Leslie Reagan writes that Justice Alito has the history of abortion all wrong in his draft opinion in Dobbs, but she is an entirely unreliable guide to that history. I think she is comprehensively wrong — if you read my article on the longstanding effort to rewrite the history of abortion in a way that’s helpful for Roe v. Wade, you’ll get a sense of how her account is distorted — but in this post I’ll zero in on a misrepresentation that is easy to demonstrate.
She writes,
The first laws in the United States governing abortion, passed by states in the 1820s and 1830s, banned the furnishing of drugs — “poison” — intended to induce a miscarriage of a “woman, then quick with child.” The first such law in Connecticut aimed to punish men who seduced women then, instead of marrying them when pregnancy developed, coerced them into using abortifacients. These first laws were essentially poison control measures intended to protect women from both abusive men and the sometimes-deadly herbs and medicines marketed to bring on their menses.
These first laws also referred only to inducing miscarriage after quickening. It is essential to recognize that these laws did not criminalize drugs used before quickening. The nation’s earliest laws assumed the existing common law right of women to regulate their menses — and to abort early pregnancies.
You could make a case — a contestable case, but a case — for the accuracy of Reagan’s description of Connecticut’s 1821 law. (The chief flaw in that description is that refraining from criminalizing pre-quickening abortion is not equivalent to recognizing it as a right.) You can’t possibly make the case that she is giving an accurate description of New York’s 1828 law, which applied not only to poison but to the use of any “means whatever” of causing an intentional miscarriage, and imposed fines or imprisonment or both without regard to whether the offense took place before or after quickening. Or of Ohio’s 1834 law, which also applied to any means of abortion and imposed penalties on abortion at any stage of pregnancy. Or of Indiana’s 1835 law, which applied to all means of abortion and made no reference to quickening. Or of Maine’s 1840 law, which applied to all means of abortion and even specified that it applied whether the child “be quick or not.”
You can’t trust Professor Reagan even on easily checked matters pertaining to the history of abortion. Politico, like the New York Times last month, shouldn’t trust her on that subject at all.