The justices should finally correct the record.
The justices should finally correct the record.
A discussion of the history of abortion law occupied several minutes of the oral argument before the Supreme Court last Wednesday. Much of what was said was false or misleading.
Julie Rikelman, the lawyer for the clinic challenging Mississippi’s ban on abortion after 15 weeks, gave voice to that misinformation under searching questioning from Justice Samuel Alito. But she did not come up with it herself. A fake and sometimes fraudulent version of history has been a staple of abortion advocacy since the 1960s.
Justice Harry Blackmun’s opinion in Roe v. Wade claimed that abortion early in pregnancy was indisputably a common-law liberty at the time of the Founding, that it may have been a liberty throughout pregnancy, and that its eventual prohibition did not reflect a belief that it unjustly kills a human being. Rikelman made a version of the same argument: “There was a tradition under the common law for centuries of women being able to end their pregnancies,” and states later “discard[ed] the common law . . . because of a discriminatory view that a woman’s proper role was as a wife and mother.” When Justice Samuel Alito asked her whether it can be “said that the right to abortion is deeply rooted in the history and traditions of the American people,” she therefore answered yes.
Blackmun based his claims largely on one researcher, Cyril Means Jr., whose work has been thoroughly discredited. Many writers have worked to uncover the truth of the matter from layers of error and fraud that have accumulated from Means’s time to the present. (I summarized the story in NR’s special issue on Roe.) That truth: We have records of prosecutions for abortion going back at least to the 13th century in England and the 17th century in what were then the American colonies. The campaign to prohibit abortion in the 19th century was motivated above all by the belief, bolstered by recent scientific advances, that a living human organism exists from his or her conception onward.
The only foothold in reality for Rikelman’s argument is that some courts and common-law writers held that abortion could not be prosecuted early in pregnancy, before “quickening.” But even this point has important qualifications, and the full history offers no support for the notion that abortion was a common-law liberty.
First, other courts and common-law writers disagreed, and some of the case records (e.g., the 1652 prosecution of Captain William Mitchell in Maryland) do not indicate that any legal or moral importance attached to quickening.
Second, even those authorities who held that abortion before some stage of pregnancy could not be indicted did not agree on where the line fell. Some believed indictments could be brought in cases involving a “quick child” — that is, a child who was alive under the contemporaneous understanding of biology, around the seventh week of pregnancy; others that “quickening,” a mother’s perception that the child was stirring in the womb, was necessary, which meant prosecutions could be brought only after 16 to 18 weeks.
Third, even courts that held that prosecutions against abortion early in pregnancy could not be brought did not treat those abortions as a right, a liberty, or lawful — and they certainly did not treat them as a right in the sense that the Supreme Court has in recent decades. Take as an example the 1845 Massachusetts court case cited by Blackmun for the proposition that early abortion could not be punished. That court explicitly stated it was “an act done without lawful purpose,” and noted that if the mother died from an abortion attempt her consent to the procedure would not constitute a defense against the charge of murdering her. Authorities that treated early abortion as impossible to prosecute nevertheless held that murder could be charged against the taking of drugs or potions at any stage of pregnancy if a child were later born and then died as a result of the act.
Fourth, common-law commentators suggested that legal distinctions based on quickening may have entered the law because of evidentiary issues compounded by the state of scientific understanding of the time. That’s one way of making sense of the live-birth rule: Prosecutors would have difficulty proving that a child had been alive early in pregnancy and then died as a result of some method of abortion; some of those difficulties disappeared if an infant were born and then died as a result of the earlier action.
Rikelman cited two authorities in support of her assertions. One was Roe itself. She mentioned a footnote in a 1997 Supreme Court decision that mentioned that Roe’s historical findings had been crucial to its conclusion that a right to abortion was “deeply rooted in this Nation’s history and tradition” — a point that, in light of the shoddiness of Roe’s historical account, strengthens the case for overruling it.
She added, “There’s also a brief on behalf of several key American historian associations that go through that history in detail because there’s even more information now that supports Roe’s legal conclusions.” The brief in question actually advances weaker historical claims than the ones Blackmun made. It does not dispute that abortion after quickening was illegal, or that a concern about fetal life was a motive for the tightening of abortion laws in the 19th century. It merely tries to downplay this motive, abusing its sources in the process (an example is detailed here). It does not explicitly assert, either, that abortion was ever a right.
Roe’s history was always dubious, as the winning legal team in the case understood. The evidence that has come out since then has done far more to discredit than to support its assertions. The right to abortion is not deeply rooted in America’s history or tradition. In the world of legal advocacy of abortion, on the other hand, misrepresenting that history is a very deeply rooted tradition.