Correcting Roe’s Flawed Revision of Abortion History
In the leaked Dobbs draft, Justice Samuel Alito comprehensively debunks Roe’s contention that the ‘right to abortion’ is ‘deeply rooted in this nation’s history and tradition.’
The 1973 Roe v. Wade case that legalized abortion in the U.S. painted an inaccurate picture of abortion at the time the 14th Amendment was adopted, according to Justice Samuel Alito’s draft opinion overturning Roe.
More than half of Alito’s 98-page draft opinion, in the pending Dobbs v. Jackson Women’s Health Organization case, explores the history of U.S. abortion law in order to establish that the “right to abortion” is not “deeply rooted in this nation’s history and tradition” as it would have to be in order to be protected by the Due Process Clause of the 14th Amendment. He wrote that “until the latter part of the 20th century, such a right was entirely unknown in American law.”
In his discussion of the history of abortion law, Alito cited Joseph Dellapenna, Villanova Law professor emeritus and author of Dispelling the Myths of Abortion History who filed an amicus brief in the case.
Dellapenna told the Register that Roe gave “an argument about the history of abortion in order to come up with a conclusion that there is an unenumerated right to choose abortion that is protected by the Constitution.” Justice Harry Blackmun devoted “between a third and a half” of his Roe opinion rooting “the idea that there is a constitutional right to choose to abort in his version of the history.”
In the Roe decision, Blackmun wrote, “it is undisputed that, at common law, abortion performed before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy was not an indictable offense.” He also concluded that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”
In contrast, Alito wrote that under 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 the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”
Abortion in the Common Law
Dellapenna said there are many examples of the common law restricting abortion throughout pregnancy. He noted that Blackmun’s source for his claims was Cyril Means, a professor at New York Law School who was also the general counsel for the National Association for the Repeal of Abortion Laws (NARAL). As is apparent from his connection to NARAL, Means was hardly an unbiased historian. During the court proceeding for Roe, the legal team for the anonymous “Jane Roe” plaintiff circulated an internal memo admitting that Means’ “conclusions sometimes strain credulity” and “fudge” the history, but are useful because they “preserve the guise of impartial scholarship while advancing the proper ideological goals.’”
Dellapenna said when Roe was handed down in January 1973, he was “curious about this history that Justice Blackmun so heavily relied on,” but it became apparent to him that “whatever the historical truth was he wasn't interested in telling it.” He said that after questions arose about Means’ historical account in Roe, he set out to recover the history of abortion in the common law world and found “abortion cases in the colonies going back to the 1640s in Maryland and later dates in other colonies.”
Alito cited some of the cases listed in Dellapenna’s book in his opinion and also quoted famed 18th-century English jurist William Blackstone who “explained that abortion of a ‘quick’ child was ‘by the ancient law homicide or manslaughter’” and “at least ‘a very heinous misdemeanor.’” Alito wrote that “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime” and noted that “manuals for justices of the peace printed in colonies in the 18th century typically restated the common law rule on abortion.”
Alito concluded that “although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.”
The ‘Quickening’ Distinction
Dellapenna also said the claim that “abortion was only criminal in the common law after quickening” was a “false narrative,” as statutes from the early 1800s call abortion “a crime of a woman quick with child” — a term that was not the same as quickening. “It's a late confusion or worse to equate ‘quick with child’ with quickening,” he said. “Quick simply means alive.” Dellapenna cited Henry de Bracton, an English jurist writing in the 13th century who “was the first legal text writer on abortion” and used “formed and animated,” noting that “we get the word ‘quick’ from animated...It means ‘alive.’”
Dellapenna said “the early abortion statutes do not say quickening, they say quick with child,” meaning “a live child. She could have a live child before quickening.”
He referenced a common law case from the 1200s where “the mother was attacked by two men who beat her with sticks until she aborted and nearly died and the baby was delivered. The baby was, according to the report of the case, of one month gestation. That couldn't possibly have quickened. ...The men involved were convicted of homicide and the homicide was the homicide of the child,” so there's “pretty clear, unambiguous evidence that quick child does not mean quickening,” or movement by the child.
Justin Dyer, professor of political science and director of the Kinder Institute on Constitutional Democracy at the University of Missouri and author of Slavery, Abortion and the Politics of Constitutional Meaning, told the Register that his understanding of quickening was that “to the extent that that it actually did mean something like felt fetal movement” and “mattered for abortion prosecutions, it was based on evidence for the presence of life and then that some act was the cause of death, it was not — as the way that it's been commonly framed — some kind of marker in pregnancy, at which point anything before that made abortion licit or actually protected as a liberty or a common law right of some sort.”
Justice Alito wrote in a footnote in his opinion that “the exact meaning of ‘quickening’ is subject to some debate” but that “it suffices for present purposes to show that abortion was criminal by at least the 16th or 18th week of pregnancy” and that “during the relevant period — i.e. the period surrounding the enactment of the Fourteenth Amendment — the quickening distinction was abandoned as States criminalized abortion at all stages of pregnancy.”
Dellapenna also contended that contrary to any notion that women were widely successful in quietly obtaining abortions pre-quickening, “until sometime in the late 1700s, there was no safe way to do an abortion. Abortion was tantamount to suicide if it were voluntary.” There was “evidence through history in Europe and elsewhere around the world of infanticide and relatively little evidence of abortion until the late 1700s,” he said.
He said that while pro-abortion rights historians will point to records of herbal methods to back claims about abortion being common, that didn’t mean these methods were effective or safe. What he found was that these methods were “either utterly ineffective like parsley or garlic” or “all too effective,” working “not by attacking the fetus or the embryo,” but “by debilitating the mother. In other words, killing her or nearly killing her so she loses the baby.”
A recent Washington Post article looking at Alito’s historical account noted that of the plant extracts believed to induce abortion “savin, which comes from juniper bushes, was particularly effective and also plentiful in the United States. But it came with high risk; too much could be lethal to the woman.” The article also noted the “prevalence” of infanticide, quoting British historian Kate Lister who “found numerous British trial records for women accused of killing their newborns; between 1700 and 1800, there were 134 of these cases in a single London court.”
Another element at play in the Supreme Court’s examination of abortion history since Roe was the willingness on the part of some historians to back Roe’s historical narrative.
Dellapenna pointed out that in the 1989 Supreme Court case Webster v. Reproductive Health Services, there was an amicus brief signed by 281 historians attesting that as “the Court demonstrated in Roe v. Wade, abortion was not illegal at common law” and, “Through the nineteenth century, American common law decisions uniformly reaffirmed that women committed no offense in seeking abortions.” They also contended that concern over unborn life “became a central issue in American culture only in the late twentieth century.”
The brief’s lead author, Sylvia Law, a law professor at New York University, wrote in an article afterwards that one of the brief’s objectives was “to support a political mobilization of pro-choice voices.” She acknowledged “a tension between truth-telling and advocacy,” admitting to “most serious deficiencies as truth-tellers” on the part of the historians involved in the brief. An example of this that she gave was the failure of the briefs’ authors “to grapple with the fact that most 19th-century feminists supported laws restricting access to abortion.” She said the “silence is distorting” and added that there are also “other distortions of the truth which are not simply a function of page limits or inability to agree, but rather flow from the advocacy form.”
James Mohr, now a professor of history at the University of Oregon, who signed on to that brief, acknowledged afterwards that the brief was a “political document.” The brief seemed to contradict his own past work.
While he acknowledged in his book Abortion in America that abortions were illegal after fetal movement, the brief stated that “the Court demonstrated in Roe v. Wade, abortion was not illegal at common law.” And while the brief asserted that “19th-century laws restricting access to abortion were not based on a belief that the fetus is a human being,” Mohr wrote that in the 19th century, “physicians felt very strongly indeed on the issue of protecting human life. And once they had decided that the human life was present to some extent in a newly fertilized ovum, however limited that extent might be, they became fierce opponents of any attack upon it.”
In 1990, Mohr told Notre Dame law professor Gerard Bradley that “where inconsistencies exist he stood by the book rather than the brief, and he confessed that he was uncomfortable with the way his work was cited for some of the brief’s claims.”
In his draft Dobbs opinion, Alito pointed out issues he took with the amicus brief filed by the American Historical Association and their “weak” response to the fact “by 1868 when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.” The historians argued that Horatio Storer, a physician and proponent of strengthening anti-abortion laws, was motivated with his allies at the American Medical Association by the belief that “abortions were endangering what he saw as the ideal America: a society of white Protestants in which women adhered strictly to their proper ‘duties’ — marriage and childbearing.”
In response, Alito wrote, “recall that at the time of the adoption of the Fourteenth Amendment, over three quarters of the States had adopted statutes criminalizing abortion (usually at all stages of pregnancy), and that from the early 20th century until the day Roe was handed down, every single State had such a law on its books. Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women? There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point.”
- roe v. wade
- harry blackmun
- samuel alito
- Dobbs v. Jackson Women’s Health Organization
- joseph dellapenna