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U.S. Supreme Court Justice Alito's abortion history lesson in dispute
May 6, 2022
6:17 AM EDT
Last Updated 6 hours ago
U.S. Supreme Court Justice Alito's abortion history lesson in dispute
By Lawrence Hurley
{snip}
The Roe ruling found that the right to abortion arises from the 14th Amendment's protection of due process rights, which the Supreme Court has found safeguards a person's right to privacy. ... To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation. ... Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists. ... "We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.
A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening." ... Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.
University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening. ... "There are huge risks trying to answer this 2022 question based on what happened in 1868," Tang said.
{snip}
6:17 AM EDT
Last Updated 6 hours ago
U.S. Supreme Court Justice Alito's abortion history lesson in dispute
By Lawrence Hurley
{snip}
The Roe ruling found that the right to abortion arises from the 14th Amendment's protection of due process rights, which the Supreme Court has found safeguards a person's right to privacy. ... To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation. ... Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists. ... "We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.
A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening." ... Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.
University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening. ... "There are huge risks trying to answer this 2022 question based on what happened in 1868," Tang said.
{snip}