National Review, Oct 23, 1995 by Ramesh Ponnuru (NR's national reporter)
Abortion activism has corrupted constitutional interpretation. Can it corrupt the profession of history as well? A case study of the academic betrayal of truth.

CASES before the Supreme Court concerning abortion have been known to generate controversy. So when the Justices agreed to hear Webster v. Reproductive Health Services (1989), they had to expect a flood of amicus curiae briefs from the National Organization for Women, Catholics United for Life, and the like. One brief, however, came from a less predictable quarter and attracted wide attention. It was submitted by three lawyers on behalf of 281 professional historians (later signatures brought the total to over 400). The brief's authors understood its novelty and significance: "Never before," the brief began, "have so many professional historians sought to address this Honorable Court in this way."

The historians claimed that Americans had recognized the right to choose abortion at the time of the Republic's founding. Further, they argued, nineteenth-century legislators restricted that right for four reasons that either no longer apply or are no longer constitutionally permissible: to protect women from unsafe abortions, to help physicians to constitute themselves as a profession, to enforce gender roles, and to prevent Catholic immigrants from increasing their proportion of the population. A concern for the alleged life of the fetus "became a central issue in American culture only in the late twentieth century." Since restrictions on abortion impose severe costs on women and since the historic rationales for those restrictions are discredited or obsolete, the historians concluded, the Court should reaffirm the constitutional right to abortion whose existence it had announced in Roe v. Wade (1973).

This historical account has important legal implications. Justice Blackmun's majority opinion in Roe drew support from the assertions that it was "doubtful" that the common law had ever prohibited abortion and that nineteenth-century statutes did not reflect a belief in the personhood of fetuses. The brief's account also obviously has implications outside the courthouse. If it were accurate, anti-abortion laws could be seen as an aberration from an American tradition, Roe as the restoration of that tradition. And the anti-abortion movement would be tainted by a history of racism and sexism.

But the brief's key claims are false. The law always restricted abortion, and the campaign against abortion did seek to protect what it viewed as fetal life. Moreover, the published work of signatories to the brief disproves its historical arguments. The very sources on which the brief relies contradict its thesis. And its shoddiness is too pervasive and tendentious for mere incompetence to suffice to explain it.

The brief's history of abortion begins with the following paragraph:
As the Court demonstrated in Roe v. Wade, abortion was not illegal at common law. Through the nineteenth century American common-law decisions uniformly reaffirmed that women committed no offense in seeking abortions. Both common law and popular culture drew distinctions depending upon whether the fetus was "quick," i.e. whether the woman perceived signs of independent life. There was some dispute whether a common-law misdemeanor occurred when a third party destroyed a fetus, after quickening, without the woman's consent. But early recognition of this particular crime against pregnant women did not diminish the liberty of the woman herself to end a pregnancy in its early stages. [Emphasis in original.]

Almost every statement in this paragraph is false or misleading.

The historians' first source for their contention that "abortion was not illegal at common law," Justice Blackmun's opinion in Roe, based its more tentative version of this claim on a 1971 article by Cyril C. Means Jr. Means acknowledged that many authorities on the common law held abortion to be illegal. He argued, however, that two fourteenth-century cases held abortion at any stage of pregnancy to be neither a felony nor even a serious misdemeanor; that Bracton and Fleta had misunderstood the common law; that Coke had deliberately misrepresented the common law; and that Coke's "masterpiece of perversion" misled later writers.

Research since 1971 has thoroughly discredited Means's article. Full records of the cases at issue show that only procedural and evidentiary problems prevented the imposition of penalties, thus vindicating Bracton, Fleta, and Coke from the charges of scholarly error and misconduct. Indictments or appeals of felony for abortions dating as far back as 1200 demonstrate that neither a woman's consent nor absence of quickening rendered abortion legal. Nor were women who sought abortion immune from prosecution, in England or the Colonies.

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*The picture above taken form here.