The Viability of Roe, Part 3: How Roe Re-wrote History

579240-closeup-picture-of-a-row-of-old-history-booksThe court begins its discussion of the merits of the original abortion case, Roe by looking at the history of abortion. While the court notes that it is universally accepted that abortion after quickening (the first movements felt in utero at about 16-18 weeks) was a crime at common law throughout history, they seem unable to decide whether this matters, and rely heavily on two articles by Cyril Means Jr. who was general counsel for NARAL[1].  Means research had a decidedly pro-abortion slant and has been criticized by many.  In fact in 2006 Joseph Dellapenna a professor at Villanova law school wrote a scathing 1200 page book refuting the “history” used in the Roe decision[2].  Historical research that was available in 1973 and has been undertaken since that time has repudiated virtually all of the court’s historical claims.[3]

For instance, apart from remarking that the Persian Empire banned abortion, Justice Blackmun’s survey of the ancient world was limited to Greece and Rome. Yet, numerous other sources indicate that abortion was condemned in the twelfth century B.C. by Assyrians, Hittites, early Hindus, Buddhists of India, and Indian law; and there is some evidence that the ancient Egyptians took a similar attitude.[4] This information was included in the works of Eugene Quay, who Blackmun cited, but failed to incorporate into his opinion.[5]

Despite the availability of other historical sources, Justice Blackmun left a gap of more than a thousand years in his survey of history, jumping from his discussion of ancient attitudes straight to Anglo-American common-law; during this thousand year period, history tells us that the majority of the world opposed abortion.[6]

The Court also claimed that prior to quickening abortion was not indictable offense under law again relying on means his article. However, English common law clearly prohibited abortion and the American colonies adopted this common law.

Before the debate about abortion began in earnest in the 1960s, it was accepted by lawyers, both ‘prolife‘ and ‘pro-choice,‘ that abortion had been prohibited by Anglo-American criminal law for 700 years and that the law’s main, if not sole, purpose was protection of the fetus.  In the 1950s Glanville Williams, the eminent Cambridge University law professor and vigorous pro-choice activist, explained the rationale of the anti-abortion legislation permeating the U.S. and England. The fetus, he wrote, ‘is a human life to be protected by the criminal law from the moment when the ovum is fertilized. ‘[7]

Another part of this “historical survey” involved the legislative history of the Texas abortion law and others like it. This legislative history was later the foundation for the court’s decision regarding personhood of the unborn child. Up until the 1960s, all but a few of the 50 states prohibited abortion except when it was necessary to save the life of the mother[8]. These abortion laws were enforced, updated and strengthened during the nineteenth century as medical understanding progressed[9].  In the oral arguments, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman.  This could not be further from the truth.  In fact, Justice Blackmun acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on criminal abortion., in which the AMA called abortion an” unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10]

Clearly, the historical research on which Justice Blackmun relied was at best biased and incomplete, and at worst was a complete revisionist history concocted with the sole purpose of justifying the abortion decision.


[1] Means’ two history articles were funded by the pro-abortion advocacy group, Association for the Study of Part II: Abortion (ASA).  See JOSEPH DELLAPENNA, “Dispelling the Myths of Abortion History” (2006) note 40 at 14, 143-44, 1004.  Justice Blackmun cited Means‘ two articles a total of seven times, and no other source on the history of abortion more than once.  See Roe, 410 U.S. at 136-52, 158 n.54.

[2] JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006

[3] See JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006); Robert Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807 (1973); Robert Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 CAL. L. REV. 1250 (1975); James Witherspoon, Reexamining Roe: Nineteenth Century Abortion Statutes and the Fourteenth Amendment, 17 ST. MARY‘S L.J. 29 (1985); Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 ST. LOUIS U. PUB. L. REV. 15, 107-31 (1993) (This article, among other things, compiles 64 cases from 40 states demonstrating that the purpose of the nineteenth century state abortion prohibitions was to protect the life of the unborn child); Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U.L. REV. 563 (1987).

[4] see a Dennis J. Horan and Thomas J Balch, Roe v. Wade: No justification in History, Law, or Logic, in Abortion and the Constitution: Reversing Roe v. Wade Through the Court,  note 24 at 62.

[5] Quay, Justifiable Abortion – Medical and Legal foundations, (pt. 2) ,  49 Geo. L. J. 395 (1961), cited in Roe v. Wade, 410 U.S. 130 n.9.

[6] See Dennis J. Horan & Thomas J. Balch, Roe v. Wade: No Justification in History, Law, or Logic, in ABORTION AND THE CONSTITUTION, supra note 44 at 67.

[7] John Keown, Abortion Distortion: A Review of Dispelling the Myths of Abortion History, 35 J.L. MED. & ETHICS 325 (2007).

[8] Linton, “Enforcement of State Abortion Statutes after Roe,” at 159–161.

[9] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade, at. 360. Encounter Books. Kindle Edition.

[10] Roe at 141-2

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