Will those who control abortion's past control its future?

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In its 1973 decision in Roe v. Wade, the Supreme Court found a constitutional right to abortion grounded in a "right to privacy" provided in the 14th Amendment. That legal argument was bolstered by a historical narrative.

State laws prohibiting abortion at all stages of pregnancy, Justice Harry Blackmun wrote in the opinion, were not of ancient or even common-law origin, but dated mostly to the late 19th century. Before that, he wrote, citing various scholars, abortion early in pregnancy had been legal in most states.

Last week's leaked draft opinion, which would overturn Roe, offers a very different history. The 98-page draft, written by Justice Samuel Alito, asserts that "an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973."

Roe, Alito writes, "either ignored or misstated this history." And "it is therefore important," he continues, "to set the record straight."

The claim of an "unbroken tradition" of criminalizing abortion set off strong criticism from many historians, including some whose work was cited in an amicus brief submitted by the American Historical Association and the Organization of American Historians, the two main organizations of professional historians in the United States.

Alito begins his historical argument by saying that the right to abortion is a recent invention. "Until the latter part of the 20th century," he writes, "there was no support in American law for a constitutional right to obtain an abortion. Zero. None."

By contrast, he claims, "abortion had long been a crime in every single state." Until the 19th century, he maintains, American law followed common law, which criminalized abortion "in at least some stages of pregnancy." And the records of prosecutions, however scant, "corroborate that abortion was a crime."

In the 1800s, he writes, states began passing laws that "expanded criminal liability." By the time the 14th Amendment was adopted, three-quarters of the states outlawed abortion at all stages of pregnancy, with the rest to follow within a few decades.

Historians see the story differently.

Mary Ziegler, the author of several books on the history of abortion (and a critic of the draft decision), said Alito is correct that the Constitution includes no references to abortion, and that only in the second half of the 20th century did people began claiming the idea of a basic right to abortion.

"That is because common law did not even acknowledge a fetus as existing separately from a pregnant woman" before quickening, the historians argue in their brief.

The central historical claims in Roe "were accurate," the brief says, "and remain so today."

Leslie J. Reagan, the author of "When Abortion Was a Crime: Women, Medicine and Law in the United States, 1867 to 1973," said abortion was common in the early 19th century, perhaps even more so than Roe depicted.

And regulation relied on women's own experience, since they were the ones who would know when "quickening" occurred. Before "quickening," Reagan said, taking medications or other treatments wasn't even considered abortion, but "trying to get your menses" — menstrual period — "back."

"It was after quickening that it was against the law, and considered immoral," she said. "After quickening, women themselves would stop trying to get their menses back. It was considered a life."

Dellapenna, a law professor at Villanova University, cited (using a phrase Alito echoes in the draft opinion) what he called an "unbroken tradition" of laws protecting unborn life, which stretched from English common law into the 1970s.

His book has been hotly debated by historians. But Alito also draws on other sources, including a brief submitted by legal scholars Robert P. George and John M. Finnis, who challenged the historical scholarship supporting Roe.

By the late 1860s, they argue, the legal distinction of "quickening" had been abandoned, "because science had shown that a distinct human being begins at conception."

When the 14th Amendment was passed in 1868, they argue, fetuses were understood as "persons" deserving protection.

Abortion restrictions, it's clear, changed over time.

This echoes Reagan's book, which argues (citing historian James C. Mohr) that the earliest laws regulating abortion were poison-control measures meant to protect women from dangerous abortifacient drugs, rather than to restrict abortion itself.

But in 1857, Reagan writes, the newly founded American Medical Association "initiated a crusade to make abortion at every stage of pregnancy illegal." The organization was driven not only by concern for fetal life but also by the desire to take control from midwives. And some members expressed concern that middle-class "Anglo-Saxon" women were not having as many children as Catholic immigrants and people of color.

Dr. Horatio R. Storer, a leader of the medical campaign against abortion, asked who would settle the nation as it spread westward. Would the frontier "be filled by our own children or by those of aliens?" he asked. "This is a question that our own women must answer; upon their loins depends the future destiny of the nation."

In the draft opinion, Alito notes the argument that the restrictive abortion laws adopted starting in the mid-19th century were meant to bolster the white, Protestant birthrate. But he dismisses the claim, saying it is based on only a handful of supporters of abortion bans. "It's quite a leap to attribute these motives to all the legislators whose votes were responsible" for the new laws, he writes.

Instead, he writes, "there is ample evidence" that anti-abortion laws were "spurred by a sincere belief that abortion kills a human being."

"It is beyond dispute that Roe has had that demographic effect," Alito writes, citing government data showing that "a highly disproportionate percentage of aborted fetuses are Black."

He also cites Justice Clarence Thomas' much-noted fiery concurrence in that 2019 abortion case, in which he assailed early birth-control advocates like Margaret Sanger as racist eugenicists who wanted to suppress the births of "undesirable" individuals and populations.

While Sanger herself did not support abortion, Thomas wrote, other family planning advocates did so "for eugenic reasons." And today, he warned, abortion retains the potential "to become a tool of eugenic manipulation."

The historical relationship between the early family planning movement and eugenicist beliefs (which were widely held across American society in the early 20th century) is complex and intensely disputed.

But Ziegler questioned how Alito could dismiss the notion that abortion restrictionists in the 1850s were motivated even in part by bigotry, while citing claims that it was a motivation of some 20th-century supporters of abortion.