Wednesday, September 15, 2021
Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.
It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.
After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.
To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.
h/t Larry Solum