This month, the world learned that the US Supreme Court intends to strike down Roe v. Wade, the 1973 case protecting legal abortion in America. In a draft majority opinion leaked to Politico, Justice Samuel Alito argues that Roe must be overturned in part because the Constitution does not mention abortion (true: The 55 delegates who wrote it did not bring up pregnancy termination, nor any other specific medical procedure, nor, for that matter, birth) and also because, contrary to Roe, Alito claims abortion was not historically considered a right in the United States. “Until the latter part of the 20th century, such a right was entirely unknown in American law,” Alito writes. This is false. While the opinion is not final, the fact that this fundamentally wrong assertion even made it into a draft is a dispiriting sign that the Supreme Court needs a remedial history lesson.
“Abortion was not always a crime. During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law,” historian Leslie J. Reagan writes in her 1996 book When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. While abortion was indeed outlawed for a long stretch of American history, this criminalization took place nearly 80 years after the Constitution was written. A Reconstruction-era sharecropper’s wife would have likely run into trouble finding a way to receive a legal abortion; a Founding Father’s mistress, meanwhile, could get one in early pregnancy without threat of state punishment.
When Abortion Was a Crime is essential scholarship tracing the social movement to ban abortion and punish doctors, midwives, and patients. Drawing on public records and archival research about how abortion laws were created, enforced, and dodged in the Chicagoland area, Reagan documents how shifting attitudes and beliefs about bodily autonomy and when life begins impacted pregnant women and the health care workers trying to help them. While the majority of the book, as its title suggests, focuses on the century when abortion was outlawed in the United States, it also offers a thorough summary of customs and policies about termination prior to its prohibition. “Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy). The common law's attitude toward pregnancy and abortion was based on an understanding of pregnancy and human development as a process rather than an absolute moment,” Reagan writes.
Then, as now, the vast majority of abortions occurred before “quickening,” and so the vast majority were legal, popularly seen as a matter of bringing on a period, or “restoring menses.” As Reagan points out, pharmacists regularly peddled brand-name abortifacients to their customers during this time, and “restoring menses” was not an especially divisive subject.
At this moment, reading Reagan on life during abortion bans can feel like reading speculative fiction more than historical fact, as her chronicle of the past looks increasingly like a glimpse of the future. As When Abortion Was a Crime explains, the initial American anti-abortion movement took off in the mid-1800s, resulting in a cascade of laws banning abortions in the 1860s-1880s. Reagan outlines how activist physician Horatio R. Storer crusaded against abortion using white supremacist ideas, arguing that aborting white babies would lead to the white population of America being replaced by other races. “Hostility to immigrants, Catholics, and people of color fueled this campaign to criminalize abortion,” Regan writes. “White male patriotism demanded that maternity be enforced among white Protestants.” Storer swayed much of the medical establishment with this argument. (His xenophobic tirades sound depressingly familiar today—Storer was, in essence, an ahead-of-his-time propagandist for the “Replacement Theory” now embraced by the American right.) This Storer-led era of prohibition did not stop abortions, but it did make them more dangerous.
The American Historical Association and the Organization of American Historians submitted an amicus brief to the Supreme Court explaining this historical context back in September. The brief cites Reagan among dozens of other sources, as she is far from the only scholar to clearly and explicitly make the point that abortion was not always a crime. Historian James C. Mohr’s 1978 book Abortion in America: The Origins and Evolution of National Policy, 1800-1900 opens with the following lines: “In 1800 no jurisdiction in the United States had enacted any statutes whatsoever on the subject of abortion; most forms of abortion were not illegal and those American women who wished to practice abortion did so.”
Instead of relying on the larger body of scholarly work detailing how abortion flipped from legal to illegal and back again, though, Alito’s draft opinion leans heavily on Dispelling the Myths of Abortion History, a 2006 book by law professor Joseph Dellapenna, which argues that prior histories of American abortion are wrong. (In his amicus brief in support of overturning Roe, Dellapenna sneers at them as “advocacy pieces.”) Despite the raft of primary documentation accompanying said histories, Dellapenna instead insists his predecessors are mistaken and that they’ve incorrectly interpreted English common law and how it was applied in the colonies. Although Dellapenna’s amicus brief is prickly, his book is nuanced and at times persuasively argued; it has been cited even by forthrightly progressive legal scholars like Brooklyn Law professor Anita Bernstein, who acknowledged the evidence Dellapenna gathered to argue that abortions in early America were too risky to be widely embraced as an easy solution to unwanted pregnancy. (This is, of course, common sense: Colonial-era medicine was not known for its safety. As with abortion, many other medical events carried grave danger in that pre-penicillin world, including childbirth.) Still, as Bernstein writes in her 2015 article “Common Law Fundamentals of the Right to Abortion,” the plain fact remains: “Individuals hold—and as long as the common law has been in place, they have always held—a legal right to terminate their pregnancies.”
The decision to adopt Dellapenna’s heterodox alternate history as the secret, hidden truth, and to base a monumental decision on it, is a radical choice on Alito’s part. This choice will have consequences. He is severing the federal government’s baseline reality from that of mainstream society. In his draft opinion, Alito argues that abortion should be outlawed because “such a right has no basis in the Constitution’s text or in the Nation’s history.” Yet, for the 246 years the United States has been a nation, Roe was the law of the land for the most recent 49, and common law allowed abortion for the first 80 or so. Abortion has thus been legal for a sizable majority of the nation’s existence. Arguing otherwise exposes deep rot at the heart of the federal government. The judicial branch, intended to float above the bog of politics, has instead once again proven to be at its fetid center. If an activist judge in the highest court in the nation can deny historical record to fulfill ideological goals, why assume they’ll stop at the issue of abortion? The Supreme Court is meant to interpret the nation’s laws, not distort its past.
