Originalists are misreading the Constitution’s silence on abortion

Alito rains down fury on Roe, claiming in high originalist dudgeon that it found a right to privacy over health-care decisions that was entirely made up, unenumerated by the Constitution. If the Constitution was silent on abortion, he argues, that was because it conferred no right to have one.

But what if the Constitution was silent on abortion because its drafters believed that it — like virtually all medical procedures — should remain unregulated as a matter of law? How, in other words, do we interpret that historical silence?

The law and courts were indeed largely quiet on the subject of abortion when the Constitution was written in 1787. But one of its drafters left a record of what he intended by that silence: A historians’ amicus brief in Dobbs points out that, following the common law, he believed abortion was not the business of courts or lawmakers. The procedure, usually accomplished with herbs, was widely described by 18th-century authorities on English common law as perfectly all right before quickening, or before the pregnant person felt movement in the womb, which can happen as late as 25 weeks.

James Wilson, who wrote the Constitution’s preamble, weighed in on the subject of abortion law in a 1790 lecture. Quoting William Blackstone, a preeminent authority on English common law, Wilson told his audience: “In the contemplation of law, life begins when the infant is first able to stir in the womb.” Abortion, in Wilson’s view, could not be regulated by law before that time.

In the early republic, Blackstone’s interpretation of English common law with respect to abortion was repeatedly affirmed by U.S. courts. For example, 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.”

New Jersey’s Supreme Court found in the 1849 case, State v. Cooper, that “to cause or procure abortion before the child is quick, is not a criminal offence at common law, and has never been made so by statute in New Jersey.” As long as the mother consented to the abortion, it was unregulated and legal. If the pregnant woman did not consent, Chief Justice Henry W. Green said, then the act was illegal, because it was a poisoning or assault on the mother — but not on the fetus, which had no autonomous legal existence.

Green went on to make a distinction between life as a medical matter and as legal matter: “It is not material whether, speaking with physiological accu­racy, life may be said to commence at the moment of quicken­ing, or at the moment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it.” No medical or philosophical concerns could change the fundamental nature of abortion before the pregnant woman felt the fetus move, according to Green. Abortion in early pregnancy was, and always had been, legal.

As with all things about abortion in recent years, there is another side, largely represented by Joseph Dellapenna, a law professor at Villanova University who has written a book about the history of abortion. Alito’s draft relies heavily on him. Dellapenna claims that there was criminalization of abortion in European common law from the 1200s through the 1500s. This hardly seems relevant. These cases involved assaults on pregnant people resulting in stillbirth, which is not the same thing as medical — or even herbal — abortion. There is also no evidence that these cases were known to the U.S. courts, much less the writers of the Constitution.

A handful of colonial U.S. cases are also cited to argue for a legal concern about abortion before quickening, but these involve murder and beating of pregnant women, rape or paternity claims. And there is no evidence that anyone was ever convicted of the death of a fetus in early pregnancy, only that the existence of the fetus or stillborn baby was relevant to the court in cases of crimes against women.

In fact, abortion regulation only become common in the United States after the founding generation passed away, beginning with a few as early as the 1820s, but most after 1850. In 1857, a man named Horatio Storer took it upon himself to insist that abortion should be regulated nationwide, winning the support of the fledgling American Medical Association, which saw it as part of a larger fight about replacing women midwives with male doctors. Storer and other doctors were also alarmed by reports of women who died as a result of unsafe abortions, and he worried about immigrant Catholics out-reproducing Protestants. (Storer had moments when he sounded like Tucker Carlson on the subject of the Great Replacement, the white nationalist belief that white “Anglo Saxons” will be “replaced” by immigrants and people of color.)

In that decade before the Civil War, debates about abortion were also haunted by the shadow of abolition. As legal scholar Pamela Bridgewater has argued, enslavement was at least as much about reproduction as it was about other kinds of labor, especially after the prohibition of further importation of Africans for the purposes of enslavement in 1808, leaving U.S. slavery as an institution reliant on reproduction. Bridgewater also argues that forced pregnancy and any debate about it should have ended with the 13th Amendment’s abolition of slavery.

The criminalization of abortion in the 1850s, then, was about controlling women, anti-immigrant fervor and fostering enslavement.

In the 1970s, which ultimately saw the Roe decision, some activists who sought to end state laws that criminalized abortion argued against having any law governing it. When asked for their model abortion law, they held up a blank piece of paper. Abortion did not need to be the subject of law or constitutional interpretation any more than, say, the treatment of infection or an appendectomy. Doctors or other healers might debate best practices, but the state had no reason to get involved in the content of these discussions. It was, these activists argued, the moral property of women — a question only pregnant people could grapple with. The best law was no law at all.

Although this position sounds radical now, 50 years and innumerable limitations on abortion rights later, it is not all that far from what the Constitution’s framers understood, at least in pregnancy’s early stages, when almost all abortion takes place. As Blackstone and Wilson pointed out, for the Constitution’s authors, abortion could only be contemplated as a subject of law after quickening, when the fetus could move independently of the person carrying it. And there was no medical test for that. Only the pregnant woman could determine when fetal movement took place.

Alito’s draft opinion argues that Roe was not just bad law but that it relied on a bad reading of U.S. history and traditions. While he acknowledges Blackstone’s account of the common law in not criminalizing abortion in the United States before quickening, he turns to Dellapenna’s work to find an alternative tradition that criminalized abortion. Uneasy, perhaps, about ignoring Blackstone, Alito goes on to move the goal posts on quickening itself, making it precise and medical, nothing to do with pregnant women. It falls between 16 and 18 weeks, he claims, conveniently much closer to Mississippi’s 15-week limit.

Ironically, the originalist case is much stronger for eliminating restrictions on abortion before Roe’s 24-week limit than Alito acknowledges. The Constitution’s silence on abortion spoke loudly for its original authors. They believed that no law or court — not federal, not state, not constitutional — should criminalize abortion in the early months of pregnancy.