Jeffrey Toobin starts his New Yorker brief against the Stupak amendment with a quick sketch of the history of abortion. “Abortion,” he begins, “is almost as old as childbirth. There has always been a need for some women to end their pregnancies.” This claim is at best misleading. Joseph Dellapenna’s comprehensive history of abortion goes to some trouble to show that before the nineteenth century, abortion was rare because the available methods were ineffective, dangerous, or both.
Toobin continues, “In modern times, the law’s attitude toward that need has varied. In the United States, at the time the Constitution was adopted, abortions before ‘quickening’ were both legal and commonplace, often performed by midwives.” This claim is false. The danger and ineffectiveness of available methods of abortion, the high birth rates of the period, and the high proportion of pregnant brides during the era all tell against Toobin’s conclusion. James Mohr’s Abortion in America, the most authoritative history before Dellapenna’s, concluded that abortion was “fundamentally a marginal practice.” Other historians have reached the same conclusion.
How could Toobin have gone so far astray? I have a strong hunch. Toobin’s argument tracks pretty closely with that of a legal brief submitted to the Supreme Court in 1989. That “historians’ brief,” submitted in the name of several hundred historians, was very influential. Ronald Dworkin and Laurence Tribe, for example, wrote books on abortion that relied on the brief for their historical sections. But the brief was a fraud: It falsified the sources on which it purported to rely, and it contradicted the published work of many of the signatories. (I wrote a chapter on the fraud in my book about abortion and related issues.)
Judging from Toobin’s New Yorker article, that fradulent history is influential still.