Justin Dyer: Fictional Abortion History





Justin Dyer teaches political science at the University of Missouri. He is the author, most recently, of Slavery, Abortion, and the Politics of Constitutional Meaning (forthcoming from Cambridge University Press).

Forty years after the Supreme Court’s landmark decision in Roe v. Wade, prominent historians and lawyers continue to rely on a narrative history that is based on two demonstrably false premises: (1) abortion was a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children. In the 1960s and 1970s, lawyers trying to build a case against century-old state abortion statutes trumpeted these two claims, all the while knowing they were false.
 
The point of these historical claims, as Ramesh Ponnuru has noted, was to portray “anti-abortion laws as an aberration from an American tradition” and “Roe as the restoration of that tradition.” But in reality abortion never amounted to anything approaching a protected liberty in the common law (even in situations where abortion was not considered an indictable offense), and the primary rationale given by those who advocated strict state abortion laws in the 19th century was unequivocally the protection of the lives of the unborn. Even so, old myths die hard, and many commentators continue to repeat or repackage these two claims.
 
In their book Roe v. Wade: The Abortion Rights Controversy in Historical Perspective (2010), N. E. H. Hull and Peter Charles Hoffer offer a succinct summary of what has become orthodox abortion history. In the early American republic, abortion “was one of the many choices that women made on the reproductive continuum from conception to birth,” the authors claim, but in the mid-19th century the “criminalization of abortion fit the overall gendering of law, in which male lawgivers asserted that women must be protected against their own weakness and immorality in having unwanted children and then seeking the assistance of abortionists.” In her award-winning book Ourselves Unborn (2011), historian Sara Dubow similarly concludes that “the debate about abortion [both in the 19th century and today] is less about the life and rights of the fetus than it is about women’s role in society.”
 
The scholarly pedigree for these claims can be traced back to Cyril Means, the New York Law School professor and counsel for the National Association for the Repeal of Abortion Laws (NARAL), who took the lead in drafting the new abortion history in the 1960s...


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