Sex, relationships, and family are not only intimate concepts defined through personal experience; they are also public institutions shaped by a mosaic of laws and societal influences. In the past century, these institutions have undergone radical change as feminist, racial, and queer activism secured new protections from courts and legislatures. However, as these protections expanded, reactionary movements also pushed back to prevent the redefining of intimate relations, a circumstance once more exemplified in the Supreme Court’s Dobbs decision rolling back judicial restrictions on anti-abortion laws.
History offers critical lessons in understanding the present as well as in organizing for the future. As abortion bans – prior to Dobbs not seen in 50 years – spread across much of the country, it is especially important to examine previous perspectives on the institutions of intimate relations; through these perspectives we can better understand the shape of today’s institutions and what activism succeeded to define them. With this in mind, this article fleshes out the development of contemporary American intimacy institutions by exploring the fall of heartbalm torts – once-abundant civil claims to redress romantic wrongs – through Black feminist, queer, and abolitionist lenses.
Part One: The History of Heartbalm Torts and American Family Law
“Heartbalm” torts are a category of civil wrongs having to do with fraudulent or furtive conduct in romantic relationships – cheating on a spouse (criminal conversation), interfering in a marriage (alienation of affection), breaking a promise to marry (breach of promise), or influencing an unmarried girl to have sex (seduction), for example. Coming from old English common law, heartbalm torts are based upon the patriarchal concept that women are the property of their fathers and husbands. These torts necessarily assume that a man loses monetizable value when his wife or daughter has or refuses sex against his will. Furthermore, by creating a right of action against the third party who “leads the woman astray” rather than the straying woman herself, they imply that women lack their own will, mere vessels of other people’s intentions.
Heartbalm torts belonged to a system of institutions defining intimacy, marriage, and gender in a specific way. Central to this system was the idea of coverture: the absorption of a woman’s legal personhood into that of her husband. Presumed not to act or think on her own, the law imposed obligations on a woman’s husband to provide physical and emotional care. The ideal intimate relation was one performed entirely inside marriage, with a husband responsible for his wife and children, who were totally obedient to his will. Departure from this ideal was humiliating to a family, if not criminal. Thus, when a woman’s intimate relations did depart, heartbalm torts were there to compensate the men of her family unit for their reputational loss.
As patriarchal as these torts are, they are not without benefit to the women living under the intimacy institutions of the time as well. Often, a woman’s marriageability was her primary capital, so breach of promise and seduction actions offered her relief when a bad-faith actor diminished that capital. Additionally, civil court offered a forum for restored dignity through its laxer evidence standard and different definition of wrongdoing at a time when criminal conviction of rape was incredibly difficult to achieve.
However, heartbalm torts did not offer their limited suite of protections to everyone. Critical to their construction was the idea that the beguiled woman was once “pure,” a characteristic that was historically exclusive to white womanhood. And of course, civil court is only available to those who can afford to use it. Heartbalm torts thus served to protect one kind of family: a white, propertied household in which a husband owned his wife.
Part Two: The Fall of Heart Balm Torts and the “New” American Family
Due to feminist – and later, queer – activism, American law regarding marriage and other intimate relations has changed dramatically in the past century. States passed laws allowing married women to own property independently of their husbands. The Supreme Court defended sexual autonomy with its decisions in Eisenstadt v. Baird and Roe v. Wade; it disavowed the idea that women were inferior or even belonged to a “separate sphere” in its Reed v. Reed decision. The lower and state courts followed suit by transforming old doctrine to be gender-neutral, and striking down laws that criminalized intimate relations that deviated from the norm.
Concurrently, heartbalm torts were being slowly abolished, sometimes citing the inconsistency of the tort with new feminist attitudes and sometimes appealing to dramatized and subtly anti-feminist stories of extortion via civil suit. Regardless of how they ceased to be, most states agreed: the New American Family did not include an entitlement of one spouse to the sexuality of the other.
Some states retained the torts by reshaping the doctrines to align with contemporary ideas about sex equality. Reformed, the heartbalm tort is imagined as a tool for righting economic wrongs that happen in the not-quite-contractual marital relationship.
However, while federal law may not permit explicit sex inequality, through the differential mosaic of law defining intimacy, states may preserve differential social norms upholding archaic ideas about the family. A number of states still have criminal law forbidding intimate relations outside of the marriage ideal, though they now enforce them through civil consequences, if at all. Laws about child support and property distribution are also key sites for shaping intimacy norms.
States with preserved heartbalm torts have notable overlap with states restricting abortion access and those with sodomy laws still on the books, indicating that archaic ideas about proper intimacy still exert force in the institutions of those states. In Mississippi, for example, supreme court Justice Smith in Bland v. Hill defended the court’s use of the alienation of affection tort, saying “[w]hile I agree that it appears society’s moral values have changed during modern times, I do not believe Mississippi should get aboard this runaway train. I would also not take away an offended spouse’s only legal means to seek redress in our courts for the wrongful conduct of a third party who wilfully and intentionally interferes in and aids in destroying a marriage.” Here, the tort is a site upon which change can be resisted and “traditional values” re-emphasized.
Part Three: Lessons for Then and Now
In the immediate aftermath of the abolition of slavery, the prison system was coopted to preserve the institution by another name; in so doing, the violence of the previous system was maintained without the balancing protection of a property interest in the individual enslaved person, resulting in a system criticized as “worse than slavery.” The racial stereotypes undermining non-white access to court protection of the self and the family also persist, now made invisible through implicit bias.
As feminists made strides securing individual rights for women, the harmful institution of coverture – where a woman’s legal identity was subsumed into that of her husband – was abolished; gone with coverture went a husband’s duty to care for his wife, leaving stay-at-home wives without a right to support nor a skill to enter the workforce with.
These stories – and that of the largely abolished heartbalm tort – serve to highlight the importance of caution while dismantling oppressive systems. Without addressing the root ideas of those systems, reactionary policies rush to fill the space of abolished laws. Where reactionary policy can establish itself, the vulnerable are further victimized.
In the dissents of Roe v. Wade and Casey v. Planned Parenthood, the dissenting justices make note of the ongoing national debate over abortion. Taking the lesson from the abolition of slavery and coverture, one can see these decisions as the fragile protections they are. Like in the aftermath of the abolition of slavery and coverture, the formal policy of justice was functionally ignored; states with abortion restrictions now were already limiting access prior to Dobbs. To really ensure reproductive justice moving forward, the ideas which underpin its ongoing challengers must be eliminated.
Suggested Citation: Alecia Robins, Heartbalm Torts: Solution or Impediment to Modern Reproductive Justice Issues, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 19, 2023), http://jlpp.org/blogzine/heartbalm-torts-solution-or-impediment-to-modern-reproductive-justice-issues/.