Justice Alito's argument breaks away from the originalist tradition, but it serves the same goal.
This essay is part of an ongoing partnership between Law & Liberty and the James Wilson Institute on Natural Rights and the American Founding. Essays in this series explore the rich interplay among law, governance, and political philosophy.
Churchill, in his ancestral biography Marlborough, upbraided the “long succession of historians who follow each other like sheep through the gates of error,” repeating some specious historical claim founded ultimately on a single meritless origin. Such is the story of the abortion histories that undergirded Roe v. Wade and have been since repeated by some of our most prominent scholars, judges, and journalists. The central specious claim in this case is that abortion prior to quickening was a protected common-law liberty at the time of the American founding and well into the 19th century, including when the Fourteenth Amendment was ratified.
“Embarrassingly for the majority,” Justice Sonia Sotomayor wrote in her Dobbs dissent, “early law does provide some support for abortion rights.” The evidence she claims for abortion rights in early American law is twofold: (1) “[c]ommon-law authorities did not treat abortion as a crime before ‘quickening’—the point when the fetus moved in the womb” and (2) “even in the mid-19th century, more than 10 states continued to allow pre-quickening abortions.”
Both of Sotomayor’s claims have a lineage that can be traced back to the late Cyril Means, New York Law School professor and counsel for the National Association for the Repeal of Abortion Laws (NARAL) who published two influential articles in the New York Law Forum in the years preceding Roe. In the first article, Means claimed to have revealed “for the first time” that the purpose of mid-nineteenth-century abortion statutes was solely to protect women and not unborn human life. In the second, he claimed to have uncovered a “story, untold now for nearly a century,” that “English and American women enjoyed a common-law liberty to terminate at will an unwanted pregnancy, from the reign of Edward III to that of George III,” that this “common-law liberty endured . . . in America, from 1607 to 1830.”
Justice Blackmun relied heavily on Means for the historical claims in his Roe v. Wade majority opinion, which is why Justice Alito noted in Dobbs that Means’ “articles have been discredited”—and, indeed, they have, perhaps most thoroughly in Joseph Dellapenna’s 1000+ page tome Dispelling the Myths of Abortion History. Alito also highlights how Jane Roe’s legal team did not even take Means seriously, pointing to an internal memo circulated prior to the Roe litigation that called into doubt Means’ historical claims but nonetheless praised his technique: “begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.”
To advance those ideological goals, professional historians have submitted prominent friend-of-the-court briefs in major abortion cases such as Webster v. Reproductive Services (1989), Planned Parenthood v. Casey (1992), and, most recently, Dobbs v. Jackson Women’s Health (2022). In Webster and Casey, the historians claimed that “the common law recognized a woman’s right to choose abortion” and that “nineteenth-century laws restricting access to abortion were not based on a belief that the fetus was a human being.” Neither claim is true, which caused some professional embarrassment for the Webster brief’s most prominent signer, James Mohr, when he acknowledged that the brief was “not history, as I understand the craft.”
The briefs were, instead, exercises in crafting foundationless post-modern narratives for the purpose of wielding power. Such can be said also of the brief filed by the American Historical Association and the Organization of American Historians in Dobbs. While backing away from some of the more outrageous claims in past historians’ briefs, the Dobbs brief held on to the assertion that “under the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move”—a more careful formulation but no less erroneous if it means that the law allowed or protected a legal right or common-law liberty to abort prior to quickening. That was never the case, even when common-law judges held pre-quickening abortion to be unindictable for evidentiary reasons.
As Justice Alito points out in his majority opinion, “many authorities asserted that even a pre-quickening abortion was ‘unlawful’ and that, as a result, an abortionist was guilty of murder if the woman died from the attempt.” The same was true if a child was born alive and then died with marks that bore evidence of an attempted abortion. The “born alive rule” was applied regardless of quickening.
Quickening was also a highly ambiguous term, which sometimes meant felt fetal movement but at other times simply meant alive—as in the phrase the “quick and the dead.” Which usage was being employed depended on context, but the phrases “with quick child” or “quick with child” often denoted simply the existence of a living child, and quickening—the first felt movement—was taken to be legal evidence of the existence of that new life. Although some judges held abortion prior to quickening to be unindictable—because lacking evidence needed to establish that new life existed when an abortive act took place—the act was nonetheless held to be unlawful, which opened the abortionist to criminal charges for the death of the mother or the death of a child subsequently born alive, however briefly, before expiring.
Remarkably, Sotomayor’s dissenting opinion accepts the main thrust of Alito’s retelling of the history. “The majority says (and with this much we agree) that the answer to this question is no: In 1868, there was no nationwide right to end a pregnancy, and no one thought that the Fourteenth Amendment provided one.” But Sotomayor then repeats some of the false historical claims that have been a mainstay of abortion litigation: that pre-quickening abortion was not a crime at common law and that some states in the mid-nineteenth century continued to “allow” abortion before quickening.
For evidence of the former claim, Sotomayor cites Mohr’s Abortion in America (1978), but his assertion that abortion prior to quickening was not a common law crime has not held up under scrutiny. Some common law cases, such as the Pennsylvania case of Commonwealth v. Mills (1850), did clearly hold abortion to be a crime at any point in pregnancy. In that case, the Pennsylvania state judge held that it was unnecessary for an indictment for criminal abortion to say anything about quickening, because it was “the well settled and established doctrine of the common law” that “the civil rights of an infant en ventre sa mere are fully protected at all periods after conception.”
For evidence of the latter claim, Sotomayor cites a footnote in the Historians’ Brief that directs the reader to the appendix to Eugene Quay’s 1961 Georgetown Law Journal article collating abortion statutes state-by-state. “By the time the Fourteenth Amendment was ratified in 1868,” according to the brief, “nearly half of the states retained some vestige of the common law” and “in eleven states abortions remained legal before quickening.” This is the source of Sotomayor’s claim that “more than 10 states continued to allow pre-quickening abortions” in the mid-nineteenth century.
The first problem Quay’s article poses for the Historians’ Brief, however, is that the laws of five of the eleven states in question were passed after 1868—and West Virginia’s not until 1955—and therefore support neither the first half of the sentence (“By the time the Fourteenth Amendment was ratified in 1868”) nor Sotomayor’s qualification (“even in the mid-19th century”). But the second, and larger, problem is that the statutes and other legal materials collated by Quay don’t support the claim that the states allowed pre-quickening abortion. Some states mention quickening, but none in a way that supports the conclusion that, as Sotomayor claimed, “the criminal law of that early time might be taken as roughly consonant with Roe’s and Casey’s different treatment of early and late abortions.”
Of the eleven states in question, the entry for Kentucky comes closest to supporting the claim that abortion was allowed at common law. In the case materials, Quay cited a state judge who wrote in an 1879 case that “It never was a punishable offense at common law to produce, with the consent of the mother, an abortion prior to the time when the mother became quick with child. It was not even murder at common law [as opposed to a lesser criminal offense] to take the life of the child at any period of gestation, even in the very act of delivery.” Quay, however, also pointed to another Kentucky judge in an 1859 case who wrote that, although abortion was not a common-law felony, attempted abortion that resulted in the death of the mother would be considered murder because the abortion was “done without lawful purpose and dangerous to life.”
This is consistent with what we know about the common law: that some common-law judges thought pre-quickening abortion was not an indictable offense even as it remained unlawful (“done without lawful purpose”) such that one could be charged with murder both for injuries inflicted upon the mother that led to her death or injuries inflicted upon the child that led to a live birth prior to the child’s death (the so-called born alive rule). That is a far cry from saying that abortion was “legal” (Historians Brief) or “allowed” (Sotomayor’s dissent), and none of the other statutes or legal materials they point to provide support for the claim that the law protected or allowed pre-quickening abortion.
Although Sotomayor’s dissenting opinion followed the historians like sheep through the gates of error, it does contain this grain of truth: history and tradition cannot be the only guide to constitutional interpretation. The historians’ appeal to Eugene Quay’s articles points to another. In the first part of his study, published in 1960, Quay surveyed our history and concluded that “[p]rotecting the life of the unborn child has been a major concern of the earliest laws known to us. It has continued to be an object of law-making in every subsequent civilization which has contributed to our own because it springs from a universal feeling which in the past has ceased to move men only when a nation was in decay.”