Good morning,
This is the second week among five where I’m devoting a day to the culture wars and important cases before the Supreme Court…
The conservative stalwarts on the Supreme Court claim they make decisions based upon the text of the Constitution, the context of words and practices at the time of the writing of the Constitution, or historic precedent and practice. This, of course, is a stretch. The Court is willing to adopt absurd readings of the words and misreadings of history and practice in order to justify its positions—positions that are based upon a broad reading of the right to bear arms in the Second Amendment, a narrow reading of the Tenth Amendment, and a twisted view of the history and practice governing both abortion and the regulation of firearms. Today, an analysis of their analysis of the history of abortion in this country.
ABORTION
Justice Alito bases much of his reasoning in the Dobbs case based upon the notion that, for due process to protect a right, it “must be objectively and deeply rooted in this Nation’s history and traditions.”
Alito asserts that our nation’s view of abortions was that a “post-quickening” abortion (roughly after the 25-week mark) was deemed a homicide, while stating that there was little comment in colonial American jurisprudence regarding “pre-quickening” abortions. Alito’s analysis presumably is that the absence of an affirmative statement in the Constitution or a legal case protecting a right it must not exist. This is like suggesting that something that is ordinary and typical must nonetheless be stated in legal treatises or case law in order to be real. And while the court cites a few early cases about pre-quickening abortion being a homicide, these focus on whether the doctor administered a potion to the woman against her will. This is quite different from a woman making the choice herself.
What Alito misses, no doubt intentionally, is the knowledge and practice of the people who framed the Constitution and the world in which they lived. In eliminating this important part of history, and in limiting his review to reported cases, rather than practical facts, he manipulates history to his own end.
BEN FRANKLIN AND THE COMMON KNOWLEDGE
Exhibit #1 is founder Ben Franklin. Molly Farrell notes in her article, “Ben Franklin Put an Abortion Recipe in His Math Text Book”:
“…[A]bortion was so “deeply rooted” in colonial America that one of our nation’s most influential architects went out of his way to insert it into the most widely and enduringly read and reprinted math textbook of the colonial Americas—and he received so little pushback or outcry for the inclusion that historians have barely noticed it is there. Abortion was simply a part of life, as much as reading, writing, and arithmetic.”
In Franklin’s American update to The Instructor, a “how to” book on a variety of subjects, he included John Tennent’s The Poor Planter’s Physician to the American edition. In that treatise was to be found the recipe for at-home abortions.
Ms. Farrell goes on, “…Franklin’s choice to get Tennent’s pamphlet into the hands of readers all over the colonies meant that anyone learning to read, write, and calculate with his book would also have access to the leading available treatment for ending a pregnancy…”
Alito’s majority opinion in Dobbs asserts that ‘the Constitution makes no reference to abortion.’ Fair enough, but this hardly is the sole determinant of the availability of abortions or of their ubiquity at the time.
ABORTION WAS RUN-OF-THE-MILL AND LEGAL AND A FOUNDER CONFIRMS THIS
Exhibit #2 is what Laura Briggs writes in the Washington Post:
“…[What if the Constitution was silent on abortion because its drafters believed that it — like virtually all medical procedures — should remain unregulated as a matter of law? How, in other words, do we interpret that historical silence?”
While the Constitution is silent, Briggs goes on: f“James Wilson, who wrote the Constitution’s preamble, weighed in on the subject of abortion law in a 1790 lecture. Quoting William Blackstone, a preeminent authority on English common law, Wilson told his audience: “In the contemplation of law, life begins when the infant is first able to stir in the womb.” Abortion, in Wilson’s view, could not be regulated by law before that time.”
Ms. Briggs notes that both in Massachusetts and New Jersey, their Supreme Courts held that abortions prior to quickening was not illegal, going so far as noting that New Jersey Chief Justice Green distinguished consensual versus nonconsentual abortions, nothing that the fetus has “no autonomous legal existence.” Needless to say, the colonial and post-colonial preoccupation with quickening and maternal consent cannot sit well with anti-abortion activists.
As to the religious point of view, Gillian Brockell notes in her Washington Post article: “Unlike many antiabortion activists today, most religious and legal scholars at the time [late 18th and early 19th centuries] did not think “ensoulment” began at the moment of conception but at the time of “quickening” — when a pregnant person can feel fetal movement, generally between 16 and 22 weeks. She notes that the vast majority of Alito’s historical references concern cases of abortion after the fetus was ‘quick…’”
BUT WHAT ABOUT THE ALITO’S HISTORICAL ANALYSIS?
Briggs eviscerates Justice Alito’s historical references, as follows:
“As with all things about abortion in recent years, there is another side, largely represented by Joseph Dellapenna, a law professor at Villanova University who has written a book about the history of abortion. Alito’s draft relies heavily on him. Dellapenna claims that there was criminalization of abortion in European common law from the 1200s through the 1500s. This hardly seems relevant. These cases involved assaults on pregnant people resulting in stillbirth, which is not the same thing as medical — or even herbal — abortion. There is also no evidence that these cases were known to the U.S. courts, much less the writers of the Constitution.”
“A handful of colonial U.S. cases are also cited to argue for a legal concern about abortion before quickening, but these involve murder and beating of pregnant women, rape or paternity claims. And there is no evidence that anyone was ever convicted of the death of a fetus in early pregnancy, only that the existence of the fetus or stillborn baby was relevant to the court in cases of crimes against women.”
Gillian Brockell also notes that “Justice Samuel A. Alito Jr. calls himself an originalist, someone who thinks the Constitution should be interpreted only by how it would have been understood by the Founders when they wrote it…”
“At least seven times, Alito cited Sir Matthew Hale, a 17th-century jurist who didn’t think marital rape was possible because wives were the property of their husbands, and who sentenced at least two women to die for witchcraft. Alito also cited a legal text from 1250 by Henry de Bracton that, in another section, says women are inferior to men, and that they sometimes give birth to literal monsters.”
Ms Brockell raises my earlier concern, in that Justice Alito fails to discuss the real world (a real world occupied by Ben Franklin’s treatise and James Wilson’s notes). Brockell notes how common the practice was in early America:
“In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.” It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.”
CONCLUDING THOUGHT
Don’t always listen to a Supreme Court Justice’s pronouncements on history. First, they aren’t historians. Second, he or she is relating only those arguments that support his or her position. Third, they are unconstrained by a need to articulate contradicting sources and their merits.
In this case, the Supreme Court gives fuel to the sentiment, particularly among our youth and young adults, that no institution can be trusted. The Court has descended to the point of mis-citing history and engaging in legal justifications to create the platform to further a religious view of life, limit a woman’s freedom and expand the role of government.
The ramifications of the Dobbs case go well beyond whether a woman controls her own body and childbearing decisions (which would be bad enough) and call into question the role of the Supreme Court as arbiter of our rights and the operations of our government.
Have a great day,
Glenn
You seem to far more literate in the subject than I but you failed to mention or comment about the issues of States Rights. The Dobb’s decision I had believed stood for the proposition that many matters should be left to individual States to decide and not the Federal government. The Constitution enumerates areas where the Federal Government has domain and dominance. All else is left to the States. If one believes that Texas has no rights to enforce immigration laws, conversely, the Federal Government may not have the right to edict what is not provided for. Yes, I understand that a woman has certain rights over her body and health. I also believe that a woman should have a right for a certain period of time to terminate a pregnancy during the course of that pregnancy. States that legislate that no right exists is ill conceived but up to that State’s citizens to modify the State’s thinkings.