“On a huge hill … truth stands, and hee that will
reach her, about must, and about must goe.”
John Donne, The Hill of Truth
In 1973, the Court decided in Roe v. Wade that the Fourteenth Amendment gives women the reproductive right to terminate pregnancy. In 1992, in Casey v. Planned Parenthood, the Court abandoned Roe’s trimester standard but upheld the “essential holding” of Roe, which gives a woman the right to an abortion up to viability, meaning the point at which a fetus can survive outside the uterus. That has been America’s “constitutional truth” for nearly fifty years, up to June 24, 2022.
That is when the Court decided Dobbs v. Jackson Women’s Health Organization, holding that the Roe and Casey decisions were not just mistaken but “egregiously wrong.” What was “true” for two generations of American women is now false.
Justice Alito says repeatedly that the word “abortion” isn’t in the Constitution. A constitutional right of abortion can therefore exist as an element of Fourteenth Amendment “liberty” only if such a right is “deeply rooted in this nation’s history and tradition.”
This is “originalism.” Constitutional truth now resides somewhere in the distant past, in this case 1868 when the Fourteenth Amendment was ratified. The Court looks back to see what was understood and how things were at that time.
Originalism isn’t new, but it has never commanded a majority until the appointments of Justices Gorsuch, Kavanaugh, and Barrett. For generations, the Court has treated the Constitution as a living document, meaning that it considers the changes our country has undergone since its founding.
The concept of constitutional truth that evolves over time is now a relic of the past. That makes overruling previous decisions a lot easier. Earlier courts were unenlightened; they didn’t know how to interpret the Constitution. This court pays lip service to the importance of following precedent, known as stare decisis, but in Dobbs and other recent decisions it says “Yes, but … “ and proceeds to tell us that there’s a new constitutional sheriff in town.
Justice Scalia preached the originalism doctrine with single-minded ferocity. Justices Thomas and Alito now carry his ideology, and the Trump appointees make five. Maybe Chief Justice Roberts makes it six. Thus, the existence of a right such as abortion, not explicitly set out in the constitution, now depends on whether it is “deeply rooted” in history ( a history, the dissent points out, made entirely by men).
Justice Alito’s recitation of abortion history goes as far back as the 13th century, devotes considerable space to the 17th century, and then continues up to modern times. As he tells it, the history of abortion is almost entirely negative. It was illegal in common law England, he says, and by 1868 it was a crime in 28 out of the 37 states. Over the following decades, the other states fell into line.
Of the many “amicus” (friend of the court) briefs filed in the Dobbs case, one was submitted by the American Historical Association and the Organization of American Historians. This month, a few days after the Dobb decision, these organizations issued a written statement that the Dobbs opinion does not live up to high standards of historical scholarship.
Their amicus brief gave the Court a careful account of abortion history in this country up to 1868 which, as it turns out, did not criminalize abortion across the board. In common law England, in colonial times, and continuing the 19th century, the critical stage of pregnancy was “quickening,” the time at which a pregnant woman feels fetal movement. Before that point, the law did not regard a fetus as separate from the woman.
The Mississippi law at issue in the Dobbs case limited abortion to fifteen weeks, well before viability and more closely approximating the time of quickening. In his concurring opinion in Dobbs, Chief Justice Roberts urged the court to uphold that 15-week standard and not overrule Roe v. Wade, at least this time around. His conservative colleagues weren’t interested, either ignoring or refusing to accept what qualified historians were telling them.
There’s another problem, nowhere mentioned in Alito’s opinion. It is that the acceleration of abortion restrictions in the 1860s was driven by a Massachusetts physician named Horatio Storer. Enlisting help from the newly-formed American Medical Association, he launched a successful anti-abortion campaign based on the fear that “they,” meaning “foreigners,” would otherwise gain the population upper hand over the “ideal” America, meaning a society of white Protestants. He didn’t hint at this “they will not replace us” viewpoint; he wrote it and said it out loud.
If the history of abortion isn’t exactly as Justice Alito would have us believe, then why Dobbs ? Here’s how the dissenting justices, Breyer, Sotomayor, and Kagan answer that question: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them. And now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
Donne’s poem “For Whom the Bell Tolls,” written in 1624, ends with the words, “Therefore, send not to know For whom the bell tolls, It tolls for thee.
Words for our time.