Lawrence Hurley writes for Reuters about the debate over the historical claims in Roe v. Wade and in Justice Alito’s February draft opinion in Dobbs. The strongest point that he mentions from the pro-Roe side is this one: “A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 ‘nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening.’”
It’s that side’s strongest point in that it might well be true. I’m not checking on it, though, because even if true it wouldn’t be a datum that bears on the question of constitutional meaning before the Supreme Court. What the historians’ brief Reuters is quoting concedes, albeit quietly, is that 26 states of the 37 states in the Union during the year the 14th Amendment was ratified banned abortion at all stages of pregnancy. That’s enough to show that abortion was not considered a right, just as Justice Alito contends.
I wrote about that brief last fall:
The brief also tries to make something of the fact that some . . . statutes, while prohibiting abortion throughout pregnancy, imposed lighter penalties on it early in pregnancy. But legislators could reasonably have believed that late abortions were more culpable, and more dangerous to mothers, without compromising their belief that all abortions were wrongful deprivations of the right to life. The brief aims, of course, to prevent legislators from making any such moral judgments and practical determinations.