To a greater extent than even most of its opponents realize, the reign of Roe v. Wade has relied from the very beginning on a false and sometimes fraudulent version of history. Justice Harry Blackmun’s majority opinion repeatedly cited slipshod scholarship that was already in the process of being discredited in 1973 and has since been comprehensively de­bunked. The Sup­reme Court has, however, never revisited its mistaken historical claims, which have instead taken on a life of their own in academic work, popular journalism, and legal briefs.

This mythology originated in the 1960s, when a legal academic and abortion activist named Cyril Means Jr. began to claim that abortion had been a common-law liberty at the time of the American founding and for many decades thereafter, and that when states outlawed abortion in the mid 19th century they did so out of concern for its dangerousness to mothers rather than to protect unborn lives.

The legal team that prevailed in Roe was wary of Means. One of its junior members observed in a memo that Means’s conclusions sometimes “strain credibility” and that he was willing to “fudge it as necessary.” Subsequent investigations showed that this assessment was an understatement. Justin Dyer, a professor of political science, has recently drawn attention to one example of the Means method. As evidence that the Founders “did not think that a foetus was a person,” Means cited Samuel Farr’s 1787 treatise on medical jurisprudence, which said that the early human embryo was “not a human creature” and that a newborn with the same shape “would be a monster indeed.” There, though, Farr was talking about the embryo’s appearance. A few pages later, he wrote plainly that because “unborn embryos . . . may be supposed indeed from the time of conception, to be living animated beings, there is no doubt but the destruction of them ought to be considered a capital crime.”

The doubts voiced in the memorandum did not keep its author from writing that Means’s technique might be right when “the important thing is to win the case no matter how.” It worked. Blackmun cited Means in six of Roe’s footnotes, using the activist’s historical inventions as his principal evidence that abortion may have been allowed at the time of the Founding and that later restrictions may not have been designed to protect unborn lives. These were building blocks of Blackmun’s argument that unborn children did not qualify for the protections of the 14th Amendment as “persons,” that abortion itself was a liberty rooted in American tradition, and that laws to protect unborn children are unconstitutional.

Means was advancing a self-consciously revisionist case. By 1989, though, supporters of Roe were presenting it as an academic consensus. That year, 400 historians filed a brief to the Supreme Court urging it to reaffirm Roe in an abortion case it was hearing, Webster v. Rep­roductive Health Services. The historians’ brief claimed that abortion was a common-law liberty at the Founding, “as the Court demonstrated in Roe v. Wade” (although Blackmun had written more tentatively). It further claimed that abortion was “not uncommon in colonial America,” and that abortion was later restricted for reasons that were now either obsolete, constitutionally forbidden, or both: a concern for maternal safety given the state of medicine at the time, a desire by doctors to use regulation to bolster their status, widespread fear of demographic change, and anxiety about female assertiveness. The idea that unborn children deserved legal protection “became a central issue in American culture and law only in the late twentieth century”; the brief insinuated that the real motivations were those old ones that now seemed disreputable.

The Webster brief does not appear to have influenced the Supreme Court. Neither did a modified version of it that was submitted three years later in another abortion case, Planned Parenthood v. Casey. It had a big impact, however, on the public debate. The New York Times publicized the brief’s account in its news pages, just as it had done for Means. When Laurence Tribe and Ronald Dworkin, the preeminent liberal constitutional theorists of their time, produced books about abortion, they explicitly relied on the brief in their discussions of history.

The ideas have now spread past any hope of tracing the genealogy of influence. Writing in The New Yorker in 2010, Jeffrey Toobin offered an account of the history of abortion that did not mention the brief but tracked its argument, including a reference to abortion as a “commonplace” when the Constitution was adopted. In 2018, University of Chicago Law School professor Geoffrey Stone wrote that there had been an unbroken tradition of abortion being “readily and legally available” from the ancient world until the late 19th century. It was “often relied upon” in the Founding era.

Except it wasn’t. The extremely high birth rates of colonial America (Benjamin Franklin estimated an average of eight per marriage in 1751) and the danger and ineffectiveness of extant methods of abortion both suggest as much. The brief’s evidence to the contrary includes the estimate that at the end of the 18th century, a third of New England brides were pregnant — a datum that could more easily be seen to testify to abortion’s rarity. Which is what some of the historians who signed the brief had concluded in their own published work. James Mohr, a signatory whose 1978 book Abortion in America the brief praised and frequently cited, wrote there that abortion was a “marginal practice.” Estelle Freedman, another signatory, had co-authored a book that noted that in colonial times, methods of family planning other than coitus interruptus, prolonged nursing, and abstinence were “rarely employed.” The brief these scholars signed, that is, contradicted their own publications.

To further back their contention that women in the early 19th century used abortion to limit family size, the authors of the brief quoted a physician who wrote that “abortion is not always associated with crime and disgrace; it may arise from causes perfectly natural and altogether beyond the control of the female.” But those words suggest and their context makes obvious that the physician, Theodric Beck, was writing about miscarriages, which are to this day sometimes described as “spontaneous abortions.” Earlier in the same work, Beck wrote that “the procuring of abortion . . . can be considered no less than murder.”

Contrary to Means, Blackmun, and the historians’ brief, abortion was certainly a crime in colonial times. Researchers have uncovered dozens of indictments for the killing of unborn children going back to the 13th century. Supporters of the common-law-liberty theory have claimed that the law was in these cases only protecting pregnant women from violent assaults on them, but the record contradicts that supposition. In 1602, for example, Margaret Webb of Surrey was indicted for having “destroyed the . . . child in her womb” by ingesting poison.

How the common law treated abortions early in pregnancy is a more complicated question. Blackmun, in Roe, declared it “undisputed that at common law, abortion performed before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense.” It was disputed. Some authorities followed the rule Blackmun mentioned. Others drew a line at the point when a child was “quick” — that is, alive (as in “the quick and the dead”) — which was thought to be in the seventh week of pregnancy. (The terminology has led to perennial confusion.) Still others held that abortion was a crime that prosecutors could indict at any stage of pregnancy. The Pennsylvania supreme court so held in 1850. Two of the leading legal treatises of 19th-century America, those by Francis Wharton and Joel Prentiss Bishop, concurred.

Even when courts held that an abortion or attempted abortion could not be indicted, they did not regard it as a liberty. It was subject to legal burdens incompatible with such recognition. Blackmun cited an 1845 case in which the high court of Massachusetts held that an indictment for abortion had to aver that the woman was quick with child. (The court explicitly declined to decide between a seventh-week rule and something more like Blackmun’s 16th-to-18th-week rule, a detail Blackmun characteristically skipped past.) The court nonetheless held that it was “an act done without lawful purpose.” If the mother died, therefore, her consent to the procedure would not protect the abortionist from the charge of murdering her.

In a recent brief to the Supreme Court in the pending Dobbs case, John Finnis and Robert P. George therefore describe abortion even early in pregnancy as at least an “inchoate felony” in the common law. Elsewhere they have pointed out that abortion contracts were void for illegality, advertisements for abortion were illegal, and places used for abortion were subject to summary closure. None of this bespeaks a “right,” certainly not in the sense that the Supreme Court has defined the right to abortion since Roe.

Starting in the 1820s and continuing through the next several decades, state legislatures codified and tightened the law of abortion, making it illegal throughout pregnancy. This shift reflected advances in scientific understanding, such as the discovery of the mammalian ovum in 1827: a discovery that, in effect, inaugurated embryology as a modern scientific field. By 1868, when the 14th Am­endment was ratified, 30 of the 37 states prohibited abortion. But our picture of this process of legal change has been subject to a continuing distortion.

Blackmun credited Means’s assertion that 19th-century laws against abortion aimed to protect pregnant women rather than unborn lives. Means had focused on New York’s 1828 statute in making that case. The Webster brief followed suit and added that the statute applied only after quickening. But James Mohr’s book — again, one of the brief’s principal sources — explicitly refuted the theory about maternal safety as a motive for the law and accurately reported that it applied throughout pregnancy.

The brief next turned to discrediting the mid-19th-century doctors’ campaign against abortion, which it portrays as having had venal motives. Supposedly, “regular” physicians wanted to suppress com­petition from “irregulars,” who were willing to perform abortions. To state the argument is to see its weakness: Why didn’t the regulars defeat the competition by performing abortions themselves? Mohr’s book had already explained that it was because of their “moral opposition to abortion at any stage of gestation.” The physicians, moreover, had to persuade leg­islatures in order to succeed in prohibiting abortion, and they did not accomplish their goal by arguing from self-interest.

The argument that the physicians made, and the legislators echoed, is not shrouded in mystery. The New York Medical Society passed a resolution in 1867 declaring abortion at any stage of pregnancy to be “murder.” The Ohio senate — during the same session it ratified the 14th Amendment and enacted an anti-abortion statute — issued a report saying that “to destroy the embryo” is “child-murder” and (here quoting a medical-ethics treatise) “a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man.”

When they mentioned abortion, 19th-century feminists spoke of it in similarly condemnatory terms. In an 1874 editorial titled “The Slaughter of the Innocents,” Woodhull and Claflin’s Weekly thundered, “Let those who see any difference regarding the time when life, once begun, is taken, console themselves that they are not murderers having been abortionists.”

Such statements were inconvenient for the drafters of the Webster brief, who wanted to pin anti-abortion laws on greedy doctors and on men anxious about the rise of feminism. The brief solved the problem by ignoring this evidence and implying instead, dishonestly, that the early feminists favored letting women have abortions. Mohr’s book was more accurate, as was another one by signatory Carl Degler.

The abortion case now before the Supreme Court features another historians’ brief, this one jointly submitted by the American Historical Association and the Organization of American Historians. It can be seen as a fighting retreat: Previous arguments deployed in favor of Roe v. Wade are qualified to the point of inanity, while new attacks on the actual historical record are launched.

Thus we learn that the physicians “were not universally successful” in changing opinions, as some abortions continued to take place even after prohibition. The new brief pushes this idea as far as it can: The failure to punish or deter all abortions, it maintains, meant that abortion had retained some of its supposed status as a common-law liberty. If one adopts a sufficiently stringent definition of a strong consensus, though, even the ordinary laws against homicide and theft have not produced one. The consensus that unborn children should be protected in law was robust enough to inform the laws of every U.S. state.

The brief also tries to make something of the fact that some post-codification 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.

The current brief’s most dizzying spin concerns the legal treatises of the 19th century. The treatises “consistently” taught that abortion was not a crime before quickening, it claims. The Bishop and Wharton treatises were “outside the consensus,” and neither of them “emphasized fetal protection” in analyzing the purpose of outlawing abortion.

Wharton, according to the brief, “wanted to regulate abortion from ‘a social and a moral point of view,’ but his moral arguments focused on ‘illicit’ sexual activity, not on fetal life.” Compare that description to the original: “In a social and moral point of view, the infant is as much entitled to protection, and society is as likely to be injured by its destruction, a week before it quickens as a week afterwards.” Only after making that point about fetal life did Wharton argue that “if” the common law aimed to use abortion laws to discourage illicit sexual activity, a distinction based on quickening would not serve that purpose either.

In a forum held after the submission of the Webster brief, the law professor who organized it, Sylvia Law, conceded that its writing had revealed a “tension between truth-telling and advocacy.” It was “constructed to make an argumentative point rather than tell the truth.” Decades of advocacy not rooted in truth — indeed contradicting the truth — have unfortunately left a deep mark on the law of abortion and the debate over it.

The truth is that for centuries Anglo-American law forbade abortion from the first time an unborn child was known to be alive, and that as knowledge of biology accumulated the law was deliberately changed, the better to protect unborn life. Activists in favor of a constitutionalized right to abortion have gone to great lengths to obscure and misrepresent the record — corrupting both history and law.