Multiple historical sources prove reproductive choices were strictly private matters, not interfered with by outside parties during the time of the drafting of the Constitution. Herbs were widely used to induce miscarriages when a pregnancy termination was wanted and drugs to induce abortions were openly advertised in newspapers to be bought from pharmacists, physicians or through the mail and if drugs failed, people could visit practitioners for instrumental abortions.
As detailed from United States history by The Washington Post, a 1792 case even gets the approval of several founding fathers, including the mentor of one of the chief architects of the United States Constitution—Thomas Jefferson who mentored James Madison. Three United States founders from Virginia—Jefferson, Patrick Henry and John Marshall—sought no charges in a sensational court case where evidence of an abortion was found.
In 1792, an 18-year-old unwed woman, Nancy Randolph, allegedly became pregnant by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith. When Martha Jefferson Randolph—Thomas Jefferson’s daughter who was cousin and sister-in-law to Nancy and Judith—visited in September, she recommended Nancy use gum of guaiacum to end the pregnancy and sent her some later with the note it would “produce an abortion.”
Two weeks later on a visit to another of their cousins, Nancy Randolph induced the miscarriage and abortion then disposed of the fetus on the property where it was found by one of the slaves leading to rumors and scandal among the upper society which eventually reached Martha’s father Thomas Jefferson.
In his letter to her, Jefferson expressed only sympathy for Nancy, writing:
“I see guilt but in one person, and not in her.”
Eventually Richard Randolph was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same” based on rumors the fetus was full-term, Nancy had given birth to a live child and Richard killed it to avoid charges of incest—a crime in Virginia at the time.
But evidence suggested a deliberate second-trimester abortion and not a live birth of a viable infant.
In April 1793, Richard appeared before a tribunal of county judges acting much as a grand jury does today, deciding if the charges should be adjudicated. Richard was defended by Patrick Henry, John Marshall—future U.S. Supreme Court chief justice and William Campbell—U.S. attorney for Virginia.
Evidence of both Nancy and Martha’s part in inducing an abortion was presented and documented, but neither woman was charged with any crime. The only illegal act—Richard killing a living infant—was considered disproven and all charges dropped.