loading . . . Grossman and Friedman on History, Tradition and Abortion The second of today’s HAT posts is Joanna L. Grossman, SMU-Dedman
School of Law, and Lawrence M. Friedman, Stanford Law School, The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence,
which appears in the Women’s Rights Law Reporter:On June 24,
2022, a solid conservative majority of justices on the United States
Supreme Court decided that the time had come to overrule Roe v. Wade,
and it did so in Dobbs v. Jackson Women’s Health Organization. The
opinion in Roe, according to the majority in Dobbs, “was egregiously
wrong from the start.” And the time had come to get rid of it once and
for all. There was no constitutional right to an abortion, according to
the majority. In the Court’s words, “the authority to regulate abortion
must be returned to the people and their elected representatives.”
Dobbs
is and will remain controversial. Abortion is clearly a major issue,
politically speaking, with strong passions on both sides. Roe v. Wade
itself was also controversial from the very beginning. Abortion had been
a contested matter before that decision; and Roe itself was never
accepted by a large minority of Americans, particularly in the South.
Both sides in the abortion controversy have appealed to the historical
record. The Dobbs majority opinion relies on the criminalization of
abortion in the second half of the nineteenth century to conclude that
abortion cannot be recognized as a fundamental right under the
Fourteenth Amendment. In this article, we want to re-examine that
history.
It would be naïve to think that historical
considerations made a crucial difference in the Dobbs decision (despite
what the opinion claims); or that it will be decisive in a related
dispute over the Comstock Act and the legality of abortion pills. But
historical rhetoric has been a prominent tool in the abortion dispute;
and this makes it worthwhile to pick apart the historical arguments. Yet
this is not only, or primarily, a study in legal history. It is a study
of the shape and meaning of the abortion controversy over time. It is a
study of how the social context molded that controversy, in the past,
and in the present. The goal is to broaden our understanding, first, of
the abortion issue, and beyond that, how politics, religion, ideology,
and other factors bear on the question of unborn life.
The aim
is objectivity—if that is possible. We will first consider the
particular ways in which history was deemed relevant to the majority’s
ruling in Dobbs and note the historical claims that are contested or
even obviously wrong. Then, we will get to the heart of the article, in
which we examine the history of abortion law and policy in social
context. This analysis lays bare the absurdity of grounding
constitutional rights in “history,” when laws and policies are plucked
from their social context and dropped into a world that would have been
unrecognizable to those who lived at the relevant time in history.
Abortion
is, as before, a controversial issue. History, as we said, cannot
convince either side that their view is right and the other view wrong.
What it can do is shine the light of scholarship on the history of this
controversy, with as much rigor as the subject allows. When we do this,
the historical arguments in the Dobbs opinion seem more and more
irrelevant. Those arguments, we have argued, were based on a profound
misreading of the social context in which the abortion issue in
Victorian times played out. Today, we live in a very different world.
The terms of the debate in the nineteenth century are not the terms of
today. They are in fact, as we tried to show in this article,
essentially obsolete.
--Dan Ernst http://dlvr.it/TLSvy4
