Grossman and Friedman on The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence

ICYMI: Joanna L. Grossman, Southern Methodist University School of Law, and Lawrence M. Friedman, Stanford University School of Law, have published The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence at 46 Women's Rts. L. Rep. 1 (2024).

On June 24, 2022, a solid conservative majority of justices on the United States Supreme Court decided that the time had come to overrule Roe v. Wade, and it did so in Dobbs v. Jackson Women’s Health Organization. The opinion in Roe, according to the majority in Dobbs, “was egregiously wrong from the start.” And the time had come to get rid of it once and for all. There was no constitutional right to an abortion, according to the majority. In the Court’s words, “the authority to regulate abortion must be returned to the people and their elected representatives.” Dobbs is and will remain controversial. Abortion is clearly a major issue, politically speaking, with strong passions on both sides. Roe v. Wade itself was also controversial from the very beginning. Abortion had been a contested matter before that decision; and Roe itself was never accepted by a large minority of Americans, particularly in the South. Both sides in the abortion controversy have appealed to the historical record. The Dobbs majority opinion relies on the criminalization of abortion in the second half of the nineteenth century to conclude that abortion cannot be recognized as a fundamental right under the Fourteenth Amendment. In this article, we want to re-examine that history. It would be naïve to think that historical considerations made a crucial difference in the Dobbs decision (despite what the opinion claims); or that it will be decisive in a related dispute over the Comstock Act and the legality of abortion pills. But historical rhetoric has been a prominent tool in the abortion dispute; and this makes it worthwhile to pick apart the historical arguments. Yet this is not only, or primarily, a study in legal history. It is a study of the shape and meaning of the abortion controversy over time. It is a study of how the social context molded that controversy, in the past, and in the present. The goal is to broaden our understanding, first, of the abortion issue, and beyond that, how politics, religion, ideology, and other factors bear on the question of unborn life. The aim is objectivity—if that is possible. We will first consider the particular ways in which history was deemed relevant to the majority’s ruling in Dobbs and note the historical claims that are contested or even obviously wrong. Then, we will get to the heart of the article, in which we examine the history of abortion law and policy in social context. This analysis lays bare the absurdity of grounding constitutional rights in “history,” when laws and policies are plucked from their social context and dropped into a world that would have been unrecognizable to those who lived at the relevant time in history. Abortion is, as before, a controversial issue. History, as we said, cannot convince either side that their view is right and the other view wrong. What it can do is shine the light of scholarship on the history of this controversy, with as much rigor as the subject allows. When we do this, the historical arguments in the Dobbs opinion seem more and more irrelevant. Those arguments, we have argued, were based on a profound misreading of the social context in which the abortion issue in Victorian times played out. Today, we live in a very different world. The terms of the debate in the nineteenth century are not the terms of today. They are in fact, as we tried to show in this article, essentially obsolete.

Download the article from SSRN at the link.

Conference on Abortion in American History, January 17, 2025, at the Huntington Library @TheHuntington

Forthcoming Conference: Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries Before Roe v. Wade. Here's a description of the conference, to be held January 17, 2025, at the Huntington Library.

This conference brings together leading scholars to explore the multifaceted history of abortion in 19th- and 20th-century America. Building on the Longo Collection in Reproductive Biology, this conference will explore the underlying history that can deepen public understanding of the controversial politics of abortion law.

More information available here.

Tsai and Ziegler on Abortion Politics and the Rise of Movement Jurists @robertltsai @BU_Law @maryrziegler @UCDavisLaw

Robert L. Tsai, Boston University School of Law, and Mary Ziegler, University of California, Davis, School of Law, are publishing Abortion Politics and the Rise of Movement Jurists in volume 57 of the UC Davis Law Review. Here is the abstract.

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena. In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists. Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty. We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

Download the article from SSRN at the link.

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.

Laguardia on Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Debate @montclairstateu

Francesca Laguardia, Montclair State University, has published Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric at 9 Journal of Law and the Biosciences 1 (January/June 2022).

The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Download the article from SSRN at the link.

Bernick and Lens on Abortion, Original Public Meaning, and the Ambiguities of Pregnancy @evanbernick @jillwieberlens @NIU_Law @UARKLaw

Evan D. Bernick, Northern Illinois University College of Law, and Jill Wieber Lens, University of Arkansas School of Law, have published Abortion, Original Public Meaning, and the Ambiguities of Pregnancy as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment. This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion. Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

Download the article from SSRN at the link.

Seigel on Memory Games: Dobbs's Originalism As Anti-Democratic Living Constitutionalism--and Some Pathways for Resistance @YaleLawSch @TexasLRev

Reva Siegal, Yale University Law School, is publishing Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance in the Texas Law Review. Here is the abstract.

This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways. To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

Download the article from SSRN at the link.

Afflerbach on on Intellectuals, Abortion, and Tess Slesinger's Modernism @ArsScripta @UNG_News

Ian Afflerbach, Assistant Professor of American Literature, University of North Georgia, has published Liberal Use of Possession: Intellectuals, Abortion, and Tess Slesinger's Modernism, 85 ELH 801 (2018).

Via @ArsScripta

Plagiarism on "Criminal Minds"

Plagiarism Today discusses the issue of plagiarism as it appears in pop culture on "The Gathering," an episode of the series Criminal Minds. Read the post here. 

Bringing the Gosnell Story To the Screen

Independent filmmaker Phelim McAleer (FrackNation) is interested in bringing the story of Dr. Kermit Gosnell to the screen. Dr. Gosnell was convicted of first-degree murder and involuntary manslaughter in 2013 and sentenced to life in prison without the possibility of parole for killing a baby born alive after a failed abortion, and for the death of an adult patient, and to 30 to 60 years in prison for violation of the RICO act. Mr. McAleer and his partner Ann McElhinney plan to use crowd sourced funding to launch the film. The filmmakers say this film will be scripted, unlike their previous projects.

Telling Abortion Stories

Michael Stokes Paulsen, University of St. Thomas School of Law, is publishing Kermit Gosnell and Uncle Tom's Cabin in the St. Thomas Journal of Law & Public Policy. Here is the abstract.

Stories persuade and illustrate in a way that pure logic does not. What Kermit Gosnell - the Butcher of Philadelphia - did is, in principle, no different from what any other abortionist does. This repulsive true crime story persuades and it is important for that reason. But the lesson we should draw from it – the logic of the parable, if you will – ought to be one about abortion and abortionists generally. The Kermit Gosnell story has the potential to function, for the anti-abortion movement, in much the same way that Harriet Beecher Stowe’s serialized novel Uncle Tom’s Cabin, functioned for the anti-slavery movement more than 150 years ago. It persuades the mind by first moving the heart and wrenching the soul. Kermit Gosnell is today’s Simon Legree. But Gosnell is no composite fictional character. He is the real-life face and voice of Abortion.

Download the article from SSRN at the link. 

A Conference On Reproductive Rights at Boalt Hall

The Center on Reproductive Rights and Justice (Boalt Hall) will sponsor a symposium on October 4, 2013: Speech, Symbols, and Substantial Obstacles: The Doing and "Undue"ing of Abortion Law Since Casey. More here.

Women's History, Law, Politics, and Abortion Rhetoric

Tracy A. Thomas, University of Akron School of Law, has published Misappropriating Women's History in the Law and Politics of Abortion at 36 Seattle University Law Review 1 (2012). Here is the abstract.

Over the past twenty years, prolife advocates have sought to control the political and legal narrative of abortion by misappropriating women’s history. They claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” Conservatives, led by the lobbying group Feminists for Life, have used historical feminist icons like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul, to support their anti-abortion advocacy. Federal anti-abortion legislation has been named after these feminist heroines, amicus briefs to the U.S. Supreme Court proffer evidence that these women were outspokenly against abortion, and political forums for college students popularize the notion that feminists historically opposed abortion. The need to create a history of anti-abortion feminists seems important today because abortion has come to be equated with women’s rights. The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality.
This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. This paper tests the veracity of the claims of a feminist history against abortion by focusing on Elizabeth Cady Stanton, “the brilliant chief philosopher and leader” of the nineteenth-century women’s rights movement. Stanton has quite literally been the poster child for the historical campaign against abortion, appearing on posters, commemorative coffee mugs and federal legislation. This analysis offers a detailed account of Stanton’s views related to abortion based on original historical research into the archives of Stanton’s papers. Like other works of legal history, it is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context.
The evidence shows that Stanton did not talk about abortion per se. She did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women. Instead Stanton reframed this debate as one of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law. Stanton thus seems an unlikely spokesperson for the modern anti-abortion movement committed to opposite ends.

Download the article from SSRN at the link.