A history lesson for Justice Alito.
Since the conclusion of oral arguments in Dobbs v. Jackson Women’s Health Organization in December 2021, the nation has been waiting on bated breath for the opinion of the court knowing full well the implications the decision could have on the fate of Roe v. Wade and a litany of other cases. The wait came to an unprecedented end on Monday April 2nd when Politico leaked a draft of the opinion written by none other than Justice Samuel Alito whose self-proclaimed originalist philosophy and bombastic rhetoric in writing the Burwell v. Hobby Lobby decision garnered him quite the reputation within reproductive justice circles. That Alito possessed the power of the pen in this case was enough to make my stomach turn before I’d even read the opinion.
For those of you who haven’t had the time or strength to will to comb through the draft opinion, I assure you it is as catastrophic as you think. Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, does a great job summarizing the far reaching implications of what this decision will mean if, and unfortunately when, it becomes final.
In reading the decision myself, I was particularly struck by Alito’s myopic review of the legal history of abortion in America which facilitated his distorted conclusion “that a right to abortion is not deeply rooted in the Nation's history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Alito devotes significant space to a historical review grounded primarily in a lengthy discussion of common law as originated in the British Colonies. Yes, that’s correct. The crux of Alito’s argument relies on a carefully curated selection of cases and treatises occurring prior to the signing of the Declaration of Independence to suggest that even though common law did not expressly prohibit abortion it did in some instances hold people accountable for damage done to the fetus, including death, particularly before the period of quickening or first movement. Even for a self-proclaimed originalist this is a bit much.
Alito’s reliance on British common law and sparse examples from the late 16th and early 17th century are illustrative – revealing a lack of legal consensus or even formal position on the question of abortion in early American law and culture. Z Acevedo explains in an article for the National Library of Medicine: “From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states. During the 1860s a number of states passed anti-abortion laws. Most of these laws were ambiguous and difficult to enforce.”
Interestingly, Alito dismisses entirely the critical distinction made in early common law regarding quickening or the first felt moment of movement from the fetus. This distinction was integral in early abortion law which primarily prohibited only procedures happening post-quickening. Alito scoffs, “At any rate, the original ground for the quickening rule is of little importance for present purposes because the rule was abandoned in the 19th century.” Convenient isn’t it that Alito just gets to dismiss the nuances of the law that don’t suit his agenda?
In fact, Alito’s main argument is one of omission. He explains, “Although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. We are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.” Alito wants us to believe that because no existing laws expressly permitted abortions, they were indeed universally abhorred and not a part of the “history and tradition” of this country. Well, Justice Alito you couldn’t be more wrong. Abortions have always been a part of our history and they always will.
The true history of abortion in America
For as long as people could get pregnant, they have desired control over the process. The earliest known abortions took place in Egypt in 1600 BC and the procedure has been documented in every civilization since antiquity – including America.
Despite its prevalence, or rather in spite of it, lawmakers criminalized abortion in hopes of eradicating the practice. Alito gleefully observes: “In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.” These laws, much like present day bans, didn’t stop people from getting abortions but instead shrouded the procedure in shame and secrecy leading to a sharp increase in self-induced abortions and medically unsupervised procedures.
In 1936 the National Committee on Maternal Health sponsored a comprehensive survey of abortion in America performed by Dr. Frederick J. Taussig. His findings speak to the both the frequency of abortion in the twentieth century and its deadly consequences.
For the United States the figures obtained showed that 681,600 abortions times a death rate of 1.2 per cent equaled about 8,000 abortion deaths annually.
In the past forty years there has been a marked increase in the number of abortions, due to a widespread resort to induced interruption.
With the decrease in birth rates during this period, the ratio of abortions to confinements has changed from 1 to 7 forty years ago, to 1 to 3 at the present time. In some industrial centers the number of abortions approximately equals the number of full-term deliveries.
Of the total abortions only 25 to 30 per cent are spontaneous, 10 to 15 per cent are therapeutic and about 60 to 65 per cent are illegally induced.
Over one-half of the illegal inductions of abortion are done by physicians, one-fifth by midwives and, the remainder by the patients themselves.
The vast majority of all abortions equaling 90 per cent occur among married pregnant women, especially those between 25 and 35 years of age who have had several children.
The rate of abortion deaths is half again as high among [black women] as among the white women of this country, but the total maternal death rate among [black women] is twice that of the whites.
The number of abortions and the number of abortion deaths is proportionately twice as great in the cities as in country districts.
Abortion constitutes the greatest single factor in our high puerperal mortality, one-fourth of the total amount. Of the deaths from puerperal septicemia alone, abortion is responsible for practically one-half.
In contemporary American, organizations like Shout Your Abortion provide a crucial outlet for women to tell their story, but in the early twentieth century it was illegal to publicly discuss any issue of a sexual nature much less abortion. Yet, women demanded to be heard and wrote letters in droves to the Motherhood Department of the American Birth Control League. In 1925 they received over 28,000 letters including the two below. This is the history conspicuously absent from Alito’s review.
Although improvements to modern medicine marginally improved outcomes from self-induced or illegal abortions the death toll remained high exemplifying the utter failure of abortion bans – both in preventing the procedure and protecting the health of people who seek abortions. The Guttmacher Institute notes:
In 1930, abortion was listed as the official cause of death for almost 2,700 women—nearly one-fifth (18%) of maternal deaths recorded in that year.
In 1965, illegal abortion still accounted for 17% of all deaths attributed to pregnancy and childbirth that year.
An estimated 829,000 illegal or self-induced abortions occurred in 1967.
Of the low-income women in that study who said they had had an abortion, eight in 10 (77%) said that they had attempted a self-induced procedure, with only 2% saying that a physician had been involved in any way.
In 1962 alone, nearly 1,600 women were admitted to Harlem Hospital Center in New York City for incomplete abortions, which was one abortion-related hospital admission for every 42 deliveries at that hospital that year.
In 1968, the University of Southern California Los Angeles County Medical Center, another large public facility serving primarily indigent patients, admitted 701 women with septic abortions, one admission for every 14 deliveries.
The Centers for Disease Control and Prevention estimates that in 1972 alone, 130,000 women obtained illegal or self-induced procedures, 39 of whom died.
From 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women.
We won’t go back.
From a purely legal standpoint, Alito’s argument is not incorrect. There is indeed no legal tradition supporting the right to abortion in this country. And if we dig as far back as Alito did to cobble together his argument, there is also no legal tradition of freedom or a right to vote for non-white men. No legal tradition of equality. No legal tradition of any kind supporting the full humanity, autonomy, and rights of individuals who challenge the rigid power structures baked into the founding of this country.
When advocates chant “We Won’t Go Back” this is the back they are referring to. This is the true history of abortion in America.
