HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, January 17, 2022

Indictability of Early Abortion c. 1868

John Finnis (University of Oxford), Robert George (Princeton University), Indictability of Early Abortion c. 1868, SSRN (2021):

Aaron Tang posted on Sep. 13, 2021 "The Originalist Case for an Abortion Middle Ground," arguing that "originalist pro-life advocates," including the present authors in our amicus curiae Brief in the Dobbs case, have made significant mistakes in assessing how many states in 1868 criminalized elective abortion at all stages of pregnancy. When the historical facts about the various statutes and cases are correctly reported and understood, the number of such states must, he argued, be reduced from 27 to 15 – from a clear majority to a minority of the then 37 states. Pro-life advocates had mischaracterized 12 states. His paper was immediately very widely circulated, and called for a response, however preliminary. So on Sep. 20 we posted on SSRN "A Preliminary Rejoinder to Aaron Tang," arguing that the first five we looked at from his list of 12 turn out not to have been mischaracterized by pro-life advocates or us, but by Professor Tang.

On Sep. 23 he posted a revised version incorporating a 7-page reply to many of the criticisms our "Preliminary Rejoinder..." had made.

Accordingly, we have appended a Further Addendum, responding to his replies, and carrying right through to completion our survey of all the 12 state abortion statutes his article sought to re-characterize as permitting "pre-quickening" elective abortions. We have given this greatly expanded version a new title (above), but for the convenience of readers we have incorporated the whole Preliminary Response – everything before the Further Addendum – and left it entirely unaltered, including the page numbers. Only pp. 22-73, the title, this Abstract, and the Summary of Results and table of Contents are new.

The Preliminary Response incidentally explained some key features of our Brief, and includes a final section (pp. 17-18) on a truer "middle ground or middle way."

The result, when all 12 states (plus a few others) are examined, is the same as when we called a halt to our Preliminary Response after examining four (plus one other: see p. 1, Prefatory Note). In all 12 instances – as well as, revealingly, in another three – it is Professor Tang who has mischaracterized the states and their laws. The pro-life count is intact. Indeed, it should be raised from 27 to 28, since virtually all concerned have (as Tang agrees) been overlooking one of the then 37 states.

Along the way, we identify some quite general historical misrepresentations or misunderstandings that Tang – not without novel mistakes of his own – broadly shares with the late Cyril Means, a law professor and abortion activist whose deeply flawed historiography was relied on by Justice Harry Blackmun in his opinion for the Court in Roe, and then recycled by James Mohr: above all, the presumption that what was not directly or per se subject to criminal sanction ("indictable") was therefore legal and indeed a matter of right, and even regarded by the constitutionally relevant public as morally acceptable – a profoundly mistaken presumption.

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