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On the absurdity of ‘deeply rooted’ tradition

<h5>Scene outside Supreme Court after decision on Texas abortion case</h5>
<h6>“<strong>Supreme Court keeps abortion legal</strong>” by Adam Fagen / <a href="https://www.flickr.com/photos/afagen/28521172920" target="_self">CC BY 2.0</a></h6>
Scene outside Supreme Court after decision on Texas abortion case
Supreme Court keeps abortion legal” by Adam Fagen / CC BY 2.0

The following is a guest contribution and reflects the authors views alone. For information on how to submit an article to the Opinion Section, click here. 

This past week, Associate Justice of the Supreme Court Samuel Alito’s draft of what may be the majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked to the public. Court watchers had long suspected that the ruling in June would overturn Roe v. Wade, but Alito’s opinion is more radical and aggressive than many had anticipated.

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Alito’s opinion hinges on the premise that the right to an abortion is not enumerated in the Constitution, nor is it protected by the Due Process Clause of the Fourteenth Amendment, which has often been invoked to uphold rights not specifically enumerated in that foundational document. The reason? According to Alito, the Due Process Clause only protects rights which are “‘deeply rooted in this Nation’s history and tradition’” and “implicit in the concept of ordered liberty.’” And, per his opinion:

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages.” (Dobbs v. Jackson Women’s Health Organization, first draft, p. 15)

I am not a scholar of Constitutional law. I won’t pretend to have the expertise to debate the merits of Alito’s legal reasoning on the Due Process Clause. I am, however, a historian who teaches a course on the cultural history of reproduction from ancient Greece to Enlightenment Europe, and I am here to tell you that Alito’s historical precedents, in fact, aren’t precedents at all. Nothing about legal history or tradition dictates the erasure of the protections afforded by Roe v. Wade.

Alito is right that abortion was not enumerated as a right in English common law or American jurisprudence until the 20th century. He is, nevertheless, wrong to say that abortion “at all stages” of pregnancy was considered unlawful in early America. Perhaps if he had more closely read the amicus curiae brief prepared for the court by the American Historical Association and the Organization of American Historians — the two most prominent associations representing the profession in the United States — he would have learned that common law “did not even recognize abortion as occurring” in early pregnancy. 

In early modern England and early America, abortion was only a crime after “quickening,” or the gestational age after which a pregnant person could detect fetal movement (often around 16–20 weeks gestation). Prior to that gestational age, there was no accepted standard for recognizing pregnancy or fetal life. It wasn’t until the mid-19th century that states began to pass more stringent laws to restrict abortion at any stage of pregnancy. In fact, authors of the majority opinion in Roe v. Wade knew their history better than Justice Alito when they cited the “history of abortion,” recognizing that “with respect to the early stage of pregnancy [...] the opportunity to make this choice was present in this country well into the 19th century.”

Our legal system, derived from English common law, is built on allegiance to precedent. This is why both Roe v. Wade and Alito’s draft opinion on Dobbs invoke history as their authority in their arguments. Precedent is what keeps judges from making arbitrary decisions based on personal feelings rather than established law. Of course, Roe v. Wade is established law — and, it’s history, too. 

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But Justice Alito doesn’t want to recognize that law. Instead, he chooses to fight law with history, to invoke an even deeper past to suit his needs. As an expert on that deeper past, I found myself in a position to set the record straight on Twitter last week in a thread that debunked Alito’s argument that abortion was always “unlawful” and which explained how medieval practitioners recognized the life and well-being of a pregnant person as inherently more worthy of protection than that of a fetus.

But in the days since, I’ve been thinking about how my intervention in this debate gives weight to the premise that history, if invoked correctly, provides the only authoritative framework for determining a possible future. Even when I (correctly) cite the legal precedent of English common law to uphold Roe, I am acquiescing to the premise that our rights depend on the imperfect actions of imperfect people in the past. But, as we know, history cannot show us what justice and equality for Black Americans or LGBTQ+ Americans should look like. Nor can the history of abortion as I know and teach it to my students at Princeton offer anything close to a vision of reproductive justice. 

The only reason abortion laws appear more lenient in the past than the present had to do with medical theory in premodern Europe. While we now think of a missed period as a sign of early pregnancy, there is little evidence that early modern people felt the same way. The 15th- and 16th-century remedy books I study are filled with recipes for “bringing on a woman’s flowers [menses],” which some historians have interpreted as evidence for the widespread use of abortifacients. But not only is it unlikely these herbal remedies would have been all that effective at bringing on menstruation, such a practice would also not have been understood as abortion. 

According to the Galenic humoral theory that structured medical practice for much of the early modern period, regular menstruation was paramount to a woman’s health. The Hippocratic writers thought that a woman should menstruate heavily (as much as a pint of blood!) every month, and if she did not, she would become ill. Menstruation was the means by which she could purge the blood that built up in her body and balance her humors. In other words, if a woman’s “flowers” failed to arrive on schedule, medical intervention was necessary to restore health. Nothing about their understanding of this practice implicated the termination of a pregnancy. 

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It is only with our more comprehensive medical knowledge of the complex processes of fertilization, implantation, and gestation that we see these recipes as akin to emergency contraception or abortion pills. Early modern jurists did not have this knowledge, and so they used “quickening” as the criteria for establishing pregnancy and fetal life. As soon as that criteria was met — really, as soon as physicians and jurists could be certain of the status of a woman’s body — authorities were more than happy to prosecute those women both for choosing not to give birth and for choosing to give birth out of wedlock

Given the harshness of early modern penalties against extramarital sex and illegitimacy, I am inclined to believe that if early modern jurists had had ultrasounds and had known what we know now about fertilization — in other words, if they could monitor women’s bodies as closely as we can — they would have prosecuted abortion as harshly as possible, perhaps even as much as Louisiana legislators hope to do if they pass a proposed law to make all abortions illegal at any stage of pregnancy. So no, I don’t think history is our friend in the fight for reproductive justice.

But if history cannot provide precedent for a more just future, neither can it be tamed to fit Alito’s argument, narrated only as a series of discrete and rational decisions entirely devoid of context. When we place those decisions in their historical context, it is easy to see the absurdity of Alito’s allegiance to “deeply rooted” tradition. 

For example, did you know that in the 13th century, when Henry Bracton compiled the legal treatise cited by Alito in his draft opinion, natural philosophers, drawing on the writings of the ancient physician Galen, believed that women’s reproductive organs were simply inverted versions of male organs? Or that in the 16th century, when Sir Edward Coke authored another major legal treatise cited by Alito, prevailing medical opinion held that women occasionally gave birth to serpents or dogs, and that when they did, it was often because of an “ardent and obstinate imagination [impression] that the mother might receive at the moment she conceived”? Or that the esteemed 17th-century jurist Sir Matthew Hale, also cited approvingly by Alito, condemned two women to death for witchcraft?

Abortion is a medical procedure, practiced in this country by licensed physicians. According to the CDC, abortions were performed 92.7 percent of the time before the end of the first trimester (or well before quickening) in the United States in 2019. But when we talk about abortion today, we don’t use terms like “quickening” because we don’t follow 16th-century standards when it comes to medical care. Imagine what would happen if obstetricians were bound by the precedent of 16th-century anatomist Andreas Vesalius (who drew the uterus as an inverted penis) or by the concept of fetal development espoused by 16th-century surgeon Ambroise Paré (who wrote about cases of monstrous births). The very idea is absurd, because we can all agree that these very old ideas about reproduction are nonsense, rooted in debunked medical theory and outright misogyny.

The very same could be said of Alito’s draft opinion.

Melissa Reynolds is the Perkins-Cotsen Postdoctoral Fellow in the Society of Fellows in the Liberal Arts and a Lecturer in the Department of History and Council of the Humanities. She can be reached at melissa.reynolds@princeton.edu. 

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