“As a matter of constitutional text and history, Alito’s draft surely is unworthy of a majority vote.” — Aviam Soifer, dean of the Boston College Law School
“This 17th-18th century understanding (of abortion) would mean upholding Roe.” — Holly Brewer, University of Maryland history professor
When I came to the University of Idaho in 1972, I understood that I would have to start publishing in reputable journals in order to receive tenure and promotion. In order to get published, I would have to satisfy the reviewers (unknown to me and I unknown to them) that I had addressed their concerns and objections.
Justice Samuel Alito’s leaked draft gave legal experts and historians a rare opportunity to serve as reviewers of his work. The general consensus is that Alito’s brief is deeply flawed and, therefore, not acceptable for publication or circulation, let alone a foundation for reproductive law.
I would like to focus on his claim that the anti-abortion position is “deeply rooted” in our legal history. Before I address this issue, I have a few remarks about the traditional Catholic view, also deeply rooted, on abortion.
Six of the nine justices of the Supreme Court are Catholics, and I’ve always wondered why they are not more honest about the views of the most esteemed Catholic theologians. They did not believe — for reasons that hold even now — that the fetus is a person from conception on.
Two great Catholic theologians
St. Augustine believed that abortion is not homicide because fetus “lacks sensation.” St. Thomas Aquinas argued that the fetus was not a person until sometime late in pregnancy. Jesuit philosopher Joseph F. Donceel affirms that “many modern philosophers and theologians have returned to St. Thomas’ view.”
The U.S. Conference of Catholic Bishops has declared that Augustine’s views are “of little value” because he was ignorant of fetal development. However, Aquinas’ three stages of fetal development track well with Roe v. Wade’s trimester framework, and the fetal brain is incapable of feeling pain or having significant mental activity until about 24 weeks. See fetal brain slides at bit.ly/3HcYdRg.
‘Formed’ and ‘quick’ fetuses
For about 2,000 years, the Catholic Church followed a distinction between an “unformed” and “formed” fetus. This is based on the Greek translation of Ex. 21:22-23, and the church generally held that the abortion of an “unformed” fetus was not murder. That view was not changed until a papal decree of 1869 and not codified in Canon Law until 1917.
Augustine defined the “formed” fetus as a “live soul,” and this corresponds well with the idea of “quickening” in English common law, which it also called “ensoulment.” Medical science actually confirms this distinction between a fetus and an embryo. OB-GYN Dr. Jennifer Kerns states that a fetus is “well formed, as opposed to an embryo, which doesn’t look like a baby.” Even then, one could easily mistake a chimp fetus as a human being or a pig fetus at 21 days. See bit.ly/3uaZgNh.
The most revered judicial authority in the 18th century was Sir William Blackstone who maintained that life “begins in contemplation of law as soon as the fetus is able to stir in the mother’s womb.” Thomas Jefferson once wrote that “Blackstone is to us what the Koran is to the Muslims.”
Significantly, under English common law, an abortion to save the life of the mother could be performed at any time during pregnancy. One is reminded of ancient Jewish authorities who, in the case of a threat to the life of the mother, ruled that the fetus is guilty as a “pursuer” under the negative commandment which demands that one may not “take pity on the life of a pursuer.”
Problems with quickening and viability
Personally, I don’t support the “quickening” criterion, primarily because it is even more variable than the viability rule in Roe v. Wade. I believe that the best cut-off point is the ability to feel pain, which, as the fetal slides above prove, does not happen until about 24 weeks. See my article at bit.ly/3lklRCq.
Evidently referring to a 17th century judge, Alito states that quickening occurs between 16 and 18 weeks. The British National Health Service, however, contends that it, depending on the pregnant woman, may happen as late as 24 weeks. In contrast, medical technologies may soon set back viability back to 20 weeks or even earlier.
Mississippi’s law and quickening
One commentator surmised that Alito chose the earlier weeks for quickening because it coincided with the Mississippi abortion law under review, which set 15 weeks as the cut-off point for legal termination of a pregnancy.
We now know that Chief Justice John Roberts attempted to get his colleagues to uphold the Mississippi law, substitute 15 weeks for viability, and let a corrected Roe v. Wade stand. As many have argued: the chief justice has now lost control of his court.
I, for one, would have accepted this as long as the current red state obstacles preventing early, safe abortions were repealed. Many European countries have a 12-week cut-off point, but women are not harassed by demeaning and intrusive rules. For example, British hospitals inform pregnant women that “the decision for an abortion is yours alone. No one, not even parents or partners, need be informed.”
The founders were not silent on abortion
Alito states that the Constitution is silent with regard to a right to an abortion. However, in 1790, James Wilson, author of the Preamble of the Constitution and Supreme Court justice, gave a lecture on Blackstone’s views on abortion. In it, he agreed that “life begins when the infant is first able to stir in the womb.” With that law in place, Wilson, presumably, saw no need for constitutional protection.
As professor Laura Briggs at University of Massachusetts Amherst states: “The Constitution’s silence on abortion spoke loudly for its original authors. They believed that no law or court should criminalize abortion in the early months of pregnancy.”
Alito is an “originalist,” a legal theory that requires that judges adhere to the views current at the time of founding of the nation. Alito mentions Blackstone briefly, but instead he alleges that there was wide-spread banning of abortion a century later, thus, conveniently, abandoning the views of the founders.
Alito’s coverup unveiled
Alito covers up the fact that the quickening criterion was recognized by courts all over the nation until 1909. In 1845, the Massachusetts Supreme Judicial Court found that, “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.”
In 1849, New Jersey’s Supreme Court found that “to cause or procure abortion before the child is quick, is not a criminal offence at common law.” In 1857, the Alabama Supreme Court ruled that abortion was “not punishable by law” unless the mother was “quick with child.” In 1909, attorneys in a case before Oregon’s Supreme Court argued that “abortion is not a crime” unless it results in the death of “a quick fetus.”
Doctors versus midwives
By the late 19th century, however, 16 states had criminalized abortion at any stage of pregnancy, but it is important to note what the real reasons were. Struggling for credibility and business, the newly formed American Medical Association, wanted to displace midwives as the primary providers of reproductive care.
There is no indication that doctors at that time professed any arguments to replace the quickening criterion. Furthermore, it is clear that they were not able to provide any better care than highly skilled midwives.
A feminist historian explains: “In their zest to use instruments and other maneuvers to speed up the birth process, physicians often caused much damage to women’s reproductive organs.” Until 1935, “the substitution of doctors for midwives and of hospital delivery for home delivery did little in themselves to reduce mortality rates for mothers.” See bit.ly/3lfu4rr.
Early ‘replacement’ theory
A more sinister factor played a role in the banning of abortion in the 19th century. There was a widespread fear that immigrants, Catholics in particular, would soon outbreed the Anglo-Saxon population. Nicola Beisel and Tamara Kay explain that “too many native-born white women were ending their pregnancies, opening the door for the country to be overrun by fertile foreigners.”
Professor Laura Briggs states: “The criminalization of abortion in the 1850s, then, was about controlling women and anti-immigrant fervor.” This was an early form of the “replacement” theory, which is supported by many on the right, most notably Fox News’ Tucker Carlson.
The most extreme form of this theory, reported on National Public Radio (5/12/22), is found among “prominent white supremacists who have called for abortion to be banned only for white women but for it to be accessible and even free for women of color.” The premise of Margaret Atwood’s “Handmaid’s Tale” is even more credible these days.
Misinformation about fetal development
Responding to the emotional distress that women experienced when subjected to images of fetal development and ultrasounds of the fetus, Alito wrote, coldly, that it was “part of the responsibility of moral choice.” These procedures, he argues, are necessary because women should not be left with “an uninformed choice.” In truth, these women are victims of unscrupulous, misinformed anti-abortion red state politicians.
Heartbeat bills that set six weeks as the limit, for example, falsely represent electrical activity as an actual heartbeat. Heart valves, which produce the sound of a normal heartbeat, do not exist at six weeks. According to OB-GYN Dr. Nisha Verma, the “sound that you ‘hear’ is actually manufactured by the ultrasound machine.”
In rejecting the viability criterion, Alito contends that there is no rational cut-off point except conception. This position confuses personal identity and genetic identity. There is a possibility of twinning up to 16 weeks, and twins would have the same genes but they would be different persons. Personhood is a moral and legal designation not a biological one.
Forced pregnancy and slavery
Michelle Goodwin, professor of law at the University of California, Irvine, has argued that there is another obvious place in the Constitution where abortion rights can be found. She writes: “Ending the forced sexual and reproductive servitude of Black women was a critical part of the passage of the 13th and 14th Amendments.”
Goodwin continues: “Mandated, forced or compulsory pregnancy contravenes enumerated rights in the Constitution, namely the 13th Amendment’s prohibition against involuntary servitude and protection of bodily autonomy, as well as the 14th Amendment’s defense of privacy and freedom.” Women who conceive in the Deep South and have no means to obtain an abortion in a blue state must not be subjected to forced, unwanted pregnancy.
The Supreme Court’s decision is not only a threat to women’s rights and other fundamental rights, it will also be — with its sloppy reasoning and factual inaccuracies — a great embarrassment to the history of the Supreme Court.
Nick Gier of Moscow taught philosophy and religion for 31 years at the University of Idaho. He was coordinator of religious studies from 1980 to 2003. Read his articles on abortion at bit.ly/3ExwNUs and bit.ly/3lklRCq. Email him at ngier006∂gmail.com for sources and discussion.