When the Supreme Court revisits partial-birth abortion on November 8, the history of abortion and infanticide will be front and center. History will be front and center because some justices will want to know — as they have asked in the past — what “interest” the government has in prohibiting partial-birth abortion.
To answer that question, the justices would do well to consult Villanova University law professor Joseph Dellapenna’s encyclopedic new history, Dispelling the Myths of Abortion History. Spanning eight centuries, it tells the history of abortion and infanticide in Anglo-American law from 1200 AD to the Supreme Court’s last abortion decision in 2000. Based on 30 years of research and legal scholarship, Dellapenna has produced a definitive history of abortion, establishing him as the premier historian of abortion and abortion law in the English-speaking world.
Dellapenna is an unusual scholar to mount such a sustained effort. A self-described “lapsed Unitarian,” Dellapenna is somewhat of a modern Renaissance man. Fluent in Mandarin and an internationally renowned expert in Chinese law and water law, Dellapenna has taught at Villanova University Law School for many years. He sees himself as a “moderate” on abortion, and admits that, if he were a legislator, he would vote for a law that legalized abortion in the first 12 weeks of pregnancy.
But Dellapenna’s concern is not the politics of abortion. He rather sets out to provide a faithful interpretation of the history of abortion in English and American law. His aim is to “set the record straight regarding the history of abortion.”
One of Dellapenna’s unique contributions is his attention to technology and the impact of technology on abortion techniques, such as partial-birth abortion. Dellapenna’s scholarship shows why Anglo-American legal standards going back centuries (before Roe v. Wade) would treat partial-birth abortion as infanticide. The child is drawn into the birth canal, in the process of being born, before it is killed. Historically, birth (at any time of pregnancy) has been the line between abortion and infanticide, and partial-birth abortion breaches that line.
But partial-birth abortion is only one of many issues that Dellapenna covers. He conducts an exhaustive review of abortion techniques attempted in the 17th and 18th centuries, compiling extensive data to show that they were largely ineffective or fatal or both. This helps rebut the claim that abortion was a “common practice” in Anglo-American history.
One riddle that Dellapenna solves is why so many ineffective techniques were so widely accepted in folklore for centuries: Since medical science was so primitive, and the determination of pregnancy so uncertain, various “techniques” could be connected to the disappearance of virtually any symptom of pregnancy. Dellapenna’s exhaustive review of abortion techniques shows that, in fact, they were so dangerous that they made abortion (aimed at ending the pregnancy) rare. As a result, infanticide (killing the infant after birth) was the method of choice until the verge of the 20th century.
Dellapenna evaluates the reaction to the Roe decision in America in the 1970s and 1980s. He thoroughly examines the Supreme Court’s Casey decision in 1992, which abandoned the historical rationale in Roe and shifted the justification to sociology (the need for a backup to failed contraception). He then looks at abortion in the Clinton era, and ends at the year 2000.
The book is an exhaustive critique both of the Court’s rationale for creating a right to abortion in Roe and of the pro-abortion historians who have sought to devise alternative historical rationales for Roe. It completes the scholarly demolition of Justice Blackmun’s opinion in Roe, and serves to debunk myths about abortion in pre-Roe America.
In the final two chapters, Dellapenna examines the significance of history for the current debate over abortion. Since there is a fine line between being definitive and overreaching by trying to comment on many centuries of social history and data, reasonable people will disagree as to whether Dellapenna completely succeeds. But it is precisely in its definitiveness that his book provides the scholarly foundation coming to terms with the history of abortion jurisprudence. Misconceptions about this history have penetrated the American psyche so deeply that they greatly distort public opinion on related policy questions.
Yet this book will not satisfy activists on either side of contemporary abortion debates Dellapenna is an even-handed critic of both pro- and anti-abortion historians. He does not shy away from open criticism when he believes that their accounts do not square with the historical facts.
He concludes with a sustained plea for returning the abortion issue to the democratic process. “We in the U.S. should consider the approach of most other western democracies: Leave abortion to legislative action in a search for an accommodation of the competing interests in a statute that can command sufficiently broad support to quiet the controversy.” After making a mess of the abortion issue for the past 33 years, the Court would do well to seriously consider this too.
– Clarke Forsythe is an attorney and Director of the Project in Law & Bioethics at Americans United for Life.