In his leaked majority draft opinion making an argument for overturning Roe v. Wade, U.S. Supreme Court Justice Samuel Alito delves into United States history. Author Leslie J. Reagan, who teaches law and history at the University of Illinois, Urbana-Champaign, analyzes parts of Alito’s draft in an op-ed published by Politico on June 2 — and lays out some things the socially conservative justice gets “egregiously wrong” about the history of abortion in the U.S.
Alito, in his draft, writes, “An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” But according to Reagan, author of the book “When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973,” that statement fails to capture the nuances of the legal history of abortion in the U.S.
“The logic that Alito uses in the draft opinion leans heavily on history — history that he gets egregiously wrong,” Reagan explains. “Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before ‘quickening’ was legal under common law and widely accepted in practice.”
The term “quickening” refers to when a woman first begins to feel movement in the uterus.
According to Reagan, Alito’s draft opinion in Dobbs v. Jackson Women's Health Organization — the case that could lead to Roe’s demise after 49 years — Alito “sidesteps” some “well-established history.” The history of abortion in the U.S., Reagan stresses, isn’t nearly as black-and-white as Alito makes it out to be.
“The first laws in the United States governing abortion, passed by states in the 1820s and 1830s, banned the furnishing of drugs — ‘poison’ — intended to induce a miscarriage of a ‘woman, then quick with child,’” Reagan notes. “The first such law in Connecticut aimed to punish men who seduced women then, instead of marrying them when pregnancy developed, coerced them into using abortifacients.”
Reagan continues, “These first laws were essentially poison control measures intended to protect women from both abusive men and the sometimes-deadly herbs and medicines marketed to bring on their menses. These first laws also referred only to inducing miscarriage after quickening. It is essential to recognize that these laws did not criminalize drugs used before quickening. The nation’s earliest laws assumed the existing common law right of women to regulate their menses — and to abort early pregnancies.”