Is the right to an abortion "deeply rooted in this Nation's history and tradition?"

Question

I recently came across an article on the internet containing the following passage: "Nearly all [of] the evidence that he [Alito] cites [in the recent-leaked draft of an opinion that would overturn Roe vs. Wade] shows that * pre-quickening * ... abortion was not criminalized" at the time that the 14th amendment to the US Constitution was adopted. (By the way I don't know what to make of those stars around the word "pre-quickening" -- perhaps quotation marks or a text effect like bold or italic text.)

Alito's claim that the right to an abortion is not "deeply rooted in this Nation's history and tradition" rests on similarly faulty ground. To back up his claim that abortion rights are not "deeply rooted," Alito cites the fact that 28 of the 37 states banned abortion throughout pregnancy at the time of the adoption of the 14th amendment, which contains the Due Process Clause that the court in Roe relied on to grant abortion rights.

Alito's argument about how the common law treated abortion is also remarkably weak,
Adam Winkler, a constitutional law professor at UCLA Law School, tweeted on Wednesday.

Nearly all the evidence that he cites shows that * pre-quickening * (about 16 weeks), abortion was not criminalized."

Is that legal opinion right? It seems pretty obvious to me that the right to an abortion is not deeply rooted in this Nation's history and tradition. Is the point genuinely open to question? Is Mr. Winkler right to say (if he does say) that abortion was generally legal for 16 weeks, roughly the first half of normal pregnancy?

Some May 6th Reflections

The response so far is puzzling.

I don’t follow what phoog is saying at all. Alito’s argument is that abortion was a crime and therefore obviously not a right deeply rooted in the nation’s history and tradition. Winkler’s argument is that abortion was generally legal under certain circumstances and so still plausibly a right deeply rooted in the nation’s history and tradition. I agree that Winkler claims that the legality of abortion is evident from Alito’s own citations; this might be relevant to our view of Alito’s integrity or ability, but seems irrelevant to the central point that abortion was generally legal (under certain circumstances) and therefore (at least possibly) a right deeply rooted in the nation’s history and tradition.

Likewise, while I agree with the formal distinction between the two questions (“Was it a right deeply rooted” and “Was it legal to 16 weeks”), the two questions are so closely interwoven in the argument that it seems rather pedantic to distinguish them while answering neither.

Dale asks what historical research I have done to conclude that “it’s pretty obvious.” Rather than go that route let me withdraw that claim, as I really made it just to clarify the question.

I don’t follow Dale’s argument that abortion was common. If people have sex more often than they have children, this could be because they use contraceptives or have sex in some other way calculated to avoid pregnancy, they have sex while already pregnant (or with someone already pregnant), or they have sex while incapable of conceiving for some other medical reason. Miscarriage may have been common. But of course, even failing all of these alternatives, people still have sex more often than they have children because not every instance of sexual intercourse leads to a pregnancy even under favorable circumstances.

According to a website called Statistica, the US fertility rate was a bit over 7 in 1800, the earliest year they report; and the US life expectancy was 40 in 1860, the earliest year they report. Given that fertility rate was falling (so higher in the past) and life expectancy was rising (so lower in the past), it seems plausible that lots of women were pregnant through a huge part of their adult lives.

And the fact of laws against abortion does not prove that abortion is common; there are laws against the assassination of the president, but assassinations are rare.

But then Dale says that given “that abortion was common, evidence is needed to overturn that presumption.” Dale also says that “evidence that abortion was illegal is not evidence that it wasn’t common.” This is another turn that I cannot follow. It was Dale that raised the question of commonness, while Alito, Winkler and I were all discussing whether abortion was legal. What relationship exists between the idea that behavior is common and the idea that it is a right deeply rooted in the nation’s history and tradition? If we did know that, say, picking pockets was a common phenomenon at some time and place, how would that bear on the constitutionality of a statute forbidding it? Dale says that speeding is common despite the law against it; is that law constitutional?

But now I’ve asked lots of questions, and I really meant to ask this one:

Is the right to an abortion "deeply rooted in this Nation's history and tradition?"

Answer 1

The paragraphs you cite do not make the claim that “abortion was deeply rooted”

They raise the issue that the evidence that Alito is relying on to say it wasn’t doesn’t actually say that it wasn’t.

Now, I, and I suspect you, haven’t seen the evidence so we cannot conclude if “nearly all” show that pre-quickening abortions were not criminalised. Were we to do so, we could read the laws and see if this is correct.

What is known of 19th century abortion practices

Notwithstanding, abortion was relatively commonplace prior to reliable contraception.

We know that because we know how human biology and sexual desire work and that means that people have sex far more often than they have children. We also know it was happening because 28 of the 37 states had laws against it - you don’t make laws to prevent things that are not happening. For example, there are no laws on aviation or computer hacking dating from the time of the fourteenth amendment.

Given that our knowledge is that abortion was common, evidence is needed to overturn that presumption. However, evidence that abortion was illegal is not evidence that it wasn’t common. We have laws against speeding and yet, anecdotally, we know speeding happens and is relatively common and relatively rarely detected.

Knowing what happened in the distant past is difficult and relies on historical research from documents because all the people that were alive then are now dead. It is particularly difficult to know what was happening if the activity was criminal - for obvious reasons people don’t tend to document their criminal activity unless they are idiots.

Measuring actual rates of crime is difficult even today. Some crimes, like murder and armed bank robbery are obvious and almost all instances are known. Some like embezzlement and domestic violence are massively under reported so official statistics on reported crime are inherently wrong. Crimes where neither the “perpetrator” nor the “victim” have any incentive to report and/or where society (including in some cases law enforcement) is accepting of the crime, like recreational drug supply and abortion, are even harder to pin down.

The most likely situation on abortion in the late 19th century was:

• it happened
• it was criminal in some places and in some circumstances
• it was socially unacceptable to talk about it
• neither the mother nor the abortionist was going to mention it
• it probably happened with the support of at least one of the mother’s parents
• society probably “looked the other way” most of the time
• they usually only came to the official notice of the authorities when something went medically wrong.

Answer 2

The critical flaw in Alito's argument

The draft opinion has two appendices, comprising the last 31 pages, which enumerates (purportedly) all abortion laws in place at the time of the 14th amendment's adoption (or close to it for states not yet added). This easily corroborates the "28 out of 37" claim mentioned in your quote, and indeed most of the 9 not included are split: quickening (which means the mother can feel the foetus move) is required for one particular kind of offense ("destroying", usually) while it is not required for another related offense (inducing miscarriage, usually).

This seems to be the basis upon which Alito rests his conclusion that an abortion right was not rooted in history. But this rests upon a major logical fault. By examining only the laws in effect at the time of the amendment's adoption, he is not establishing a lack of history to the right, but only the current trend on the issue. Indeed, the vast majority of the laws were enacted within 20 years of the 14th amendment's adoption in 1868, and none of them are older than 1825. A few decades does not a history make. So there was 60-100 or more years of history under the US constitution preceding this 20-40 year interval; and far more history if we stretch back to the Articles of Confederation and the colonies. This makes the claim that these laws show the right was "not rooted" in history facile and specious. As any legal scholar should be able to tell you, rights are encoded in things like constitutions specifically because "current trends" could at any time run against them. The laws right at the time are never a measure of what historically protected rights were, they are only a measure of current trends. A trend which could be running contrary to the historical protections.

Of course, it remains possible that his argument is simply bad, but the conclusion is, by pure chance, accurate. Supposing we agree to ignore entirely his argument based on trends, and ask what there is for an argument based on the actual 100+ years of history the US (both under the constitution we now recognize, but also going back to the days of the Articles of Confederation and perhaps even the colony days). Is it based in the history of the nation, then?

According to Roe: yes, it is

Detractors of Roe have a tendency to overlook that it was, in fact, a painstakingly detailed argument based on legal theory and historical facts (see section VI for the beginning of the analysis). It goes to great lengths to carefully detail the history of abortion (and going back much further than even the colonial days of the US, even). The fact of the matter is that the list of laws Alito enumerates all being enacted from 1848 onward is, in actual fact, a cherry picking that reflects nothing but a recent trend at the time. As Justice Blackmun writes in the opinion:

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

The history prior to that is in accordance with the professor's claim: for the first 80+ years of history under the Constitution, and much more before that, abortion was simply not criminalized, by and large, before quickening.

Answer 3

Is there the possibility of constructing/discovering a right which is not already "deeply rooted in this Nation's history and tradition?"

According to the Constitution, the answer is a very specific "Yes", and for obvious reasons, e.g. the present opinion of the very entity whose job it is to prevent such nonsensical and disingenuous arguments from taking root.

The ninth amendment has as its purpose the immediate evisceration of any attempt to use the "not already enumerated here" argument to derail the recognition of additional rights. And presumably to make clear that rights do not stem from the operation of text occurring in the Constitution, rather they exist because the people exist, and have innate rights, only some of which are listed at present, whereas Government has no inherent rights, and must always obtain them from and with the consent of the people who have them, and the Constitution merely recognizes that these rights exist, in order to prevent an overreaching Government from claiming some non-existent right to infringe.

At least, that's my interpretation. Justice Alito seems inexplicably unaware of the ninth amendment, but it remains "deeply rooted in this Nation's history and tradition" nonetheless.