LegaThe leaked Supreme Court opinion by Justice Samuel Alito that would overturn Roe v. Wade decision and criminalize abortion across the country, hinges on a contested historical review of restrictions on abortion that were enacted long ago, during the 19th century. Or, as the Hill calls it, “Justice Alito’s alternate abortion facts.”
Legal experts backing abortion rights are critical of Alito’s reading of history for his glossing over disputed facts and relevant details as he argues that abortion goes against the U.S. Constitution.
On the other hand, the pro-life movement has praised the opinion, arguing that Roe v. Wade itself was based on a faulty understanding of history.
Alito’s reasoning in the leaked draft was that the right to abortion was not “deeply rooted in this nation’s history.” This opinion, however, relies upon a reading of state laws from 1868 when the 14th Amendment, protecting due process rights, took effect and ended slavery after the Civil War.
Roe v. Wade argued that the right to abortion stems from that Amendment’s protection of due process rights, which the Court has found safeguards the right to privacy.
“To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states “had enacted statutes making abortion a crime” even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy – known as “quickening” – when the woman could feel the fetus move, usually at four to five months of gestation.”
Professor at the University of Akron School of Law in Ohio Tracy Thomas claims that Alito is very selectively citing history as presented by anti-abortion activists, saying “We do have to interpret history, but we also have to see the nuance, and he is missing the nuance.”
University of California, Davis law professor Aaron Tang warns that it’s dangerous to use such old precedent for modern issues, saying “There are huge risks trying to answer this 2022 question based on what happened in 1868.”
Legal historian David Garrow sums up the argument, saying “If you wanted to argue that abortion is deeply rooted in American history you don’t argue about state statutes…You argue about the evidence of demographic reality.”