Criminalizing Pregnancy before Dobbs: The Case of Elizabeth Brian at Bridewell Hospital

In 1605, a woman named Elizabeth Brian testified before the courtroom of London’s Bridewell Hospital that the matron of the prison “gave her a drink in a pewter pot which was warm, and she thinks that destroyed the child within her” (BCB 5, f.41). Four or five days before Elizabeth drank from the matron’s pot, The Bridewell Court Books record that she had been imprisoned at Bridewell for unwed pregnancy, the very pregnancy that the matron’s draught supposedly ended. Elizabeth’s first criminalization for unwed pregnancy is a quintessential example of how the popular imagination viewed prisoners at Bridewell Hospital. Throughout the sixteenth and seventeenth centuries, Bridewell was notorious in English culture for arresting, trying, and punishing poor women for sexual offenses like sex work and extramarital pregnancy and labor crimes like unemployment or being perceived as idle (Mowry). In this historical moment, Bridewell was a state-run, charitable institution that existed in the wake of the medieval hospital (a space of Catholic charity for the sick) but was not yet operating like the modern clinic nor like its modern inheritor institutions, including the prison, the workhouse, and the orphanage. The city alderman and private officials who oversaw situations like Elizabeth’s defined the boundaries of gender, sex, and social rank and made those boundaries into a legal matter with legal consequences. Pregnant and unmarried, Elizabeth was sentenced to the customary forced labor, and it was in the workroom that she would have encountered the matron and the pewter pot, that, to the modern eye, seems to have produced an abortion. Her re-criminalization for altering the very pregnancy which initially led to her imprisonment exposes a legal double-bind. Pregnancy and its absence are each subject to the law, obscuring Elizabeth’s agency over her body.

Both the records of her initial criminalization and re-criminalization fail to recognize Elizabeth as an illicit agent of criminal wrongdoing. Instead, the records attest to the court’s desire to represent her as, first, a vulnerable victim, and then a criminal to be punished. Indeed, Elizabeth was a victim. At the time of her arrest, she told the court that “her said master had the use and carnal knowledge of her body, and she is with child by him.” Elizabeth had worked in the household of a trunk maker with the surname Tenby. While the language of “use” typically characterizes sexual encounters, Tenby’s assault on his maidservant exemplifies the most violent and exploitive tenor of “using” someone. She testifies that he had “stop[ed] her mouth, and forced her by threats to yield her body to him” (BCB 5, f.30). This violence and rape occurred more than once as the court records that “the first time she well remembereth not, but [the] second time was presently after Whitsuntide last past.” Yet, despite the power of her testimony to her resistance to Tenby’s assaults, the court sees her as a passive recipient of his attack; she “yield[ed]” her body when faced with the threat.

Passivity defines the contours of the pregnancy itself. Elizabeth is said to be “with child,” which suggests she is little more than a host carrying an independent being. Furthermore, Elizabeth’s agency in seeking the abortion is hazy. The record does not say that she wanted to end the pregnancy. Rather than representing her intentions, her testimony reveals the matron as the agent. Even the drink itself has more agency than Elizabeth. The details of its “warm” temperature and the “pewter” container suggest that this was evidence and that the tonic’s qualities or that the heated vessel were an abortifacient. In an otherwise thin account, the drink is emboldened with the power to have “destroyed the child within her” – a power that Elizabeth does not have. Nor, for that matter, does she have the capacity to stop the drink’s effects or the Matron’s influence. The only instance where Elizabeth’s agency is recognized is when she contemplates her situation. The court record notes that “she thinks” the drink “destroyed the child”: a present tense, active self-reflection that occurs to mark her as tentative: “she thinks,” but cannot be sure. In the eyes of the court, the suppression of agency defines Elizabeth’s legal subjectivity, silencing her voice to amplify the state of her body, be it “with child” or not. The court’s ascribed passivity defines her imprisonment, punishment, and the untold stigma she may have endured.

Elizabeth’s case is also a striking example of how the court was at odds with broader cultural understandings of the body, pregnancy, and the many outcomes that pregnancy could produce. Unlike the court, popular wisdom professed that people had significant influence over their embodiment, including the many discrete experiences of pregnancy: menstruation, conception, the body expanding, the quickening, and the act of birth. In the words of Sarah Mendelson and Patricia Crawford, English culture held that a pregnant person’s “behavior, diet, and imagination could contribute to the outcome of their pregnancies” (151). Unlike prenatal medicine today, the disparate states of fertility did not always form a linear narrative that resulted in an independent child. In Elizabethan England, the body was ambiguous and adjustable. As David Cressy writes, knowledge and practices of contraception and abortifacients were widely available. So too were there many apothecaries, physicians, and wise women who could help (47-50). Ending a pregnancy was medically characterized as restoring menstruation, or “to procure the months,” by clearing a blockage or deterring matter from forming in the first place (48-49). These actions were regulated by the law and the community when they occurred after the quickening (the sensation of fetal movement, which occurs at 4 to 5 months into pregnancy), itself a discrete experience that could be reported only by the pregnant person. These cultural and legal irregularities expose the conditions through which pregnancy occurred and the landscape through which people negotiated their health. They also illuminate how narratives of pregnancy and abortion were not in lockstep. As Laura Gowing asserts, pregnancy’s “inchoate experiences” meant that it was often consciously and unconsciously a concealed matter, rendering what we now perceive as miscarriages, abortions, and other experiences illegible (143). However, this illegibility of pregnancy began to shift in the sixteenth century when the legal system (of which Bridewell was one part) created new terminology for what had been, as Gowing says, “puzzling growths and shapeless matter” (143). Where the culture saw ambiguity, the court sought to define “solid pregnancies, miscarriages and births” and consequentially abortions (142). By fixing terminology, abortion became a problem “of definition” wherein the body became a means to control a pregnant person (142).

Elizabeth Brian’s case captures the Bridewell court crafting the terms of pregnancy to define a criminal situation, assign punishment, and seek restitution. When that pregnancy ends, and the court brings her from the workroom back to the courtroom, the records stress that in light of the matron’s pewter pot “the matter” at hand was “to be further examined before a[nother] Justice.” Indeed, “matter,” here, simultaneously connotes her legal situation and her body’s physical makeup, as the material flesh and outline of her body are up for debate. The record also suggests that the remains of her pregnancy, or any “matter” that she may have miscarried, is also evidence to be assessed. A marginal note alongside the decision to examine the “matter” details that Elizabeth did go on and “confessed the plot” to Sir Stephen Soame, the former mayor of London and President of Bedlam and Bridewell Hospitals. Transforming her testimony into a “confession,” the court characterizes both her and the matron’s actions. They become co-conspirators in a seditious, sinful “plot.” Tenby experiences a kind of punishment, or rather, a penalty for his treatment of Elizabeth, too. He is made to pay for the cost of her imprisonment and ordered to “answer such matters as Elizabeth Brian could object against him” (BCB 5, f.41). He does not, however, endure the investigation that she does. An investigation writes her abuse into the legal record to nullify her autonomy yet preserve her culpability. Legally fixing her pregnancy into a singular narrative, the Bridewell court makes her body so passive, so beyond her control, that it controls her.

Agency has been at the heart of the American discussion of abortion since 1973 when Roe v. Wade decided that choosing abortion was a private matter between the pregnant person and their doctor and protected under the Constitution’s fourteenth amendment. When the Roe court ruled, it relied on trimesters and said that abortion was legally the pregnant person’s choice during the first trimester. After that, the physician’s judgment could decide what the opinion called “viability,” and the state could intervene and place restrictions. Controlling choice consequentially became of utmost importance to the anti-abortion movement post-Roe. The anti-abortion movement argued that social pressures compelled people to seek abortions and right to choose made pregnant people victims of their own wrong choices. As a legal argument, the anti-abortion movement post-Roe argued for what is known as the “medicalization” model, which, as Carol Sanger has shown, maintained that abortion was medical and psychologically harmful and thus subject to regulation in the same way as other medically harmful situations. The anti-abortion movement made “choice” and “medicalization” at odds, inspiring several anti-choice states to try to legally mandate imaging and monitoring technology as a prerequisite to obtaining an abortion, pressuring pregnant people to “choose life,” implicitly commanding the motto that emblazoned billboards, bumper stickers, and protest signs for decades.

Dobbs v. Jackson Women’s Health Organization, the case that has now overturned Roe and ends legal protections to the right to an abortion in the U.S., takes a markedly different stance. During oral arguments in December of 2021, the plaintiffs did not rely on the medicalization model, nor did they insist on pregnant people’s victimization, vulnerability, or precarity. Instead, as Mary Ziegler summarizes, the plaintiffs argue against the more culturally salient view that access to abortion is essential to ensure that women are equal citizens. Roe and the subsequent cases Planned Parenthood of Southeastern Pa. v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) had maintained that privacy over the decision to obtain an abortion ensures that potentially pregnant people are equal citizens. The plaintiffs in Dobbs refute this premise because, in their view, women already “achieved more equal citizenship” in the twenty-first century without abortion access (Ziegler). In this current historical paradigm, they contend, women are free, and thus they must carry to term all pregnancies because that pregnancy has limited bearing on personal liberty. Now that the court has ruled in their favor, and abortion is become illegal in much of the country, discourse on women’s freedom has become the very mechanism of state control. Those who obtain an abortion or help someone get one will be increasingly caught in the crosshairs of shifting terminology, wherein the law rather than the person defines the body’s experiences and state.

As the case of Elizabeth Brian and other in the Bridewell Court Books prove, English common law and the American laws it influenced have a vested history in attempting to control pregnant people by controlling the terms of pregnancy itself. With Dobbs, the court promises a continuation of the centuries-old legal process of seizing the terms of pregnancy and the body from people. Yet, Dobbs also ushers in a new era where the language of “women’s equality” threatens to paper over the court’s own history of using pregnancy to ensure that women and pregnant people are not equal at all.  Women’s rights advocates will be the first to tell you that ending legal access to abortion will not stop people from obtaining them; it will only make that process less safe. They also argue that people have ended pregnancies throughout history, a fact cited in Roe and one that has drawn the ire of Justice Alito, who, in the ruling opinion on Dobbs, criticizes Roe’s claim that British common law did not regulate abortion before the quickening. Alito goes so far as to say that in common law, “abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages” and that “American law followed” that precedent until the nineteenth century, when it became even more restrictive (Dobbs v. Jackson 3). However, what American law, legislation, and advocacy fail to recognize is that British common law created the terms for abortion in the first place.

Courts like Bridewell in the sixteenth and seventeenth century took experiences like Elizabeth Brian’s and made them into linear narratives of conception and termination. They seized women’s testimony in the courtroom, transformed their words into confessions, and created a legal legacy that litigated the body in moral terms. When Elizabeth testifies that she does not remember, does not know, or merely “thinks” that the pewter pot influenced her pregnancy, she evades the court’s desire to know her body and rewrite her experience. Yet, the grammar of the record ensures her passivity as well as her imprisonment, revealing a political practice that subjects her into the national order and provides precedent for others who will come after her. Today, the legal terminology of pregnancy continues to shift in new directions, reshaping the narrative’s contours but fixing its plot points so that the author of the body is the court itself, rather than the people whose bodies the law ensnares.

Image source: Pallas and Arachne, Peter Paul Rubens – Virginia Museum of Fine Arts

Works Cited

Bridewell Court Books (BCB). Brian. Vol 5. f. 30, 41. 1605. Bethlem Museum of the Mind. https://archives.museumofthemind.org.uk/BCB.htm. Accessed 16 May 2022.

Cressy, David. Birth, Marriage, and Death: Ritual, Religion, and the Life-Cycle in Tudor and Stuart England. Oxford University Press, 1997.

Dobbs v. Jackson Women’s Health Organization, 597 U.S. (2022).

Gowing, Laura. Common Bodies: Women, Touch and Power in Seventeenth-Century England. Yale University Press, 2003.

Mendelson, Sara, and Patricia Crawford. Women in Early Modern England 1550-1720. Clarendon Press, 1998.

Mowry, Melissa M. “London’s Bridewell: Violence, Prostitution, and Questions of Evidence.” Violence, Politics, and Gender in Early Modern England, Palgrave Macmillan, 2008, pp. 207–22.

Roe v. Wade, 410 U.S. 113 U.S. (1973).

Sanger, Carol. About Abortion: Terminating Pregnancy in Twenty-first-century America. The Belknap Press of Harvard University Press, 2017

Ziegler, Mary. “Anti-Abortion Groups Once Portrayed Women as Victims. That’s Changing.” The New York Times, 19 Mar. 2022, https://www.nytimes.com/2022/03/19/opinion/abortion-laws-bans-missouri.html?searchResultPosition=1. Accessed 10 April 2022.

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