Tuesday, May 3, 2022
There are many things to challenge in the Supreme Court’s leaked draft opinion in the abortion case of Dobbs v. Jackson Women’s Health Organization. Including its rigid application of the standard that fundamental rights recognized as “liberty” within the context of the Fourteenth Amendment’s Substantive Due Process Clause must be “deeply rooted in the nation’s history.” Yet even taking the Court’s standard and definition of that standard at face value—the Court, I think, gets the legal history wrong.
In ascertaining what it views as the relevant history, the Court looks to a few reported English opinions from 1600 and 1700 and American criminal statutes passed after 1868. This gap speaks volumes. For what existed in the gap of early America between its earliest organization around 1776 to a century later, was an accepted practice of permitting abortions until quickening. Quickening is about four or five months, or just after the end of the first trimester. This was the line of demarcation Roe recognized in recognizing a woman’s fundamental right to choose an abortion in the first trimester, unregulated. This is even the same basic idea of new conservative fifteen-week abortion bans as in Dobbs itself, recognizing something different about that early period of pregnancy.
The leading sources on this legal history are James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979) and Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992). I have done some historical work here as well, focusing on the women’s movement for “voluntary motherhood” in the nineteenth century recognizing women’s right to choose not to be pregnant. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Many of Justice Alito’s own sources in the appendix support this point, showing that the early prohibitory statutes were for a “woman quick with child.” Other statutes applied to a “pregnant” woman, and the historians explain how prove a woman was “pregnant” required physical evidence such as a showing or knowledge such as quickening. The absence of menstruation was insufficient, as women know, because periods can be missed for physical and mental stress, hunger, physical illness, nursing, among many others.
Justice Alito addresses this significant period of time only briefly. He says: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.” But this statement shades the point. The subcontext here is the perceived difference between a right and a liberty. They are essentially similar, although some distinction has been made between a “right” that is an affirmative guarantee versus “liberty” which is a freedom unrestrained. The words have also taken on a politicized meaning, with right used by liberals and liberty by conservatives and libertarians. So note Justice Alito’s careful choice of the word right here. He is stating that there was no affirmative guarantee of abortion in the law. That is true. Just as there was no affirmative guarantee of related family rights like marriage, parenting, and procreation. But of course the operative constitutional text is “liberty.” Pre-quickening abortion was a liberty, a freedom permitting the practice unrestrained by law. Such social rights happened in social history, even if they were not embodied in express law. The restraint on these social liberties came historically later in time and later in a pregnancy. Thus, there is a strong argument that a century-long common practice of pre-quickening abortion does establish that it was “deeply rooted in the nation’s history”