Phony Abortion History Returns to the Supreme Court

A discussion of the history of abortion law occupied several minutes of the oral argument before the Supreme Court last Wednesday. Much of what was said was false or misleading.

Julie Rikelman, the lawyer for the clinic challenging Mississippi’s ban on abortion after 15 weeks, gave voice to that misinformation under searching questioning from Justice Samuel Alito. But she did not come up with it herself. A fake and sometimes fraudulent version of history has been a staple of abortion advocacy since the 1960s.

Justice Harry Blackmun’s opinion in Roe v. Wade claimed that abortion early in pregnancy was indisputably a common-law liberty at the time of the Founding, that it may have been a liberty throughout pregnancy, and that its eventual prohibition did not reflect a belief that it unjustly kills a human being. Rikelman made a version of the same argument: “There was a tradition under the common law for centuries of women being able to end their pregnancies,” and states later “discard[ed] the common law . . . because of a discriminatory view that a woman’s proper role was as a wife and mother.” When Justice Samuel Alito asked her whether it can be “said that the right to abortion is deeply rooted in the history and traditions of the American people,” she therefore answered yes.

Blackmun based his claims largely on one researcher, Cyril Means Jr., whose work has been thoroughly discredited. Many writers have worked to uncover the truth of the matter from layers of error and fraud that have accumulated from Means’s time to the present. (I summarized the story in NR’s special issue on Roe.) That truth: We have records of prosecutions for abortion going back at least to the 13th century in England and the 17th century in what were then the American colonies. The campaign to prohibit abortion in the 19th century was motivated above all by the belief, bolstered by recent scientific advances, that a living human organism exists from his or her conception onward.