In his draft opinion that is poised to overturn Roe v. Wade, Justice Samuel Alito contends that a powerful legal heritage drove him to his result. “We begin with the common law,” Alito announces.
Pro-choice readers have leaped to object. Why begin with the common law? Who cares what long-dead English pontificators in wigs thought about a right that might or might not now exist in the United States Constitution?
Moreover, the four judge-writers Alito relies on—Henry de Bracton, Edward Coke, Matthew Hale, and William Blackstone—deserve no deference, say Alito’s critics. They note that Hale approved of executing women labeled witches and the rape of wives by husbands. As for de Bracton, he claimed women were inferior to men and told his readers that the way to learn if a woman is lying about being pregnant is to “examine her by feeling her breasts and abdomen” and “lock her in a castle at her own cost,” then keep groping her every day. Alito’s other two lions of the common law didn’t say anything that blatant, but their worldview can be called foreign, conservative, and out of touch. Saturday Night Live made a similar point: We should have moved on from the common law by now.
There’s no need to fight on that ground, though, as Alito is actually wrong about the common law. Alito’s mischaracterizations of common law do more than roll the American constitutional clock back to an unenlightened past. They move in defiance of what the common law itself, in its ostensibly bad heyday, maintained about abortion.
True, common law judges never wrote a decision affirming a right to terminate pregnancy in the mode of Roe v. Wade. While they lived, though, no one could even conceive of such a right, as we understand it today.
In Alito’s draft, the common law era starts in the medieval age that brought forth Henry de Bracton’s groping and castle-locking recommendation and ends with the reception of William Blackstone in the United States, which concluded in the early 19th century. Switching from pregnant to nonpregnant by choice did not become possible until a little more than a hundred years ago, well after the period covered by Alito.
Imagine asking the quartet of Englishmen who serve as Alito’s sources to opine on the common law about erection pills, or an option to check the organ donor box on a driver’s license, or a data plan that includes roaming. It’s anachronistic, in other words, to read writings about “destroying the Foetus in the Womb”—as one of Alito’s 18th century texts put it—as applicable to abortion in the sense that the court has been understanding the issue since 1973: an election to terminate one’s pregnancy and then go on with one’s life.
Some things just didn’t exist in past centuries. Tests to determine pregnancy, for example, are less than a hundred years old. Abortion as we understand it today as an option is barely older than that.
Unwanted pregnancy certainly did exist for millennia, and so too did interventions that people hoped would change this condition. There just wasn’t any power until very recent times to achieve what we take for granted today: a chosen transition away from being pregnant without first either giving birth or risking likely death.
Alito cites an impressively researched 2006 book called Dispelling the Myths of Abortion History by Joseph Dellapenna. It deserves a wider audience of readers. Especially Alito, who appears not to have read it all. Dellapenna has many myths to dispel.
One of those myths, a notion that I once half-believed myself, is that women of bygone days knew how to end pregnancy safely and effectively. Wise crones would stir up semi-secret concoctions and then give the abortifacient they’d cooked to damsels in pregnant distress.
Sounds powerful. Smells fragrant. It’s nonsense, says Dellapenna. I returned to his analysis when I wrote a book about the common law covering abortion a couple of years ago, updating it with newer findings. His bottom line—that abortion as we understand it today wasn’t available in the founding era—remains correct.
Women doubtless tried to end pregnancies by the herbal potion method. They still do sometimes. The problem with botanical recipes is, if they’re strong enough to kill an embryo, they’re potentially strong enough to kill a woman, and if they’re safe enough to spare the life of a pregnant woman, they allow what’s inside her to live and grow.
If you think some bygone blend of plants ever delivered reliable termination, do tell. Investigators have looked. In 1994, the science journalist Gina Kolata examined claims that particular flora worked as abortifacients. Kolata found no reason to think any of them succeeded.
Beyond the sip-and-hope abortion technique, destined either to poison the sipper or accomplish nothing, there were two other ways to dispatch an embryo or fetus, Dispelling the Myths continues. You could injure the pregnant woman externally—throw her down a staircase, for example, or collide into her with enough force to cause death. The other way was to go after the embryo or fetus internally, prying a sharp object into the abdomen or cervix.
That’s all. There are no other approaches. Still basically true today. Modern surgical abortion ends pregnancy with an internal invasion. Abortion via drugs follows the ingestion approach of yore, but this time using substances that really do the job.
Innovations of the late 19th century made abortion in the modern sense possible. In a 2015 paper, I listed scientific “knowledge of female reproductive anatomy, anesthetics, antibiotics, analgesics, clean running water, and dissemination of written data” as the developments that had to arrive for abortion as we know it today to become possible. We have room for improvement on all these fronts, but abortion is safe enough for a patient now.
In Alito’s common law era, any maneuver to terminate pregnancy could never be both safe and effective. Collide into a pregnant woman hard enough to kill her fetus and you’d injure her severely at the same time. Not safe. Insert a sharp object into her vagina before germ theory and anesthesia: also not safe. The only possibly safe abortion method attempted back then, the homebrewed tisane, was not effective.
This point about impossibility refutes a favorite anti-abortion gotcha, the (arguable) opposition to abortion of early women’s rights activists Susan B. Anthony and Elizabeth Cady Stanton: Abortion must be bad for women when even feminist heroes didn’t like it! But if you want to shelter human beings from painful, preventable death and don’t want to waste women’s time—and wasted time is the herbs-and-flowers best-case scenario—then you too would have been wary of abortion before the 20th century. The common law back then punished acts that terminated pregnancy from awareness that these acts always threatened at least the health, and usually the life, of a pregnant person.
Alito tries his own gotcha when he says we know the common law opposed abortion because rape-defending 17th century jurist Matthew Hale “wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her.’ ”
Here Alito, quoting an old hypothetical about murder, brushes off the only death in the story—that of the pregnant woman. Neither his retelling nor the Hale original mentions a dead embryo or fetus. Instead, a physician gave to a trusting person a substance that he, as an expert, knew would put her life in jeopardy. The poisoning that resulted was fatal. To her. That’s the killing of a woman, done “unlawfully.” Hale, though rightly remembered as a misogynist, knew a crime when he saw one.
Alito’s misread of this common law source is consistent with the rest of his draft opinion. As its challengers have noticed, pregnant women aren’t people there. Human beings in the Alito draft are shooters, strikers, potion prescribers, judges, legislators, common law scholars, fetuses, and babies.
The common law took a very different view of pregnant women. For starters, judges in Alito’s common law era refrained from punishing women for trying to end their own pregnancies. That punitive move came from legislation enacted later. Dellapenna’s book found only one possible pre–19th century judicially decreed penalty for self-termination, and the record of the case is unclear. The defendant went unpunished because a general pardon, issued in 1601, applied to her.
Then there’s “quickening,” which the common law used to mark the start of pregnancy and which makes many appearances in Alito’s draft. Quickening occurs when a woman feels movement inside her body, an experience that occurs after the first trimester. It unites a mother-to-be with the child she anticipates bringing into the world. At the same time, quickening belongs uniquely to her.
Alito says he has almost no clue why his common law sources talked about quickening as if it mattered. After a couple of baffled paragraphs, he shrugs. “The original ground for the quickening rule is of little importance for present purposes,” Alito continues, “because the rule was abandoned in the 19th century.” That’s rich coming from a man who just devoted pages to abortion law covering many centuries before the 19th. Much of what Alito earnestly reports as important was abandoned longer ago.
Maybe the common law focused on quickening because it had to, Alito muses: Scientific pregnancy tests didn’t exist. But there were of course other ways of figuring things out. The breast-gropers that Henry de Bracton encouraged his 13th century colleagues to use as verifiers of pregnancy, what his treatise called “discreet women,” could have testified about someone else’s late period or morning sickness. If the common law wanted to confirm pregnancy and didn’t want to trust women, its men would eventually notice what would later be called a baby bump and could declare the event on.
Yet the common law said the indicator of pregnancy that counts is a feeling that every lawyer, judge, juror, legal scholar, and member of Parliament in the era that Alito reviews could understand only from a description relayed by someone else. Each man who wrote about quickening as a legal criterion had to extend his consciousness. Quickening in the common law connected not only a woman with life inside her but male lawmakers with material reality.
Quickening was the most humane, compassionate, and empathetic possible understanding of pregnancy. It put a singular individual front and center. Not a judge, not a lawmaker, not theologians who debate when the soul enters the body.
Not the embryo or fetus either. Quickening regarded the baby-to-be as an object that started to matter when one person felt that it mattered. The feelings and values of a pregnant woman had the force of law. This woman, says the common law, is a person with power over human life. Her own life included. Imagine that, Justice Alito.