In 1908, a local scandal gripped the attention of some residents of Portland, Oregon. Authorities arrested a prominent “electric healer” named J.D. Dunn on allegations that he had sexually abused a 14-year-old patient during an appointment to treat her for goiter.
At trial, Dunn’s entire defense hung on the credibility of his star witness, a certain Mrs. Kruse. Kruse testified that she was physically present in Dunn’s office when he’d allegedly abused the minor patient—and that she saw no such thing.
Prosecutors responded with a tactic familiar to anyone who’s seen Law & Order: They tried to discredit Kruse on cross-examination. They got her to admit that she, too, was a patient of Dunn’s, but they couldn’t get her to describe the nature of her treatment. So they called another witness who testified that Dunn had actually performed an abortion on Kruse when she was three months pregnant.
What happened next reveals a striking lesson about the legal status of abortion in early America. This lesson casts severe doubt on the historical assertions that underpin Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, an opinion that would eliminate the constitutional right to terminate a pregnancy.
[Read: Abortion Used to Be No Big Deal. A Few Angry Men Made It One.]
In Alito’s world, the accusation that Dunn had performed an abortion should have been a jaw-dropping moment in open court. At the time, Oregon had a law declaring any abortion performed on any “woman pregnant with a child” to be punishable as manslaughter. According to Alito, such language would have “made abortion a crime at all stages in pregnancy.” Dunn, in other words, had just been accused of an offense even more severe than the one for which he was on trial.
But in the real world, Oregon prosecutors never even considered prosecuting Dunn for performing the abortion. Quite the opposite. Appearing before the Oregon Supreme Court, attorneys for the state insisted that “abortion is not a crime” under Oregon law unless it results in the death “of a quick fetus.” Dunn had accordingly broken no law because he performed Kruse’s abortion prior to quickening—the point at which a fetus makes its first noticeable movement, as early as fifteen or sixteen weeks in pregnancy.
This is devastating for Alito’s argument. Here’s why.
Recall that the leaked opinion overturns Roe v. Wade on the basis of a particular legal test: The Constitution, it says, can only protect the right to abortion if it is “deeply rooted in our nation’s history and tradition.” Alito recognizes that this test is actually terrible for him as of the founding because every state then in the union respected the “distinction between pre- and post-quickening abortion” and treated the former as no crime at all.
His response is to assert that this tradition changed by the time the 14th Amendment was adopted in 1868. By then, Alito claims, “three quarters of the States made abortion a crime at all stages of pregnancy.” So crucial is this argument to his opinion that he includes a 23-page appendix—longer than many Supreme Court majority opinions—quoting every state law he believes criminalized abortion throughout pregnancy.
Oregon is one of the states on his list.
But as the story of J.D. Dunn proves, that cannot be correct. Not unless one thinks Oregon prosecutors lied to their own Supreme Court when they affirmed the state’s long-standing position that pre-quickening abortions remained perfectly legal under the state’s abortion law, just as had been true throughout America at the founding.
With Alito’s mistreatment of Oregon revealed, the rest of his opinion crumbles. Many of the other state laws concerning abortion that Alito lists in his appendix used similar language—and were also understood to continue the founding-era tradition of permitting pre-quickening abortion (I describe those laws and how they were understood historically in this research paper).
After combing through the historical record, my best sense is that just 16 of the 37 states actually banned pre-quickening abortions at the time of the 14th Amendment’s adoption. What is more, even these 16 states should be heavily discounted, given how they were driven by an all-male medical association’s peddling of openly misogynistic stereotypes, such as one anti-abortion advocate’s declaration that pregnant women should not be “allowed to judge for [themselves] in this matter” because they are too “prone to … derangement.”
Correcting the historical record matters. Noted conservative and libertarian originalists like professors Michael McConnell and Randy Barnett have argued that the 14th Amendment’s original meaning protects unenumerated rights that a substantial majority of states respected for a lengthy period of history. That describes the legal status of pre-quickening abortion throughout our nation’s early years: It was permitted by every state at the founding and still by a majority of states when the 14th Amendment was ratified. Contrary to Alito’s opinion, in other words, history and tradition actually support a constitutional right to abortion for much of early pregnancy.
None of this should be a surprise to Alito, though. All of the sources I’ve drawn on to describe Dunn’s case and Oregon’s official interpretation of its abortion ban are publicly available and easy to find through a basic search of any legal database.
That Alito and his clerks drafted a 98-page opinion overruling a right belonging to millions of Americans without ever performing such a search—or worse, having done it only to suppress the unfavorable results—is eye-opening. The only question left is whether the court’s more institutionalist-minded conservatives will take off their blinders.