Back to the Future of Abortion Law: Roe's Rejection of America's History and Traditions

Article excerpt

Abstract: In Roe v. Wade much of Justice Blackmun's judgment was devoted to the history of abortion in Anglo-American law. He concluded that a constitutional right to abortion was consistent with that history. In Webster v. Reproductive Health Services, 281 American historians signed an amicus brief which claimed that Roe was consistent with the nation's history and traditions. This article respectfully questions Justice Blackmun's conclusion and the historians' claim.

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   Constitutional litigation, perhaps more than any other kind of
   legal determination, should be based on fact not fiction, truth
   not untruths, reality not myth. For it makes a unique contribution
   to shaping us as the people, the community, we constitute, and the
   persons, the individuals, we are. (1)

In Washington v. Glucksberg the Supreme Court was faced with the question whether legislation prohibiting physician-assisted suicide was unconstitutional. Delivering the judgment of the Court Chief Justice Rehnquist observed: "We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices." (2) In light of the fact that for over 700 years the Anglo-American common law tradition had punished or otherwise disapproved of suicide and assisted suicide (3) the Court went on to reject the claim that the Constitution contains a fight to assisted suicide.

In determining whether the Constitution contains a right to abortion the nation's history and traditions concerning abortion are no less relevant. It is not surprising, therefore, that in Roe v. Wade, (4) which established such a right, much of Justice Blackmun's leading opinion for the Court was devoted to the history of abortion in Anglo-American criminal law. Blackmun concluded that a right to abortion was consistent with that history. In Webster v. Reproductive Health Services, (5) a case which was widely viewed as providing an opportunity for the Court to reconsider its holding in Roe, 281 American historians filed an amicus curiae Brief urging that Roe v. Wade was "consistent with the most noble and enduring understanding of our history and traditions." (6) The Brief, which was eventually to attract the signatures of over 400 historians, was drafted by Sylvia Law, a professor of law at New York University (7) It proved influential in both academic and non-academic circles. It was, for example, relied upon by Ronald Dworkin in his argument rejecting constitutional personhood for the unborn. (8)

At the heart of the Brief lay three claims:

* "At the time the Federal Constitution was adopted, abortion was known and not illegal." (9)

* "Nineteenth-century abortion restrictions sought to promote objectives that are today plainly either inapplicable or constitutionally impermissible." (10)

* "The moral value attached to the fetus became a central issue in American culture and law only in the late twentieth century, when traditional justifications for restricting access to abortion became culturally anachronistic or constitutionally impermissible." (11)

This article questions each of these claims. It concludes that Roe was a radical break with the law's historical protection of the unborn child and thereby with its adherence to the principle of the inviolability of human life. (12) It consists of three parts. The first part presents a short history of Anglo-American abortion law. Part two, the main body of the article, illustrates the misunderstanding of that history by Justice Blackmun in Roe and challenges the above three claims made by the Historians' Brief. The third part raises questions about the propriety of so-called "advocacy scholarship."

Anglo-American Law Against Abortion: A Brief History

As early as the mid-thirteenth century the common law punished abortion after fetal formation as homicide. Fetal formation, the point at which the fetus assumed a recognizably human shape and was believed to be ensouled, was thought to occur some 40 days after conception. …