The Supreme Court rejects the story of abortion

Monday’s revelation of a leaked draft opinion canceling Roe vs Wade it was shocking on many levels. It heralds the end of a constitutional right on which millions of Americans have relied for nearly half a century. It threatens dramatic political repercussions for the Supreme Court and elected officials. And it represents an extraordinary violation of court protocol.

But the most shocking aspect of the leaked opinion is something entirely different: the glaring historical errors that pervade its supposedly originalist analysis. Contrary to the conclusion of the draft, as long as America has existed, so have abortions, in most cases without any form of criminal punishment.

At the heart of the legal reasoning of the opinion is a firm test. on 14th The amendment, the draft acknowledges, protects unenumerated rights that are “deeply rooted in the history and tradition of this nation.” Applying this test, the opinion concludes that “the right to abortion does not fall into this category” because when the 14thth The amendment was adopted, “three quarters of states have made abortion a crime at all stages of pregnancy”. It is this alleged historical fact that allows the opinion to conclude that states should have free rein to ban abortion today.

The first problem is what the opinion openly admits: our nation’s history in reality does support the right to abortion for much of early pregnancy. The draft acknowledges that at the time of founding, people made a “distinction between pre- and post-acceleration abortions” and abortions were only criminally punishable if performed after the acceleration – the first noticeable movement of the fetus, which often occurs around the 15 years -16 weeks of pregnancy.

Recognizing this hitch in his reasoning, the opinion hinges on a new claim. The founding era acceleration rule is “of little importance” because at the time of 14th The amendment was ratified, “28 of the 37 states” had enacted statutes “making abortion a crime even if it was performed before the acceleration”.

Except that the 28 states say it is wrong – a fact also made explicit in the appendix to the opinion, which lists the abortion laws in force since 14th Adoption of the amendment. For example, the draft includes Nebraska and Louisiana as states that have banned all abortions at any point in pregnancy. Yet both states have actually banned only a few dangerous types of abortion, namely the use of “any poison or other harmful substance” (Nebraska) or “any drug or potion” (Louisiana). Neither state has prohibited the common practice of abortion using surgical instruments. The tally of 28 also includes Florida, conveniently overlooking the fact that the state did not ban abortion until after 14.th The amendment was ratified.

Even more striking is the draft opinion’s inability to understand state laws in the 19thth century as they would have been understood at the time by legislators, judges and the general public. To illustrate, the draft treats Oregon as a state that has banned early abortion by pointing to an 1864 law that punished anyone who performs an abortion on “any woman pregnant with a child.”

Opinion assumes this language applied to pre-acceleration procedures, but the truth is different: Oregon law simply echoed the long-standing common law rule, consistently upheld by every state at the foundation, that abortions are illegal only if performed after acceleration. The authority for this conclusion is hermetic: in 1909, Oregon prosecutors openly admitted to the Supreme Court of Oregon that according to the law of 1854 “abortion is not a crime” unless it involves the death of “a rapid fetus”.

The leaked opinion makes the same mistake for Alabama, believing the state bans pre-acceleration procedures under an 1841 statute that codified the common law ban on abortion on “any pregnant woman.” The Supreme Court of Alabama made it clear in 1857, however, that “any pregnant woman” meant what it always meant in common law: a woman who was “quick with the baby”. A pre-representative abortion was therefore “not punishable by law“In Alabama.

Similar problems plague the inclusion by the opinion of other state laws. the best proof is that only 16 of the 37 states have banned early abortion when the 14th The amendment was ratified. In the other 21 states, abortion remained perfectly legal during approximately 16 weeks of pregnancy. As one pastor explained in response to a married woman who consulted him about a pre-accelerated abortion, such an act was “no crime, because the child was not alive. “

All this undermines the leaked opinion. Prominent originals, including Michael McConnellat Stanford e Randy Barnett and Evan Bernickat Georgetown and Northern Illinois University respectively, they presented significant evidence that the 14th The original meaning of the amendment protects all rights that the substantial majority of states have respected over a long period of our nation’s history. The right to anticipate abortion fits comfortably into this definition; he was respected by every single state to the foundation, and to a majority when the 14th The amendment was ratified. Recognizing such a right to early abortion would be quite significant: the data prove it 96% of miscarriages in America today they occur before 16 weeks.

Furthermore, the right to early abortion persisted in early America despite an organized and misogynist campaign to ban it. States that have banned pre-acceleration procedures have done so based largely on tantalizing arguments about women’s inability to make their own reproductive choices, such as Horatio Storer’s infamous claim that pregnant women are like that. “inclined to. . . unbalanced“that shouldn’t be”authorized to judge [themselves] in this subject. ” Bigoted and factually inaccurate views such as these are no longer binding on our constitutional understandings of historical laws founded on white supremacy.

Ignorance of the leaked opinion on the true story of abortion – or worse, its duplicity – suggests that conservative majority judges are not, as they claim in the draft opinion, simply “do.[ing] our job, which is interpreting the law ”. Instead, as Judge Sonia Sotomayor suggested during the oral discussion, the flawed reasoning of the opinion creates a “stink” that the court’s reading of the Constitution on abortion is just a “political act.”

To that accusation we can now add another one: it is also ahistorical.

Aaron Tang is a professor of law at UC Davis and a former legal employee of Judge Sonia Sotomayor. @AaronTangLaw