The Right to Abortion and the Leaked Supreme Court Draft
“The inescapable conclusion is that a right to abortion is not deeply rooted i the nation’s history and traditions…”
Dobbs v. Jackson (2022), 19-1392, leaked draft, p. 24
“The court must not fall prey to … an unprincipled approach. Instead guided by history and tradition that map the essential components of our nations concept of ordered liberty.”
Dobbs v. Jackson (2022), 19-1392, leaked draft, p. 14
Megan Chance
26. May. 2022
I
n May 2022, a Draft Opinion authored by Supreme Court Justice Alito was leaked from the Supreme Court which suggested it is poised to announce a ruling which will overturn Roe v. Wade, the 1973 decision which confirmed the constitutional right to abortion in all states. There is a lot of legal analysis circulating currently, but a lot of the Draft relies on historical ‘rights’ and precedents. Alito’s language seeks to ascertain the ‘right’ to an abortion. However, what determines if something is a ‘human right’ has been contested across history, and this is something intellectual historians are familiar with. In the Draft Opinion, Alito does not determine what kind of right he is referring to but it must contribute to ‘ordered liberty’ and be part of the ’history and traditions of the Nation’ (Dobbs v. Jackson (2022), p. 8.). Therefore, for this purpose one may conclude that for Alito a right must be based in historical tradition and precedent throughout American history, and it must also not impede on societal order. This is the definition of rights we will use throughout this analysis even if it is not consistently applied throughout the Draft.
It is first important to make a reference to Alito’s arguments relating to the Fourteenth Amendment (ibid. pp.9-15). The Fourteenth Amendment reads:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
United States Constitution, XIV Amendment, 1866.
The Fourteenth does not protect any explicit rights, but provides a broad stroke which protects the life, liberty, and property of a person fairly and equally. The Due Process clause seen above, protects the first eight amendment rights and fundamental rights which are not mentioned in the Constitution. The latter is where Roe arguments abortion falls. Roe argues since there is no explicit reference, the right to abortion is implicitly found in the First, Fourth, Fifth, Ninth and Fourteenth Amendments (Dobbs v. Jackson, p. 9).
Alito, however, questions why the Equal Protection clause wasn’t used by Roe or Casey. The Draft reads:
“…abortion is not a sex-based classification is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical produce that only one sex can undergo does not trigger the heightened constitutional scrutiny unless the regulation is a “mere pretext […] designed to effect the invidious discrimination against members of one sex..”
(Ibid. p. 10)
As a result of the above, Alito rejects the Equal Protection clause. Yet, if abortion is to be considered in this case as a medical procedure and in line with the Fourteenth Amendment’s protections to life, liberty and property, then why does Alito not consider it simply as that? Instead, Alito foregrounds his paper by describing abortion as a “profound moral issue”, not a medical one (ibid. p. 1). Alito goes further to complicate his argument by stating there is no reason abortion should not be “governed by the same standard of review as other health and safety measures” (ibid. p. 11). Something also worth mentioning in light of Alito’s rejection of the Equal Protection clause is that the US has voted in favour of the Universal Declaration of Human Rights of 1948 but it has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women.
Whilst in principle the regulation of abortion might not at its core be discriminatory to one sex as a medical procedure, because it can only be performed on people with a uterus, however, there are very discriminatory and problematic ramifications. Since the leak, we have seen the discussion of laws banning ectopic pregnancy abortion, rights for rapists, poor maternal care and support systems and the banning of contraception. These conversations are primarily being led by white, straight, male lawmakers in the US states, which could arguably create the invidious discrimination of women, given the lack of representation, and therefore the Equal Protection clause is invoked. It is one thing to argue in theory that to lose the right to a medical procedure is not a discrimination, but in reality the regulation of abortion will infringe on the rights of women to contraception, bodily autonomy, the right to work, the right to housing, the right to good mental and physical wellbeing.
Alito’s argument in the first section of the Draft is obscure and convoluted; it holds no clear definition of rights, nor does it recognise the complexity of abortion. The argument seems to reject suggestions that the Fourteenth’s protection of liberty protects a woman’s right to autonomy. To support his argument, Alito refers to Glucksberg and the right to assisted suicide, which was rejected under the Fourteenth because there was no historical precedent in common law. At this point Alito changes his definition of a right from being based in the traditions and history of the Nation to being based in Anglo-American common law. He does, however, say that “historical inquiries of this nature are essential whenever we are asked to recognise a new component of the “liberty” protected by the Due Process clause…” (ibid. p. 13.). He goes further to reference Isiah Berlin who noted that there are over 200 definitions of liberty – another debate intellectual historians are accustomed to. Still, Alito argues the Court should be and has been reluctant to recognise rights not mentioned in the Constitution – a problematic statement which others have argued will allow for the repeal of other laws and rights across the US such as same-sex and inter-racial marriage.
English Common Law
“Until a few years before Roe was handed down, no federal or state court had recognised [the right to abortion].”
(Ibid. p. 15)
In the next section of the Draft, Alito discusses Anglo-American history relating to abortion. He prefaces this section by stating that there was no federal right, no scholarly treatise, no common law or articles, and since “Roe either ignored or misstated the history, and Casey declined to reconsider…It is important to set the record straight.” (ibid. p. 16). It would be important to remember, however, that prior to Roe, academia was still dominated by men who were significantly more interested in male history. Women’s studies has not been around for much longer than Roe itself.
In Alito’s words, the right must be found in “the history and tradition of the Nation”, so one may assume this was just US history. However, Alito references history from both American and Great Britain. He also references the Greek and Roman Republics, which inspired the American republican experiment, and given that Alito has mentioned this and it was included in the historical survey which formed the basis of Roe, one may deem it fair to critique.
Alito asserts “[in ancient civilisations] infanticide was widely accepted”. (Ibid. p. 43). Alito references several papers which discuss ‘exposure’ – this was typically the abandonment of a child either physically abandoning the child or through sale to slavery. This was used to limit family size and arguably cruelty was limited. Romans argued for paterfamilias where the father possessed absolute life and death over al children, as they were his property and therefore it appears in Roman law it was a fundamental right of the father, with autonomy over his family, to dispose of children as he saw fit. In this sense, there is a comparable argument to say if the father had the right to choose if a child would be part of his family, then today the mother would have the same choice. A further argument here is the use of exposure to limit family size if it was not economically viable to care and provide for that many children.
Whilst Alito references infanticide, not abortion, the Romans had a similar approach to abortion. They followed the Stoics who believed a foetus was not a person until it moved, or ‘quickened’, and abortion before this was only punishable if it was not agreed by the father because the father had lost ‘property’. In line with the paterfamilias approach, the father had the right to dispose of his offspring, or property. In such a case, abortion was not a moral issue but an economic one, and reproductive rights continued to be an economic, not a moral issue.
Further to this, laws composed in 900 A.D. read:
“If anyone slays a woman with child, while the child is in her womb, he shall pay the full wergeld for the woman, and half the wergeld for the child, [which shall be] in accordance with the wergeld of the father's kindred…”
The Laws Of The Earliest English Kings, (Russell & Russell. 1963), 194, p. 34.
In other words, both the mother and child are the father’s property and a fine must be paid to him for the loss of his property. Prior to the eighteenth century, the only reference used by Alito which suggests abortion (and homicide) to be a moral issue is Henry de Bracton’s thirteenth century treatise (Dobbs v. Jackson, p. 16). However, Bracton also references the Church doctrine that aborting a foetus before quickening was not murder. Further to this, William Stanford establishes in English common law in 1557 that for a homicide to occur, the law required that the thing killed was part of the world of “physical beings”.
In early modern England, illegitimacy rates peaked and this is also an important part for the change in laws regulating reproduction. This is not an undocumented phenomenon; there was a revolution in manners in the seventeenth and eighteenth centuries which forced sexuality into the private sphere. Laws regulating reproductive rights came from the perceived social disorder caused by freedom of sexual expression. As illegitimacy rates soared, families were thrown into poverty and there were fears about the financial burden of children. Jacobean and Elizabethan lawmakers attempted to regulate adultery and illegitimacy but these laws failed as they risked catching the nobility out, as well as the lower classes, but illegitimate children still challenged the social order. This context is important for the case for abortion in early modern England, which Spivack argues was not regulated because the term puerpera only referred to women in very advanced pregnancy. Until the early 1500s, abortion and infanticide were not as serious as homicide because they were used for social enforcement. In 1623, the ‘Acte to P’vent the Murthering of Bastard Children’ was introduced which dealt with the murder of bastard children. The Act did not refer to children born, died or aborted in marriage because the destruction of embryos in marriage was accepted sexual conduct.
Alito references Coke and Blackstone, yet both men reference life as beginning by the stirring of a foetus in the womb, which occurs in the 16th-18th week of pregnancy. To reconcile this, Alito argues pre-quickening abortion was allowed but not accepted referencing one case in which a judge determined the case to be barbarous and unnatural (Ibid. p. 18). Alito makes a habit of naming treatise and indictments without explaining the context, which allows the argument to fall in his favour, but it is not for a lawyer to determine if there is a history and tradition of abortion across the Nation, but rather a task for an historian. It takes Alito no more than four pages and a reference to four male treatises on abortion in common law to conclude that, despite differing on punishments, no authority condoned abortion and none have suggested a positive right to one. However, in English common law, whilst there was no explicit positive right to abortion pre-quickening, it was not criminalised or considered unlawful except where there was an economic motive, as expertly explained by Spivack in To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England (2007).
Common Law in the United States
Then to return to common law in America. In the US, common law deemed life to begin at quickening in early American law and followed a “female-centric principle” which allowed for abortion until the woman felt the foetus move. Rather, any cases which are referenced homicide of an unborn child was from assault on the mother rather than abortion. In these cases, it was the injury to the mother and loss of property to the father which was criminal, not the termination of the foetus. In fact, the American Historical Association unequivocally states before the 1820s that a pregnant woman was allowed extensive decision making, and it was until this point that common law governed abortion.
In the 1820s, regulation of abortion began. It was first included in anti-poisoning statutes in Connecticut in 1821, but until 1839, eighteen states still retained common law. It was in the 1840s that news outlets sensationalised trials, and abortion cases became newsworthy. These news reports presented vulnerable victims pursued by aggressive suitors, the foetus was only mentioned occasionally to clarify gestational age but the focus was on the young woman’s death. As in Jacobean and Elizabethan England, it was sexual freedom which led to the regulation of reproductive rights of women. In 1859, fifteen of thirty-three states still followed common law – in ten, abortion was not criminalised and in five it was criminalised after quickening.
It was nearly a century after the Declaration of Independence that abortion was heavily regulated, and this was once again economic not moral. Horatio Storer launched a national attack based on two grounds: concerns about immigration and the abandonment of motherhood by women. Storer wrote ‘Why Not? A Book For Every Woman’ and as a man dictated the duty to be a mother and the selfishness of abortion. Storer villianised women as ‘legalised prostitutes’, alongside immigrants who were less likely to get abortion, and blamed white women for the declining birth rate. Storer’s campaign had mixed success; states began to introduce statutes against abortion but prosecution and conviction remained low. It was in the post-Civil War years that abortion was regulated by the state, but before this Roe was correct in its central conclusion that American history and tradition allowed women’s autonomy regarding abortion.
The relevance of both Storer’s campaign and the earlier mention of the regulation of sexuality in early modern England can be found in Alito’s draft where he rejects the idea that abortion laws resulted from concerns about illicit sexual conduct rather than foetal right to life (Ibid. p. 44). Both Storer’s arguments and Spivack’s paper provide proof that this context is important to the regulation of sexuality and reproductive rights. Furthermore, in the same breath, Alito argues to put forward the historical argument that abortion laws arose from racial motivation, and the intention to oppress the sexuality of unmarried women illustrates a lack of any historical support for the right determined in Roe and Casey (Ibid. p. 28.)
Alito rejects the notion that the historical argument that abortion laws arose from racial motivation and the intention to oppress the sexuality of unmarried women illustrates a lack of any historical support for the right determined in Roe and Casey. Yet, he fails to mention that the regulation of reproductive rights and violation of sexuality has been commonplace discrimination by lawmakers against African-Americans and Native Americans.
There are countless cases of enslaved women being raped and forced to give birth because these babies were seen as the enslaver’s property – it was a way to maintain an enslaved population. Abortion was the only power these women had over their body, the choice not to bring a child into the horrendous world they were living in. The autonomy they had after a rape by their enslaver not to bear his child. However, when these women did carry to term, their babies were ripped away or their pregnant bodies tortured. In the late eighteenth and early nineteenth century, Black babies were fed to alligators as bait. Meanwhile, James Marion Sims conducted horrendous experiments on pregnant women; Lucy, Betsy and Anarcha in Alabama.
Similarly, Alito ignores Native American history, because when he refers to ‘history and traditions of the Nation’ he means the republican states when White Christians colonised America. Native American’s had herbal supplements which helped a woman control her body. Stoneseed was used as a contraceptive, whilst some indigenous cultures showed abortion was commonplace. However, whilst this is an important part of American history, this is not the reproductive right to draw Alito’s attention to but rather the violation of the reproductive rights of Native American’s in the 1970s which saw the coerced mass-sterilisation of twenty-five per cent of Native American women.
Conclusion
Abortion has always been an economic issue; it has been one of social order just as Alito now calls it a matter of ‘ordered liberty’. Ignoring this context is erroneous and misleading and to say the context is irrelevant is even worse because it dismisses the oppression of women’s autonomy, the horrendous disrespect for Native American reproductive rights and the eugenic treatment of them, and it dismisses the personhood which was removed from Black women and children who were abused so abhorrently. Alito may argue that abortion is a moral issue but he ignored the moral histories which do not suit his narrative. Nor does he recognise abortion to be about more than a ‘medical procedure’ but a gateway to oppression of reproductive rights which again centres American republicanism around white, powerful men at the expenses of any other person.
Megan Chance is an Mlitt student in Intellectual History at the University of St Andrews.
Further reading:
Amy B. Wang, Felicia Somnez, Caroline Kitchener, ‘Oklahoma lawmakers pass bill banning abortions after ‘fertilisation’, Washington Post, 19th May 2022.
Stephanie Kirchgaessner, ‘IVF treatment faces ‘clear and present danger’ from US anti-abortion effort’, The Guardian, 12th May 2022.
Elaine Godfrey, ‘The GOP’s Strange Turn Against Rape Exceptions’, The Atlantic, 4th May 2022
W. V. Harris, (1994), ‘Child-Exposure in the Roman Empire’, Journal of Roman Studies.
A. Cameron, (1932), ‘The Exposure of Children and Greek Ethics’, The Classical Review, 46(3)
H. Bennett, (1923), ‘The Exposure of Infants in Ancient Rome’, The Classical Journal, 18(6)
W. J. Watts, (1973), ‘Ovid, The Law And Roman Society On Abortion’, Acta Classica, 16
Carla Spivak, (2007) ‘To Bring Down the Flowers: The Cultural Context of Abortion Law in Early Modern England’, William & Mary Journal of Women and the Law, 14(1).
Angela Y. Davis, ‘The Legacy of Slavery: Standards for New Womanhood’, Women, Race and Class, (Penguin. 1981).
Franklin Hughes, (2017), ‘Alligator Bait Revisited’, Jim Crow Museum.
Monica Cronin, (2020) ‘Anarcha, Betsey, Lucy, and the women whose names were not recorded: The legacy of Marion J. Sims’, Journal of Anaesthesia, and Intensive Care, 48(3).
Becca Andrews, (2022), ‘Abortion Has Always Been Part of America – Even if Alito Won’t Admit It’, Mother Jones.
Erin Blakemore, (2016), ‘The Little-Known History of the Forced Sterilisation of Native American Women’, JStor Daily.
Brianna Theobald, (2019), ‘A 1970 Law Led to the Mass Sterilisation of Native American Women: That History Still Matters’, Time.
