Supreme Court’s selective reading of US history ignored 19th-century women’s support for ‘voluntary motherhood’

The history of abortion in the U.S. guided some of Supreme Court Justice Samuel Alito’s arguments in the Dobbs v. Jackson Women’s Health Organization decision. Alito argued that abortion has never been a “deeply rooted” constitutional right in the United States.

But as a historian of medicine, law and women’s rights, I think Alito’s read of abortion history is not only incomplete, it is also inaccurate.

Alito argued in the opinion that abortion has always been a serious crime, but there were no laws about abortion at all in Colonial America. Beginning in the 19th century, most states barred it only after “quickening,” when a pregnant woman can first feel the fetus move, typically around the fourth to sixth month of pregnancy.

Abortion is indeed deeply rooted in the American experience and law. American women have always tried to personally determine the size of their families. Enslaved Black women used contraception and abortion as specific strategies of resistance against their physical and reproductive bondage.

The very passage of the 13th and 14th amendments, which ended slavery and guaranteed citizenship for all, is evidence that the Constitution actually does protect bodily autonomy. The 14th Amendment’s due process and equal protection clauses have long been the legal basis for gender equality cases. If, as the Supreme Court’s ruling suggests, the right to abortion is not constitutionally protected via the 14th Amendment, it opens up the possibility that other settled law concerning gender and racial equality also has the potential to be reversed.

Instead of examining abortion through the lens of past cases of gender law, however, Alito instead refers to the opinions of 17th-century male legal theorists, who believed in witches and the right of husbands to rape their wives. He also cites as evidence the passage of 19th-century state abortion laws by all-male legislatures, which criminalized abortion and birth control. The Comstock Postal Act of 1873 also made possessing or selling all sexual information and contraceptive items a federal crime.

Meanwhile, Alito’s opinion does not discuss the women’s rights movement in the 1800s or women’s ordinary, daily perspectives on abortion at the time. In this landmark decision, the court has skipped one of the biggest parts of U.S. history on abortion, creating a glaring gap in an understanding of how abortions and abortion law in the country worked in the past.