Aborting History

CASES before the Supreme Court concerning abortion have been known to generate controversy. So when the Justices agreed to hear Webster v. Reproductive Health Services (1989), they had to expect a flood of amicus curiae briefs from the National Organization for Women, Catholics United for Life, and the like. One brief, however, came from a less predictable quarter and attracted wide attention. It was submitted by three lawyers on behalf of 281 professional historians (later signatures brought the total to over 400). The briefs authors understood its novelty and significance: “Never before,” the brief began, “have so many professional historians sought to address this Honorable Court in this way.”

The historians claimed that Americans had recognized the right to choose abortion at the time of the Republic’s founding. Further, they argued, nineteenth-century legislators restricted that right for four reasons that either no longer apply or are no longer constitutionally permissible: to protect women from unsafe abortions, to help physicians to constitute themselves as a profession, to enforce gender roles, and to prevent Catholic immigrants from increasing their proportion of the population. A concern for the alleged life of the fetus “became a central issue in American culture only in the late twentieth century.” Since restrictions on abortion impose severe costs on women and since the historic rationales for those restrictions are discredited or obsolete, the historians concluded, the Court should reaffirm the constitutional right to abortion whose existence it had announced in Roe v. Wade (1973).

About the Author

Ramesh Ponnuru

Ramesh Ponnuru is the editor of National Review, a columnist for the Washington Post, and a fellow at the American Enterprise Institute.

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CASES before the Supreme Court concerning abortion have been known to generate controversy. So when the Justices agreed to hear Webster v. Reproductive Health Services (1989), they had to expect a flood of amicus curiae briefs from the National Organization for Women, Catholics United for Life, and the like. One brief, however, came from a less predictable quarter and attracted wide attention. It was submitted by three lawyers on behalf of 281 professional historians (later signatures brought the total to over 400). The briefs authors understood its novelty and significance: “Never before,” the brief began, “have so many professional historians sought to address this Honorable Court in this way.”

The historians claimed that Americans had recognized the right to choose abortion at the time of the Republic’s founding. Further, they argued, nineteenth-century legislators restricted that right for four reasons that either no longer apply or are no longer constitutionally permissible: to protect women from unsafe abortions, to help physicians to constitute themselves as a profession, to enforce gender roles, and to prevent Catholic immigrants from increasing their proportion of the population. A concern for the alleged life of the fetus “became a central issue in American culture only in the late twentieth century.” Since restrictions on abortion impose severe costs on women and since the historic rationales for those restrictions are discredited or obsolete, the historians concluded, the Court should reaffirm the constitutional right to abortion whose existence it had announced in Roe v. Wade (1973).