Abortion is not mentioned in the U.S. Constitution. According to Justice Samuel Alito, to qualify for equal protection and due process under the 14th Amendment, an unenumerated right has to be “implicit in the concept of ordered liberty” and “deeply rooted in the Nation’s history and traditions.” In his draft decision in Dobbs v. Jackson Women’s Health Organization overthrowing Roe v. Wade, Alito’s “inescapable conclusion” is that, “on the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973.”
Abortion, feminist Katha Pollitt has written, is “one of those subjects about which people have not only their own opinions but their own facts.”
Alito is one of those people.
Common law did not acknowledge that a fetus existed separately from a pregnant woman until “quickening,” a stirring in the womb (15 or 16 weeks into the pregnancy), which she was in the best position to ascertain. Neither did common law criminalize abetting, performing, or receiving abortions. When the U.S. Constitution was ratified, every state respected the right to abort prior to quickening. Until 1869, when the Roman Catholic Church decreed that life begins at conception, many clergy maintained that the unborn were not “ensouled” until quickening.
Enacted in Connecticut in 1821, the first abortion law forbade only the use of poisons. Before 1839, only eight states regulated abortions. In the ensuing decades, the number of abortions surged, especially among relatively affluent married women. Abortifacients, with names like “Samaritans’ Gift For Females,” were sold on the open market. One entrepreneur spent $60,000 a year advertising services in four cities to rid ladies of “suppressions, stoppages, and private diseases.” Another recommended, with a wink and a nod, that “pregnant females should not use” her products “as they invariably produce a miscarriage.”
In the middle of the 19th century, amidst passage of anti-abortion statutes in several states, a female physician declared that in view of society’s apparent lack of charity “toward the erring, it is felt that the unfortunate should have some sanctuary to which to flee … hiding forever their present unhappiness. The true physician cannot be too broad and gentle.” A Boston doctor asked if anyone “knew of a conviction” under the new laws.
In 1868, when the 14th Amendment was ratified, 21 of the nation’s 37 states still recognized the right to abort before quickening.
Legislation, moreover, did not stop the practice.
In 1870, about one-fifth of all pregnancies ended in abortion. In 1972, the year before Roe v. Wade was decided, the Centers for Disease Control estimated that 130,000 women had had abortions; 39 of them died that year, compared to only five in 1974, when abortion was legal.
This contested history — and the pro-choice statutes enacted by state legislatures in the 1960s and early ‘70s — do not constitute “an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of common law until 1973.”
Nor does Alito make a compelling case that a constitutional right can only be recognized if it is deeply rooted in the nation’s history and traditions. As the amicus curiae brief submitted by the Biden administration in Dobbs points out, contraception, gay sex and gay and interracial marriage are not mentioned in the Constitution and “most were widely prohibited when the 14th Amendment was adopted.”
A long-standing “living Constitution” approach, flexible enough to adapt to changing circumstances and values, provides a viable — and in my judgment preferable — alternative to Alito’s “originalist” jurisprudence based on “facts” and generalizations about the past that may have been selected, consciously or sub-consciously, to support a preferred outcome.
The 8th Amendment, for example, prohibits infliction of “cruel and unusual punishment.” In 1910, the Supreme Court acknowledged that “what constitutes cruel and unusual punishment has not been exactly decided.” In 1958, Chief Justice Earl Warren asserted that the Court “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Applying this method, the Supreme Court has decreed that the death penalty for rape; deprivation by prison officials of “reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention”; and handcuffing a prisoner to a horizontal bar, exposed to the sun for several hours, constitute cruel and unusual punishment.
In response, perhaps, to Justices Breyer, Kagan, and Sotomayor, and the firestorm he knew would erupt across the nation, Alito makes the claim in his draft opinion that the issues of concern to his critics do not involve “the critical moral question raised by abortion.” And he promises that the decision in Dobbs “concerns no other right.”
Why should anyone believe him?
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”