By Dave Andrusko
In this, the last National Right to Life News Today post for the week, I’d like to use a passing comment, treated as gospel, in the opinion handed down Wednesday that overturned Idaho’s Pain-Capable Unborn Child Protection Act.
“Historically, abortion statutes sought to protect pregnant females from third parties providing dangerous abortions,” U.S. District Judge B. Lynn Winmill wrote. Why is that worth taking time to explore?
Because that myth is at the core of an entire literature whose founding document was written by New York Law school Professor Cyril Means , referenced approvingly over and over and over again by Justice Harry Blackmun, the author of Roe v. Wade.
We have debunked and interred that myth many, many times but it refuses to stay buried. To cite just three examples, www.nrlc.org/news/2006/NRL01/HTML/MythsPage17.html; www.nrlc.org/news/2006/NRL03/HTML/MythsSequel.html; and http://www.nationalrighttolifenews.org/news/2012/12/the-remarkable-shelf.
I will be reviewing a forthcoming book by Professor Justin Dyer (“Slavery, Abortion, and the Politics of Constitutional Meaning”) as soon as it is published. I learned of Prof. Dyer’s scholarship from a keenly intelligent article he wrote for National Review Online.
Why? If for no other reason (and it is a hugely important reason) that he also critiques the “orthodox” history on why abortion laws were enacted in the 19th century.
Dyer, who teaches political science at the University of Missouri, used two relatively new books which rely on the orthodox pro-abortion history written by Professor Means.
Means, as Dyer notes, was counsel for the National Association for the Repeal of Abortion Laws (the original name for NARAL), “who took the lead in drafting the new abortion history in the 1960s.” That took the particular form of a 1968 article published in the New York Law Forum.
The gist of the “new abortion history” is that abortion was “(1) a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children.” Neither was true.
I thought I knew the background pretty well—the role Means’ arguments played in Roe. (Blackmun cited his work seven times). What I didn’t know until I read Dyer is that the team pushing to overturn the abortion laws, led by Sarah Weddington, also likely knew that Means was grinding out propaganda, not accurately recording history. Dyer writes
“The problem (as Weddington almost certainly knew) is that Means’s central claims were not true. In a memo circulated among Roe’s legal team in the summer of 1971, a Yale law student named David Tundermann warned that Means’s ‘conclusions sometimes strain credibility.’”
What really rocks you is what (as Dyer described it) “Tundermann tellingly concluded”:
“Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s 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.”
Take the time to read Dyer’s post. He does a great job of demonstrating how this bogus narrative has been carefully nurtured by scholars who should have—or could have—known better.
Worse yet, additional layers of myth has subsequently been added—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 is a human being.”
Here is Dyer’s conclusion:
“The suggestion — still made today by credentialed historians, legal scholars, and respected journalists — that protecting the lives of the unborn was not the purpose of the abortion statutes overturned by the Supreme Court in 1973 is absurd. Although the role of history in abortion litigation has quietly faded to the background in the Court’s most recent abortion cases, it bears noting that the politically motivated abortion history crudely constructed by activists and academics in the 1960s and 1970s has enjoyed a remarkable shelf life. Forty years after Roe v. Wade, as we debate the legacy of the decision and consider the state of abortion politics, it is time to lay to rest this fraudulent history — a history that would be far less tragic if it did not involve matters of life and death.”