Roe v. Wade

A historian’s brief in the Supreme Court case of Dobbs v. Jackson Women’s Health Organization dispels the myths of abortion history

By Dave Andrusko

Today, we continue to examine amicus briefs filed in the important case of  Dobbs v. Jackson Women’s Health Organization which the Supreme Court will hear this fall. We began this series on July 22 and it has been well received.

As you no doubt already know, the justices will hear the state of Mississippi defend its ban on abortions after 15 weeks of pregnancy with very limited exceptions.  The law was blocked by Judge Carlton W. Reeves of the Federal District Court in Jackson, Mississippi in 2018. Judge Reeves’s decision was subsequently upheld by a three judge panel of the U.S. Court of Appeals for the 5th Circuit, although reluctantly by one of the three judges, as NRL News Today explained.

I find this brief, submitted by Joseph Dellapenna, a retired professor of law, particularly fascinating. We reviewed and/or alluded to his massive book, “Dispelling the Myths of Abortion History ,” on many occasions. See, for example, here and here.

In his amicus brief, Prof. Dellapenna describes his book as “the only study to combine the medical (technical), social, and legal history of abortion in England and America from the birth of the common law to create a richly textured account of abortion practice and law.”

Here are five highlights  from his amicus brief.

#1. Prof. Dellapenna’s amicus is intended “to bring the Court’s attention to the erroneous history on which Roe v. Wade (1973) was based, setting before the Court an accurate account of the common and statutory law relating to abortion in England and America across eight centuries, demonstrating that there is no longterm legal or social tradition of acceptance of abortion that could form the basis of a constitutional right to choose abortion.”

As Susan Wills wrote for us in her review of “Dispelling the Myths of Abortion History,”

Truth matters. The entire edifice of U.S. abortion law is constructed on lies and deceptions–lies about when life begins, the scope of ‘privacy’ in the Constitution, the meaning of the Ninth and Fourteenth Amendments, about applicable (but ignored) precedents, and, significantly, about the history of abortion law and practice.” 

#2. Malicious misrepresentation:

The majority in Roe v. Wade,  influenced by deliberately distorted presentations of the history of abortion laws that have also been pressed upon the Court in subsequent cases, erroneously concluded that abortion was not a common-law crime. Instead, the historical record shows that (a) abortion and other killings of unwanted children were condemned by all respected legal authorities in England from the start of the common law and (b) those laws were applied with full rigor in the United States during the colonial era and into the nineteenth and twentieth centuries, including when the Fourteenth Amendment was adopted. 

When viewed through the proper historical lens, this leg on which the Roe majority rested collapses. Abortion was a common-law crime from the earliest recorded days, and the common law was followed and codified in the states and territories in order to protect the life of the unborn child.

NRL News Today and the monthly NRL News have published on this subject dozens and dozens of times. History was not misunderstood. This was not an honest debate. Fabricating an alternative (and untrue) history of abortion in America and beyond was a deliberate pro-abortion strategy, par for the course for abortion advocates.

Speaking of which…

#3.  Means and Mohr:

The majority in Roe relied uncritically on the work of Cyril Means, Jr., who was then general counsel for the National Association for the Repeal of Abortion Laws (NARAL).Means distorted abortion precedents and statutes and ignored the larger social  and technological context in which they were grounded. Abortion advocates also now rely on the work of historian James Mohr, as expressed in the “Historians’ Briefs” in [the Supreme Court cases of] Webster and Casey. These histories of abortion are advocacy pieces with a highly selective examination of the evidence to support a partisan and distorted reading.

Selective,” “partisan,” and “distorted” is putting it mildly.  But also hugely influential. As Prof. Justin Dyer wrote for National Review Online, “Roe’s attorney, Sarah Weddington, submitted copies of Means’s articles as supporting documents for the case and then relied heavily on his history during oral arguments. The effort seems to have paid off: Justice Harry Blackmun cited Means seven times in his Roe opinion. Recounting her reaction when the opinion was released, Weddington wrote, “I had not been reading the extensive footnotes at the bottom of each page closely, but sure enough, when I did I found several referring to Cyril Means’s writings; I knew he would be pleased.”

#4. Dellapenna titles one subsection, “The Prohibitions of Abortion Represented a Widely Shared Consensus on the Value of Fetal Life, a Consensus that Included Nineteenth-Century Feminists and, Thus, Cannot Properly Be Characterized as a Conspiracy by Male Physicians and Others to Suppress Women The nineteenth century.”

Pro-abortionists insisted—and insist today—that protective abortions laws inevitably represent the outpouring of anti-woman sentiment by a cabal of older white men with animus in their hearts. In truth

This broadening [of abortion statutes to reach all abortions regardless of the technique used or the stage of pregnancy] suggests, as contemporary courts generally held, that protection of fetal life was the major purpose of the statutes. Many religious and social leaders also supported treating abortion as a crime. Only by impugning the integrity of innumerable social and professional leaders can one argue that protection of unborn children from abortion was not a significant concern. …Feminist abhorrence of abortion arose because the feminists viewed abortion as the killing of a child.

#5. Conclusion. 

The historical predicates on which Roe was based are incorrect. The common law always made abortion illegal, and the main motivation was protection of the lives of unborn children, from the earliest moment of their life in the womb. …

Roe should be overruled, with the Court adopting an accurate statement of the common law and the history of abortion. With that established, the viability distinction of Roe should be abandoned and the Mississippi statute should be upheld.

Author and journalist Norman Cousins once said, “History is a vast early warning system.” We would paraphrase to say, “History, fairly and objectively presented, is a vast early warning system against pro-abortion lies and distortions.”

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