a mode of production (field agriculture, mining) that is labor intensive and produces a surplus sufficient to make available not only “extractible resources" but disposable wealth that can supply revenues; (2) an institutionalized system of militarism and military conquest, requiring a constant supply of “manpower" and revenues for its upkeep; and (3) a territorial base that supports a stable population whose primary affiliations and loyalties can be appropriated from (declining) kin groups in the service of the rising central power. Census taking (counting affiliation by residence or domicile rather than blood ties), taxation, and military and labor conscription are the principal methods whereby individual loyalties and tributes are tallied and extracted—a process that is invariably coercive and bloody.2
Within such a system, human beings—workers, slaves, taxpayers, citizens, soldiers, and breeders of all these—assume a value they did not have in a social organization based on kinship and horizontally shared resources. They become an object of appropriation for the state, its principal source of wealth; and births, along with conquests, migrations, and involuntary confinement or servitude, become a matter of state policy, perceived as a basis of political, military, and economic power. Thus the eighteenth-century French writer Moheau urged the mercantilist monarchy to value numbers of people more highly “than the gold and silver coins that enter the public treasury"; he castigated the practice of birth control among the French upper class and rural women as “a terrible and secret cause of depopulation that imperceptibly drains the nation " and is "deadly to the state"; and he reviled women who put their children out to nurse as “betraying. . . their duties as a citizen."3
Because women are the reproducers of children, the formation of the state—whether in ancient society, the African kingdom of Dahomey, or early modern Western Europe—has invariably brought drastic changes in the position of women, usually in the direction of a decline in their power and status. A growing feminist literature documents various historical cases in which state formation has attempted to reduce women to their procreative capacity at the same time as it has involved the appropriation by male rulers and patriarchs of women’s power and symbolic authority (in horticultural society) over fertility, children, and their own sexual being. This process has had multiple dimensions: the deposition of archaic fertility goddesses by male deities who took upon themselves the power to create life, the consequent demystification and "domestication" of women’s social and biological role in childbearing, the establishment of patterns of patrilineal descent and male control over property inheritance within kin groups, the consolidation of those patterns through laws enforcing female chastity (of virgins and wives) and regulating population, and the confinement of women (especially of the upper classes) to domestic spaces and tasks.4 In ancient Athens as in mercantilist France, woman’s "duties as a citizen" were to remain chaste within marriage and to procreate—to provide heirs/citizens/soldiers/slaves/workers—but not to rule either in the city or the household. To secure the loyalty of men as taxpayers, property owners, and soldiers, the ancient and the early modern state in Europe promised them authority in their own house and the "legitimacy" of their children. Thus, far from being separate from the private sphere of family and childbearing, the public realm of the state depends on that sphere and tries to shape it. In feminist theory, the origins of the state are inseparable from the origins of patriarchy, a system of power in which men as fathers and husbands govern the labor, sexuality, and fertility of their daughters and wives. And the specific link between the two is the politicization and appropriation of fertility. Both public and private control over women as sexual and reproductive beings helps define the terms and boundaries of public power in the state.5
Sorting out the populationist (political-economic) and the sexist (patriarchal) dimensions of fertility control policies imposed by those in power in any period is a difficult task. Radical feminist theorists such as Adrienne Rich and Mary Daly cite the manifold ways in which, historically, institutions representing patriarchal authority in the state—the church, lay moralists, the husband-dominated nuclear family, and later the medical profession—attempted to define women’s relationship to their fertility: when and whether they had sex and became pregnant, with whom, and how. Through moral injunctions, heterosexual and conjugal prescriptions, motherhood cults and fetishes, personal and sexual domination, and appropriation of the techniques of birth control and childbirth, these institutions sought to control women and their activities even more than the quantity or "quality" of their issue.6 But while the politics of fertility can never be reduced to sheer numbers (birthrates), neither can the question of population control as an economic motive be divorced from those politics. The frequent practice of female infanticide in the ancient world, for example, represented a fusion of population control and misogynist strategies, an "efficient" method of controlling future births that both devalued women as reproducers and denigrated them as social beings. Likewise, cults of virginity not only restrained and appropriated the sexuality of young girls but also helped define the limits of marriage and childbearing in economic conditions where partible land was scarce.
The complex interrelation of class, sexual, and populationist elements in the state’s reproductive policy can be illustrated by the Roman Empire, whose population measures were a precarious balancing act. As early as the first century, Roman law manifested concern with a falling birthrate— among married upper-class couples. For this class, procreation was viewed as a civic duty, and the law, under decrees of Augustus, constructed a number of rewards and penalties to promote at least three children per couple and to discourage childlessness. This pronatalist policy reflected the state’s awareness that chemical, magical, surgical, and mechanical methods of abortion and contraception were known and practiced by Roman women and accounted for the birthrate decline.7 Yet these methods were, as they have been through much of history, class specific; contraceptive potions and abortifacients were the "prerogative of those able to afford them," while the poor resorted to abandonment and infanticide. The Empire did not prohibit these latter methods, but it did impose the punishment of exile on wives who procured an abortion without the husband’s consent and on women (probably midwives) who administered drugs or potions connected to children or conception (contraceptives and abortifacients).8 Such wives and midwives were seen as setting "a bad example in the state," forsaking the duty of procreation among citizens and—worse still—taking reproduction into their own hands.
State-organized programs to reduce or increase fertility vary enormously according to historical and national circumstances, but certain commonalities stretch across time and place and link programs of pronatalist marriage and family laws, involuntary sterilization, infanticide, or prohibitions on contraception and abortion. Because state societies are hierarchically organized—divided into dominant and subordinate classes and races—these policies, whether pronatalist or antinatalist, have a distinct class and frequently ethnic dimension. Often they aim at reducing the underclasses—the surplus poor, the unemployed, racial and ethnic minorities, or the otherwise "unfit"—and increasing birthrates among the middle class, the "wellborn," and dominant racial and ethnic groups. In this way the state attempts to direct who will raise and socialize children and to shape the composition and size of the different classes. This was true in ancient Greece and the Roman Empire, as it was in the "race suicide" and eugenic campaigns in America in the late nineteenth and early twentieth centuries.
At other times, dominant groups consecrate to themselves the "rationality" and practical benefits of safe methods of fertility control, denying them to the lower classes. In late-eighteenth-century France or early — twentieth-century America, fears of the mushrooming classes dangereuses and white Anglo-Saxon "race suicide" contend with the bourgeoisie’s or Yankees’ pride in "fewer and better" children as signifying their moral purity and demarcating them from the lower classes. Ultimately, the recurrent policy of imposing patriarchal controls over women’s fertility and sexuality is difficult to balance with a policy of population control aimed at the poor or racial minorities. The state’s promotion of fertility control measures in the service of populationist ends may unwittingly facilitate their use by the "wrong" women (ruling-class wives and unmarried daughters), in the service of their sexual and reproductive freedom. Eugen — icists in the early twentieth century in England and the United States, for example, found that tax incentives or subsidies to encourage "better breeding" among the upper classes actually encouraged the lower classes; whereas the dissemination of birth control information aimed at curbing the poor and the "unfit" had a greater, though unintended, impact on the middle class.9 In other words, while population control and sexual control over women are coexistent strategies in state societies (which are also male-dominated societies), at various historical junctures they come into serious conflict.
The role of the state is to mediate this conflict by developing fertility policies that authorize population control measures and set limits on the legitimate boundaries of women’s control over their fertility and sexuality, especially women who are the concern of patriarchal authority: wives and unmarried dependent daughters. In this mediating function, state powers recurrently seek to prohibit abortion, a means of fertility control that is particularly incompatible with orderly sex-gender relations. But even here, tensions between population control and sexual control infiltrate public policy. Moreover, the state must balance these two goals with a third, overriding purpose: to maintain internal order and its own legitimacy, which sometimes requires accommodating popular demands.
We have been talking about "the state" abstractly, as though it were a monolith. In fact, in the history of the Western capitalist state, policies affecting reproduction and sexuality have emerged out of a changing nexus of mediating forces, in which and through which women have negotiated their relationship to childbearing and sexuality. There has been no "center," no monolithic power structure, but a complex weave of multiple "centers of power" whose composition has shifted historically."10 The pivotal, though far from decisive, role of the church in influencing popular thinking and practices about fertility was displaced to some extent by the medical profession in the nineteenth century, which in turn found its influence challenged in the mid-twentieth by population planners and governmental agencies. Throughout the eighteenth to twentieth centuries, all four power centers coexisted and exerted an influence on state policies. Yet the absence of any absolute center does not mean that "power is everywhere";11 it remains possible to specify its locus in a given instance and to analyze the dynamics through which one group dominates and another resists within the total conjuncture. In the long run, women’s fertility options in state societies are affected by a complex network of institutions and social forces including religion, medicine, law, the economy, and the family, which are all hierarchically organized by gender, class, and race. In the short run, we can still identify the disproportionate impact of, say, poor law officials, physicians, or family planners on the fertility practices of groups of women at particular moments.
In America in the late nineteenth and early twentieth centuries, the configuration of "powers" and "discourses" around fertility control began to shift markedly in a number of ways that still affect struggles for reproductive freedom. The official organizers of a fertility politics, one that represented the dominant groups in society, were increasingly secularized and professionalized— physicians, social welfare agents, academics, scientists—in short, the same middle-class configuration that designed policies of state intervention in many other arenas of "family life" from the Progressive era onward.12 Ideologically, they combined a focus on eugenics, or a belief in "selective breeding" that would promote the propagation of "fitter" populations and discourage that of the "unfit"; an epidemiological, or public health, approach that provided a hygienic rationale for birth limitation and sexual restraint, especially among the lower classes; and an emphasis on "quality" mothering, guided by "experts" in childrearing. Sex, in this formulation, becomes a subtext of hygiene; yet it was also perceived as a "point of access" to population control and therefore a legitimate object of public scrutiny.13 The "control" of sexuality is not an end in itself. It is a means toward the production of "good" children, "stable" families, "pure" races, higher (or lower) birthrates, and an orderly (class-based) society; rather than "repress" sexuality, it defines sexuality within history. A historical analysis that would reduce this complex nexus of political agencies and ideologies to "population" or "eugenics" alone would obscure the aspect of direct sexual regulation they involve, including the direction of women’s sexuality into maternity. On the other hand, subsuming all "population" questions under the "history of sexuality" risks overlooking the intense ideological effort by twentieth-century agents of population control to sanitize the subject of fertility control, to desexualize it under a veil of medical and technocratic rationality.14
Increasing measures by the state and other powerful agencies to regulate fertility and women’s control over it, beginning with the outlawing of abortion in the 1860s and 1870s, were part of a much larger tendency in late-nineteenth-century America that marked the early origins of the welfare state. It involved the centralization and rationalization of control over the movement, passions, reproduction, and secretions of bodies— what Foucault calls "bio-power." New state boards of charity, hygiene, child welfare, and the like aimed not only at the sexuality and reproductivity of women but the mobility of the poor and immigrants, the containment of deviants, and the activity and welfare of children—at all "surplus populations" in a period when industrial capitalism and immigration were spewing forth surplus people as quickly as surplus goods.15 The forms in which these regulations appeared were positivistic science and medicine and the newly specialized and professionalized interests that practiced them: criminologists, psychiatrists, child welfare agents, obstetrician-gynecologists. The methods the social regulators used were those of measurement and surveillance: census taking, birth registries, population statistics, case histories, and "expert testimony."16 Indeed, with the development of an organized medical profession, it became possible for agents of upper — class and patriarchal authority to scrutinize the fertility behavior of ordinary women at first hand. (Without the medical reports of physicians in late-eighteenth-century France and nineteenth-century America, we would probably know little or nothing about that behavior today.) Systematic measurement and scrutiny of women’s fertility and sexual practices were part of a process of politicization that made visible an arena of social life that had previously been invisible, private. Laws criminalizing abortion in the latter half of the nineteenth century did not suppress abortion as much as they revealed it, regulated it, certified it as a legitimate domain of public intervention and control.
The question is, Why does the state begin to centralize and "technoc — racize" its control over bodies—their numbers, movement, passions, and so on? Why, in particular, does a traditional female practice, abortion, become subject to organized political control? Historically, state and church policies regulating fertility tend to be reactions to the perceived practices and values of women. The state attempts to accommodate, rechannel, or delegitimate women’s everyday practices and values around fertility; rarely is it possible to wipe them out. Thus ordinary women play a dynamic part in determining the politics of reproduction and sexuality, through their practices and sometimes their consciously articulated ideas. Yet both state policies regarding fertility and the popular practices they aim to regulate must be seen in relation to historically varying social and economic conditions. These conditions proceed, as Marx says, independently of the "will" of either women or the state.