Disputing Justice Alito's View of History in the Dobbs Draft Abortion Opinion

Glad to have my work help inform the discussion of this issue of the history of abortion law and practice at the center of the draft Dobbs opinion.

Lawrence Hurley, U.S. Supreme Court: Justice Alito's Abortion History Lesson in Dispute, Reuters

Justice Samuel Alito's draft U.S. Supreme Court ruling that would overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinges on a contested historical review of restrictions on the procedure enacted during the 19th century.

 

Lawyers and scholars backing abortion rights have criticized Alito's reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman's constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.***

 

His reasoning was that a right to abortion was not "deeply rooted in this nation's history." Alito relied upon a reading of state laws on the books in 1868 when the U.S. Constitution's 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the U.S. Civil War and the end of slavery.

 

To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.

 

Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation.

 

Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists.

 

"We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.

 

A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."

 

Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.

 

University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening.***

 

David Garrow, a legal historian, said lawyers on both sides of the abortion debate have disregarded the practical reality that the procedure was commonplace even in states where it was banned when the 14th Amendment was added and that criminal prosecutions were rare.

 

"If you wanted to argue that abortion is deeply rooted in American history you don't argue about state statutes," Garrow said. "You argue about the evidence of demographic reality."

Tang's article is here: The Originalist Case for an Abortion Middle Ground

This understanding plausibly supports a narrower abortion right. As of the founding, every state respected the right to abortion before quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy. To be sure, some states took a different view by the time of the Fourteenth Amendment’s ratification, punishing pre-quickening abortion due in part to misogynistic views of women’s proper “role” in society. But contrary to both the received scholarly wisdom and Mississippi’s claim in Dobbs, this Article shows that this was only a minority position among the states. As of ratification, 21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding. In other words, throughout America’s early history, pregnant people in most states enjoyed a right to abortion during roughly the first 15 weeks of pregnancy. This is the originalist case for an abortion middle ground.

David Garrow's book is Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade

The amicus brief by the historians and the American Historical Association is here.  Alito had the information he needed to include the full history, but did not. 

This brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective.***

 

The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.***

 

These central claims were accurate in Roe and remain so today. In the five decades since Roe, our ability to confirm this history has grown through the digitization of historical newspapers and records. These records show that the influence of the common law persisted even as states slowly began to create laws of their own.

 

Newly accessible historical evidence further refutes any claim that, from the adoption of the Constitution through 1868, our nation had a settled view on the criminality of abortion.

Instead, Alito relies on the work and amicus brief of a sole individual, law professor Joseph Dellapenna, an expert on water rights, who wrote the anti-abortion advocacy book, Dispelling Abortion Myths (2006).  In the prologue to the book, "A Personal Aside," Dellapenna describes the work as an "argumentative book," based on his personal belief that abortion should be banned at 8 weeks, and coming from his experience as "a white man who has fathered at least five children," who offered a different view than "politically correct women." Dispelling, at ix, xii.

Dellapenna's brief also cites an anonymous newspaper article from the women's rights paper, The Revolution, commonly invoked by anti-abortion groups like Feminists for Life that incorrectly attributes an unsigned blurb to women's rights pioneer, Elizabeth Cady Stanton.  I have literally written a book, as well as an article, disputing this attribution to Stanton and any support from her for the anti-abortion laws.  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).