This month the world has learned that the U.S. Supreme Court intends to strike Rowe vs. Wade, a 1973 case to protect legal abortion in America. In the draft, the opinion of the majority leaked to PoliticoJudge Samuel Alito argues that Caviar should be repealed partly because the Constitution does not mention abortion (true: the 55 delegates who wrote it did not mention abortion, nor any other specific medical procedure, nor, for that matter, childbirth), and also because that, contrary to CaviarAlito argues that abortion has not historically been considered a right in the United States. “Until the second half of the 20th century, such a right was completely unknown in American law,” writes Alito. This is not true. While this conclusion is not conclusive, the fact that this fundamentally wrong statement even made it into the draft is a depressing sign that the Supreme Court needs a corrective history lesson.
“Abortion was not always a crime. In the eighteenth and early nineteenth centuries, early abortion was legal under the common law,” writes historian Leslie J. Reagan in his 1996 book. When Abortion Was a Crime: Women, Medicine, and the Law in the United States, 1867–1973.. While abortion has indeed been outlawed by law for a long period of American history, this criminalization took place almost 80 years after the Constitution was written. A Reconstruction-era sharecropper’s wife would most likely run into trouble trying to find a way to have a legal abortion; meanwhile, the Founding Father’s mistress could obtain it early in her pregnancy without the threat of state punishment.
When was abortion considered a crime? is an important study that tracks the social movement to ban abortion and punish doctors, midwives and patients. Drawing on public records and archival research on how abortion laws were created, enforced, and evaded in the Chicago area, Reagan documents how changing attitudes and beliefs about bodily autonomy and early life have affected pregnant women and healthcare professionals. trying to help them. While most of the book, as its title suggests, focuses on the century when abortion was outlawed in the United States, it also provides a detailed overview of the customs and regulations of abortion before it was outlawed. “Abortion was banned only after the “acceleration”, when the pregnant woman could feel the movements of the fetus (about the fourth month of pregnancy). The common law attitude to pregnancy and abortion was based on an understanding of pregnancy and human development as a process, not an absolute moment,” writes Reagan.
Then, as now, the vast majority of abortions were done before the “rush” and therefore the vast majority of them were legal, and popularly seen as a way to induce menstruation or “restore the menstrual cycle.” As Reagan points out, at the time, pharmacists routinely sold brand-name abortifacients to their customers, and “restoring menstruation” was not much of a controversy.
At this point, Reagan’s reading of life under the abortion ban may seem more like reading speculative fiction than historical fact, as her chronicle of the past increasingly resembles a glimpse of the future. As When was abortion considered a crime? explains, the original American anti-abortion movement emerged in the mid-1800s, leading to a cascade of anti-abortion laws in the 1860s and 1880s. Reagan describes how activist physician Horatio R. Storer opposed abortion using white supremacist ideas, arguing that abortions of white children would result in the replacement of white Americans by other races. “Hostility towards immigrants, Catholics, and people of color fueled this campaign to criminalize abortion,” Regan writes. “The patriotism of white men demanded that motherhood be forced on white Protestants.” With this argument, Storer convinced much of the medical establishment. (His xenophobic tirades sound depressingly familiar today – Storer was, in fact, a propagandist ahead of his time. “Theory of substitutionnow endorsed by the American right.) This era of Storer Prohibition did not stop abortion, but made it more dangerous.
The American Historical Association and the Organization of American Historians presented summary to the Supreme Court, explaining this historical context back in September. In the summary, Reagan is cited among dozens of other sources as she is far from the only scholar to point out clearly and directly that abortion was not always a crime. 1978 book by historian James C. More Abortion in America: The Origins and Evolution of National Policy, 1800-1900. begins with the following lines: “In 1800, no jurisdiction in the United States enacted any legislation concerning abortion; most forms of abortion were not illegal, and those American women who wanted to have abortions did so.”
However, rather than relying on more extensive scholarly work detailing how abortion went from legal to illegal and back again, Alito’s draft opinion relies heavily on Debunking myths about the history of abortion, a 2006 book by law professor Joseph Dellapenna arguing that the previous history of American abortion is incorrect. (In his summary in support of rollover Caviar, Dellapenna scoffs at them as “propaganda articles.”) Despite the many primary documents accompanying the stories mentioned, Dellapenna instead insists that his predecessors were mistaken and misinterpreted English common law and how it was applied in the colonies. Although dellapenna’s summary of cases is prickly, his book is full of nuance and at times convincingly argued; it has even been cited by overtly progressive legal scholars such as Brooklyn law professor Anita Bernstein, who has acknowledged the evidence collected by Dellapenna to argue that abortion in early America was too risky to be widely accepted as a simple solution to unwanted pregnancies. (This is, of course, common sense: Colonial-era medicine was not known for its safety. As with abortion, many other medical events in that pre-penicillin world posed serious risks, including childbirth.) Still, like Bernstein writes in her 2015 article “Basics of the Common Law of the Right to Abortion,” the obvious fact remains: “People have—and as long as the common law has existed, they have always had—the legal right to terminate a pregnancy.”
The decision to accept Dellapenna’s unorthodox alternate history as a secret, hidden truth and base a monumental decision on it is a radical decision on Alito’s part. This choice will have consequences. It separates the basic reality of the federal government from the reality of mainstream society. In his draft opinion, Alito argues that abortion should be outlawed because “such a right has no basis either in the text of the Constitution or in the history of the country.” However, for 246 years the United States has been a nation Caviar was the law of the land for the last 49 years, and the common law allowed abortion for the first 80 or so. Thus, abortion was legal for most of the country’s existence. Saying otherwise exposes the deep rot at the heart of the federal government. The judiciary, designed to soar above the swamp of politics, instead again turned out to be in its stinking center. If an activist judge in the country’s highest court can deny historical records to achieve ideological goals, why are they supposed to stop at the issue of abortion? The Supreme Court is meant to interpret the laws of a country, not to distort its past.
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