WIT is glad to welcome this guest post from Dr. Hana Stuckstorff. Hana recently received her PhD in History from University of Toronto, with a previously-completed Masters of Divinity from Duke (2016). In her spare time, she enjoys reading, writing, cooking, and singing and dancing pretty much all the time.
A few weeks ago, US Supreme Court, in Dobbs v. Jackson Women’s Health Organization, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) in arguing that the US Constitution does not guarantee a right to abortion access, and permitting most state restrictions on abortion to go ahead. The majority opinion, written by Associate Justice Samuel Alito, relies heavily on legal history in reaching this conclusion. I am not a lawyer or legal expert, but I am a professional historian, one who has taught several US history courses and completed one of her comprehensive exams in modern US history. As an historian, I’m trained to identify strong and weak arguments about the past and to consider what might strengthen ones that need improving. Normally, I don’t find “I have thoughts” a sufficient excuse for posting them on the Internet, but my interest and expertise in history mean that I have something substantive to contribute. Many thanks to Women in Theology for giving me a place to share it!
What follows is a pretty in-the-weeds analysis of Alito’s use of historical evidence in the Dobbs majority opinion. I’ve tried to critique it in good faith, even if (as I show below) the opinion itself doesn’t always evince such faith. Abortion is complicated legally and theologically, and so is the past. At the very least, we should ask that our jurisprudence (and theology) about abortion respects and makes room for this complexity. Unfortunately for us, this decision does not do that.
Why does history matter at all for this decision?
As Dobbs notes the Constitution does not explicitly enumerate a right to an abortion. To decide whether the Constitution, namely the Fourteenth Amendment (ratified in 1868), might be said to protect such a right, the majority opinion in Dobbs then relies on something called the Glucksberg test (1997). According to this test, for the Constitution to protect an unenumerated right, the right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” (Introduction). Later in the opinion, Alito changes this framing somewhat to argue that a right must satisfy this first criterion before it can be considered under the second (II.D.1). This rhetorical move allows the opinion to mostly sidestep the “ordered liberty” question and leaves us with an opinion centred largely on history.
So, how well does it hold up?
Historical Analysis
In short: not well. To my eye, as a piece of historical analysis Dobbs is weak. Its reasoning is circular and lacks contextualization, and its chronology is poor. That’s not to say it doesn’t make some defensible points, but its historical arguments are not among them.
The opinion frequently cites historical texts as if their meaning is self-evident, which is rarely the case in history, particularly when dealing with material that is centuries old. For instance, in surveying the common law tradition, the opinion cites the claim of a thirteenth-century (!) treatise that “if a person has ‘struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide’” (II.B.2.a). To use the technical term, what the heck does “foetus be already formed and animated” mean in this context? Does it relate to later notions of “quickening,” i.e. the point at which fetal movement could be detected and after which much US early republican law prohibited abortions? The opinion addresses none of this and simply moves onto the next example, which is, frankly, not much better. In that instance, Alito writes how “Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was ‘murder’ if the ‘childe be born alive’ and a ‘great misprision’ if the ‘childe dieth in her body.’” Alito clarifies that “misprision” here means a felony, without explaining at all what “childe dieth in her body” could mean. Is this a reference to miscarriage? Again, there’s no explanation about what physiological phenomena is referred to here, which pretty much tracks with the decision’s overall disinterest in the experiences of pregnant people.
When Alito does attempt to expand on the quotations he selects, it’s not convincing. To support his assertion that common law’s distinction between abortions pre- and post-quickening was murky at best, Alito writes “Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be ‘with quick child’—only that she be ‘with child’” (II.B.2.a). But what’s to say, in Blackstone’s late eighteenth-century context, that “child” wouldn’t have meant “quick child”? Naomi Wolf learned the hard way that the plain-text reading of a phrase isn’t always the historically accurate one (in her case, “death recorded” in Victorian judicial records regarding sodomy actually meant a death sentence had been deferred, and “sodomy” itself in the period referred to child abuse as well as sex between men). Closer to my own research, Roman Inquisition sentences might prescribe carcere perpetuo (life imprisonment) for convicted heretics, but this usually meant five years’ incarceration. Instead of explaining or clarifying historically murky terminology, Alito offers the plain-text readings as if they undeniably support his claim that “a right to abortion is not deeply rooted in the Nation’s history and traditions,” when in fact they might not. Elsewhere, the opinion brushes over evidence from the historical record that complicates this central claim, such as the state laws liberalizing abortion access passed in the decades before Roe (II.B.1; see NYT annotation; II.B.2.c). As is, Dobbs’ use of historical records reads like cherry-picking and proof-texting, attempts to mine the historical record for support for an already decided-upon position rather than allowing the historical record to illuminate that position.
Some of the historical conclusions are also so obvious as to be laughable, even when the opinion seems to cast them as smoking guns. In critiquing the arguments for Jackson Women’s Health, Alito notes: “Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century” (II.B.3). To which I want to say (again, in the technical term of the field): duh. For most of US history, women were not considered legal persons who could possess individual rights of any kind, to abortion or otherwise. Up until 1974, one year after Roe, women didn’t have legally protected access to credit cards, for goodness’ sake. Of course a right to an abortion wasn’t deeply rooted in the country’s history in the 1860s, when the Fourteenth Amendment was ratified. Women weren’t legal persons then. If Alito is suggesting that women simply don’t have rights under the Fourteenth Amendment because those rights didn’t exist at the time of its ratification, then he should just come out and say it. It would at least be more intellectually honest than much of this opinion is.
The opinion also misrepresents Roe’s effects on political discourse in the US. It parrots the view that Roe and Casey “enflamed and deepened division” in the US, but this claim is simply not accurate (Introduction). Around the time of Roe, “abortion was a divisive matter but not a partisan one,” and did not become so until the early 2000s.[1] In Dobbs’ framing, polarization around Roe was the responsibility of the decision itself, and not of generations of citizens and activists who organized and voted around it. For a decision that claims the Court has denied voters their proper role in the democratic process, this opinion’s historical analysis does the very same thing.
Issues with Glucksberg
The historical analysis in Dobbs may not be strong, but in fairness to Alito, Glucksberg’s framing doesn’t necessarily make for good history. It asks a yes-or-no question, which historians generally eschew because it fails to capture the full complexity of the historical record. It also does not identify what constitutes “history and traditions,” which Alito seems to interpret quite narrowly as only law treatises, statutes, and court cases. As Jill Lepore has pointed out, this approach deliberately leaves out the perspectives and contributions of anyone who wasn’t an elected official or magistrate, i.e. women, indigenous peoples, people of colour, etc. It’s a narrow and impoverished view of history, and a narrow and impoverished way of getting at it.
Instead of “Is the right rooted in the nation’s history and traditions?”, an historian might ask a more open-ended question, such as “How have US laws, traditions, customs, and attitudes treated abortion access?” The historian might answer that question with findings from a variety of primary sources from the full breadth of US history that speak to those laws, customs, traditions, and attitudes. A jurist could look at those findings and then answer the yes-or-no question the test poses, and explain why they ascribe more weight to some types of evidence than to others. That, of course, would require that the justices actually cared about history, which I’m not convinced from this opinion they really do.
Moreover, the opinion talks about the Glucksberg test as if the category of “rights” is ahistorical itself. But what it means for something to be a “right,” and what behaviours might be considered “rights,” has changed over time. For instance, most of the rights guaranteed in the Bill of Rights are negative ones, i.e. freedom “from” government. The notion of a right “to do” something, as I understand it, is a more recent development.[2] For instance, I’d be surprised if any common law treatises refer to marriage—between any two people—as a “right.” A common practice, certainly, and one regulated by the state, but not a “right.” It simply hasn’t been considered as such for a very long time. In that vein, I don’t know that a right to even the kind of marriage this court would condone—a heterosexual one—would pass the Glucksberg test.
Of course, the Court could certainly address the changing history of “rights” in its historical analysis, but that would require it to care about history, and I don’t see evidence for that here.
Final thoughts: arguments not offered in good faith
Alito’s arguments about Roe are strongest when he takes the decision on its own terms. At one point, the opinion lays out Roe’s trimester framework for determining the permissibility of state restrictions on abortion access. It then notes that “this scheme resemble[s] the work of a legislature” and argues, essentially, that Roe represented legislating from the bench (III.B.1.b). Because Alito has spent some time even-handedly describing that scheme, this argument is quite defensible. Moreover, the opinion’s critiques of some of Roe’s own historical claims are supported by other historians, although the most recent article cited seems to be from 2006. Its own legal analysis of Roe, however, is sometimes anachronistic.
Alito repeatedly claims that Roe “failed to show that history, precedent, or any other cited source supported its scheme” (III.B.1.b). This sounds as if he is applying the Glucksberg test to Roe. However, that test was handed down by the court in 1997, 24 years after Roe. The post-facto critique is thus less effective than, say, showing that Roe would have failed to pass constitutional muster by the standards of its time. Or the opinion could explain that the Court’s standards for evaluating substantive due process claims under the Fourteenth Amendment have changed since 1973, and in light of those changes Roe no longer stands. As is, the Glucksberg-inflected critique of Roe feels like a cheap shot.
The opinion’s lacklustre approach to history is perhaps best illuminated in section III.B.1.c. In arguing that Roe’s trimester framework was arbitrary, Alito critiques the Roe court for “not explain[ing] why it departed from the normal rule that courts defer to the judgments of legislatures ‘in areas fraught with medical and scientific uncertainties.’ Marshall v. United States, 414 U.S. 417, 427 (1974).” Notice that the case he cites here was decided in 1974, one year after Roe. This error is so glaring one wonders how neither Alito nor any of his clerks caught it. There are more cynical and more generous answers to that particular question, but it remains that errors like this make it hard to take much of the historical analysis seriously.
Bottom line: this opinion doesn’t show interest in historical analysis. History is a tool and a cudgel. It’s a pretext that helps the justices do what they were always going to do. The Glucksberg test itself is fairly disconcerting. Its case of origin concerned assisted suicide, but its ramifications seem to go far beyond that issue. Given that the legal personhood of anyone who wasn’t a white, educated, property-owning man isn’t “deeply rooted in this Nation’s history and traditions,” how does this test serve to do much other than restrict the rights of these groups? Is that, in fact, the entire point of the test, or does it serve any other helpful legal purpose?
But the test also points us to a larger question, one that Americans and Canadians have been wrestling with for some time: what are we to do with the past? Beyond how we think about abortion access, how do we handle a past riddled with all sorts of things, from slavery and residential schools to emancipation and the expansion of the franchise? This is, fundamentally, the question at the heart of debates over everything from reparations to CRT. It’s a question, as Ta-Nehisi Coates has put it, about inheritance, about what we do with things that have been given to us. Answering that question goes far beyond this post, but Dobbs highlights how not approach it. History is complex, and rarely admits easy answers to straightforward yes or no questions. It asks us to understand the past before we judge it, and to understand it from a variety of perspectives. It requires and develops imagination and empathy. It is one of the best correctives I can imagine to today’s polarization. This opinion is sorely lacking in it, and shows why we need it more than ever.
For additional information analysis of Dobbs and additional historical context:
Pantsuit Politics podcast: two lawyer friends from Appalachia discuss the news of the day, with several excellent episodes about abortion. See in particular this conversation after the leak of the Dobbs draft in May.
David French and Sarah Igsur, Advisory Opinions podcast, “The Supreme Court Overturns Roe and Casey”
Jill Lepore, These Truths: A History of the United States (New York: W.W. Norton & Company, 2018), especially Chapter Fifteen, “Battle Lines,” 646-718.
[1] Among the sources cited in the linked piece by Adam Serwer in The Atlantic are: Lilliana Hall Mason, Uncivil Agreement: How Politics Became Our Identity; Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Polarized America: The Dance of and Unequal Riches; and Mary Ziegler, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.
[2] Legal historians, if you have insights and resources into how the field of constitutional law has interpreted “history and traditions,” I welcome them. I’d very much like to learn more.
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