Scholars show how Roe v. Wade decision aligns with early America's beliefs on abortion

Justice Samuel Alito went for the knockout. His draft opinion, leaked to the press, overturns five decades of precedent protecting reproductive rights for women. It amounts to reaching back for all you’ve got and swinging mightily.

The blow may yet land when the Supreme Court issues its final ruling. One aspect deserving attention is how the draft opinion misses the history, something made clear in the helpful friend of the court brief submitted by the American Historical Association and the Organization of American Historians, representing thousands of scholars.

The Organization of American Historians highlights its “interest — as a steward of history, not as an advocate of a particular legal standard — to ensure that the court is presented with an accurate portrayal of American history and traditions.”

Too bad the brief informs so little of the Alito draft.

The justice insists practically nothing in the country’s past supports Roe v. Wade, the landmark 1973 court decision establishing the right to abortion. He even makes multiple references to Lord Matthew Hale, an English jurist in the 17th century who argued women must forfeit control of their bodies to suit the liberties and interests of men.

This interpretation leads the justice to claim that common law offers no place for abortion. He argues the unenumerated rights, addressed in the Ninth Amendment, retained by the people if not specified in the Constitution, must be “rooted in this nation’s history and tradition.”

What does the justice overlook?

The historians detail how at the country’s founding, English common law, upon which Americans relied, “did not regulate abortion in early pregnancy.” It “did not even recognize abortion as occurring at that stage.”

Why? “Because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”

In that way, the woman alone made the call.

If this framework seems familiar, that isn’t surprising. It goes to the holding in Roe v. Wade. Justice Harry Blackmun, the ruling’s author, examined this historical ground, concluding that at the adoption of the Constitution, the opportunity to choose abortion was present “at least with respect to the early stage of pregnancy and very possibly without such a limitation.”

Obviously, things are different today than at the founding, in terms of medical procedures, safety and access. Yet the historians explain that in many states, the framework endured deep into the 1800s, women with a choice, especially early in pregnancy. More, states with restrictions often set lesser penalties for early abortions.

In their brief, the historians trace the developing opposition to abortion. The effort gains momentum, starting in the late 1850s through the efforts of Dr. Horatio Storer, a gynecologist who eventually enlists the support of the newly formed American Medical Association. Telling is what mostly drives their concern — notably, the incidents of vulnerable women dying from abortions.

The historians note “consternation over immigrant Catholics out-reproducing native white Protestants, and resentment of married women apparently shunning their proper roles as mothers by choosing abortion.” In Ohio, a legislative committee warned about married women “living in a state of legalized prostitution” and “leaving our broad and fertile prairies to be settled only by the children of aliens.”

The fetus, particularly early in pregnancy, appears a lesser priority.

No question, in subsequent decades, the thinking of Storer and the AMA brought increasing restrictions on abortions — and ultimately, the lawsuit in Roe challenging a Texas law. Reading the brief by the historians, it is hard to miss: The Roe v. Wade decision represents the necessary compromise, the right to abortion with practically no restrictions early in pregnancy and then tightening curbs after “quickening,” or what Blackmun called “viability.”

In crafting Roe, as many have recounted, the justices struggled with the rationale. Would they rely primarily, as the federal district court did, on the Ninth Amendment? Would they embrace an inherent right to privacy? Or the 14th Amendment and the right to make defining decisions such as whom to marry or whether to raise a family?

They did agree on one thing: Women deserved access to abortion. They could see what was happening around them. Women were demanding equality, for instance, in education, job opportunities, pay and politics. An unplanned pregnancy could jeopardize a career. Woman wanted control over their bodies and lives.

Abortions are a reality. Better to ensure they are legal and safe.

The surfacing of the Alito draft has been another reminder about the divisiveness of the abortion question. Yet there is a middle ground, one the Supreme Court located and reinforced, and now appears ready to abandon, even as historians make the link to our history and traditions.

Douglas was the Beacon Journal editorial page editor from 1999 to 2019. He can be reached at

This article originally appeared on Akron Beacon Journal: Outrage over abortion not present in America's early years