Originalist Abortion

Conservative justices – Thomas, Scalia, Allito, Roberts (in descending order of extremism) – take issue with abortion rights because they believe, among other things, that they require us to “rewrite” the Constitution to gain a modern reading – that the Constitution’s 18th century drafters and ratifiers; and-or the 14th amendment’s 19th century drafters and ratifiers would not have subscribed to women’s reproductive freedom. These conservatives dont treat the Constitution as a “living document” – but instead would freeze it in time, holding its meaning constant since it became law, which occurred in 1791 for the Bill of Rights, and 1868 for the 14th amendment. Since people in 1791 and-or 1868 would not have regarded abortion as a right, they will argue, then we should not. This style of Constitutional interpretation is called “originalism.”

Clearly, if the Constitution’s protection of privacy evolves with modern sensibilities, then a woman’s dominion over her reproductive organs cannot be seriously questioned – almost every rich, modern country – including the US – has resolved this issue to permit abortion on demand, without significant limits. But a woman should also have the same rights to early-term abortion under a conservative, originalist reading of the Bill of Rights and 14th amendment.

Few people know that when the Constitution and Bill of Rights were ratified in the late 18th century, early-term abortion was legal in EVERY state – and had been legal under the common law for centuries. In fact, abortion was legal in every US state from colonial times up until 1821, when Connecticut passed the US’s very first anti-abortion law.

The roots of legal abortion predate American history. The Christian philosopher St. Augustine (4th century AD) adopted Aristotle’s moral reasoning (4th century BC), sanctioning abortion until the “quickening” – when the fetus is felt to kick, which doesnt happen till after the 1st trimester. Thomas Aquinas (13th century) adopted Aristotle’s belief that the soul entered the male fetus in the 40th day (90th day for females!) – and so also permitted early-term abortion. The Catholic Church followed these prescriptions, and permitted early-term abortion until 1869.

What even fewer people know is that early 19th century anti-abortion laws were adopted NOT to protect fetuses or embryos, but to protect women from a potentially dangerous practice. Such laws did not necessarily address abortion per se, or women, but the drugs that induced abortion, and the druggists who dispensed them. The Connecticut law is a good example – it outlawed “abortifacients” – poisons which were used by women to induce an abortion – and subjected apothecaries to prosecution for distributing them. Like most early 19th century anti-abortion laws, the Connecticut law did NOT subject women to penalty or punishment for abortion. Most of the early laws did not apply to early-term abortions in any case. And despite such laws, abortifacients were widely advertised in major US cities throughout the mid-19th century; during which time abortion remained quite common in America – most frequently practiced by married Protestants, right through the 1860s, when abortion laws first targeted women.

Some of the founding fathers objected to adding a Bill of Rights to the Constitution. One specific fear was that if we had a discrete list of rights, someone could argue that a particular right’s absence from the list was evidence that it was not a right. To cure this problem, the 9th amendment was included in the Bill, expressly stating that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” it’s primary purpose is to prevent one specific legal argument: you cannot construe the absence of a “right to abortion”, for example, in the text of the Constitution as indicating that the right doesnt exist. (The charm of conservatives is their fondness for seizing on the one Constitutional interpretation that the Constitution itself forbids!)

Even if the 9th amendment evidences the existence of other rights, one cannot argue that everything a person was allowed to do in every state in 1791 (and-or 1868) is a human right. But abortion is special – it’s hard to imagine anything more intimately personal – nor an interest into which the intrusion of the state is more noxious.

Early anti-abortion laws were meant to regulate the practice of medicine, and protect women, not fetuses. Laws aimed at forcing women to take pregnancies to term were quite uncommon before the 1860s. An originalist reading of the Constitution must incorporate the fact that early-term abortion – from colonial times, right through the mid-19th century – was an entirely acceptable part of mainstream American life. A law outlawing the practice entirely would likely have shocked an 18th or 19th century sensibility. For these reasons, abortion should be regarded as a Constitutional right, whether you give the Constitution a modern or an originalist reading.

Refs:

good articles on the history of abortion in the early US:

https://www.prochoice.org/about_abortion/history_abortion.html

http://www.theatlantic.com/past/docs/issues/97may/abortion.htm

http://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=d0e195&toc.id=d0e71&brand=ucpress

http://www.americanprogress.org/issues/religion/news/2013/08/08/71893/scarlet-letters-getting-the-history-of-abortion-and-contraception-right/

https://www.connerprairie.org/Learn-And-Do/Indiana-History/America-1800-1860/Women-And-The-Law-In-Early-19th-Century.aspx

other background info:

http://en.wikipedia.org/wiki/Abortifacient

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

19th – early 20th cent. ads for abortion drugs:

PS Roe v. Wade’s holding is based on the due process clause of the 14th amendment, which has been interpreted to require the states to respect most of the explicit and implicit rights in the bill of rights. In the case of Roe, this is the right to privacy – that states cannot insinuate themselves into such personal decisions made by a woman in consultation with her doctor.

Prior to the 1920s, the states were NOT bound by the bill of rights – in state court, you had no constitutional right against self-incrimination, privacy, counsel, speech, etc. This changed primarily during the 1960s, and today states are bound by most (not all) of the rights specified or implied in the Bill of Rights.

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