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Commentary: Justice Alito’s startling statement

Rich Egger

In June, when the Supreme Court overturned the 1973 Roe v Wade decision in Dobbs v Jackson Women’s Health, they ruled the right to abortion under Roe had been wrongly decided. At the heart of Dobbs is the issue of “originalism” or the belief that contemporary Constitutional issues should be reasoned as they would have been interpreted when the Constitution was written. In explanation, Justice Samuel Alito stated that not only was abortion not mentioned in the Constitution, it was “not deeply rooted in the Nation’s history and tradition,” therefore it was not Constitutionally protected.

Justice Alito’s statement is a startling mischaracterization of a very common American practice. From colonial America through the mid 19th century, abortion was widespread, stigma-free, and managed by midwives. Women sought abortifacients, or herbal remedies, from midwives to expel an “obstruction,” or a “blockage.” It was so common that newspapers advertised midwives who had remedies to cure obstructed menses. Treatment occurred prior to quickening, or the point at which movement of the fetus could be detected, or at about 18-22 weeks.

For reference, the CDC reports that currently about 93 percent of abortions are performed at less than 14 weeks.

The earliest anti-abortion laws prohibited abortion only in late stages of gestation. For example, 10 states between 1821 and 1848 enacted laws that made it illegal to give an abortifacient after quickening. These laws restricted abortion to approximately 20 weeks of pregnancy; they did not prohibit abortion.

In 1847, the American Medical Association was founded. As the AMA evolved from a social club to the arbiter of all medical services, they set strategies for professionalization including: educational standards, licensure, and elimination of competitive services. To eliminate competition, they lobbied for laws that restricted: dentists, chiropractors, osteopaths, and midwives. Only midwifery did not survive.

As the AMA developed specialties, obstetricians, originally called man-midwives, took over midwifery services, including abortion. Most anti-abortion laws in the late 19th century prohibited midwives from using herbal remedies or instruments to perform abortions. Justice Alito’s statement that laws to prohibit abortion emerged in the late 19th century, at the time the 14th amendment was ratified, fails to account for the intent and context of these laws, or the fact that abortion prior to quickening was exempted.

In the early 20th century, laws to regulate abortion prevailed. Abortifacients were available only by prescription, providers had to be licensed, and therapeutic medical abortion decisions were designated to doctors. Some states criminalized abortion, but the majority of states regulated it.

As medical procedures that were once performed at home, including childbirth and abortion, shifted to hospitals in the 1930s, a more regulated medical environment normalized. By 1950, hospital review boards determined eligibility for abortion. Some had monthly quotas, others used a checklist of criteria, and others allowed abortion for those who could pay.

It was in the 1960s, simultaneous to the modern women’s movement, that abortion laws seriously tightened. At that time, and historically, women had almost no representation in medical fields, or legislatures that regulated access to abortion. The 1973 Roe v Wade decision shifted the power for abortion decisions back to women and their care providers, where it had resided historically.

Justice Alito’s reasoning of originalism distorts the history of abortion in the U.S. His statement that “abortion” was not mentioned in the Constitution is startling. Of course abortion was not mentioned. Nothing pertaining specifically to women was included or implied in the Constitution. It took until passage of the 19th amendment in 1920 to include full citizenship for women. Justice Alito’s further statement that abortion is “not deeply rooted in the Nation’s history and tradition” illustrates an old complaint about whose history is recorded or counted. Abortion was deeply rooted in the nation’s history and traditions, but Justice Alito was, apparently, not aware of this history.

Polly Radosh s a Professor Emeritus of Sociology and a Retired Chair of Women’s Studies at Western Illinois University, and she is a current member of the WIU Board of Trustees.

The opinions expressed are not necessarily those of WIU or Tri States Public Radio.

Diverse viewpoints are welcomed and encouraged.