Abolition and Abortion: The Slave Trade and the Criminalization of Abortion in Britain

Abstract

In Dobbs v. Jackson Women’s Health Organization , Justice Samuel Alito cites the Ellenborough Act of 1803, the first statutory prohibition of abortion in the Anglo-American common law system, and endorses one interpretation of the bill as an effort to protect fetal rights. However, the reasons behind Lord Ellenborough’s decision to criminalize abortion have been unclear to historians, especially given the common law’s historical indifference to abortion and the absence of general outcry over the practice at the time the bill was passed. This article argues the Act’s origins instead lay in Ellenborough’s professional history as counsel for the Merchants of Liverpool in their opposition to various abolitionist bills before Parliament between 1792 and 1799. The article incorporates data collected from the first comprehensive review of nineteenth-century abortion trials held in England and Wales, whose statistics on domestic, birth-related prosecutions illustrate that abortion was not a crime the criminal justice system was interested in punishing. Instead, using Ellenborough’s personal and professional papers, the article argues that the 1803 statute should be interpreted through Ellenborough’s sustained commitment to the protection of private property and the defense of the institution of slavery.