When the case of Dobbs v. Jackson Women’s Health Organization was argued in the United States Supreme Court, Justice Samuel Alito asked the attorney for Jackson Women’s Health, Julie Rikelman, “Can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?” Rikelman responded, “Yes it can, Your Honor. At the founding women were able to end their pregnancy under the common law . . . and well into the 1800s women had the ability to end a pregnancy.” Chief Justice John Roberts asked a similar question to U.S. solicitor general Elizabeth Prelogar, who gave a similar response: “At the time of the founding and for most of early American history, women had an ability to access abortion in the early stages of pregnancy.”
However, a recent article in the Harvard Journal of Law and Public Policy soundly refutes any claims to abortion rights as part of the history, tradition, and/or common law of the United States. The authors, Stephanie Nicole Miller and Mary Kay Bacallao, researched the issue using the Corpus of Founding Era American English. COFEA is a digitized database drawing from over 126,000 texts totaling over 136 million words commonly read from the period beginning with the reign of King George III and ending with the death of George Washington.
To summarize the article, the term “abortion” was most often used as a synonym for miscarriage. Indeed, only twelve examples could be found where the term was used to describe a voluntary termination of a pregnancy. Not one of those twelve examples referred to any common-law right to intentionally terminate a pregnancy.
Since the leak of the draft majority opinion (arguably the most serious breach of security, decorum, and ethics since Watergate), it would appear Justice Alito was not convinced by either Rikelman or Prelogar’s answer to this question. The inaccuracy of the response notwithstanding, the attempt to characterize abortion as a right recognized in the common law, tradition, or history of the Founding era may be even more demonstrative of a larger truth. The end of the “living document” era is nigh.
In the past, attempts to insert rights not found in the text of the Constitution would likely have responded to questions about the history and tradition of the United States by asserting that its authors could not have possibly anticipated all the problems of modern society, the necessary means of addressing them, or the ever-changing cultural norms of an increasingly diverse population.Hence, the living document must evolve to reflect a common understanding of its text today even if that understanding conflicts with that of the authors. The closest to the text these theories come is in Justice William Douglas’s “penumbras and emanations” of the Bill of Rights. This method of constitutional interpretation is akin to shaking the Magic 8 Ball until one’s desired response appears.
When the U.S. Supreme Court publishes its official decision in the Dobbs case, assuming the published opinion hues closely to the draft opinion, the battleground will shift to the policy-making branches of the state and federal legislatures. The era of abortion in America may not be over, but the debate over the textual interpretation of the Constitution may be. We’re all originalists now.
Lathan Watts is the vice president of public affairs for Alliance Defending Freedom.