A Single “Poorly Documented” Anecdote Cannot Establish America’s History and Tradition on Abortion

COMMENTARY Life

A Single “Poorly Documented” Anecdote Cannot Establish America’s History and Tradition on Abortion

Jul 22nd, 2022 4 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies.
How can a single anecdote that even Poggi and Kierner describe as “poorly documented in the county court records” possibly challenge decades of investigation and scholarship? Catherine Delahaye / Getty Images

Key Takeaways

Roe v. Wade became one of the most disgraceful decisions in Supreme Court history, not least because it was based on a fictional version of abortion history.

Sarah Houghen Poggi and Cynthia A. Kierner claim they have found what a horde of researchers, publishing a library’s worth of scholarship, all somehow missed.

These authors take a single, poorly documented anecdote and attribute views to three of America’s Founders that none of them expressed.

Roe v. Wade, decided in 1973, quickly became one of the most disgraceful decisions in Supreme Court history, not least because it was based on a fictional, even fraudulent, version of abortion history in America. A legion of scholars from across the ideological spectrum have published a warehouse’s worth of books, journal articles, and commentary confirming that, since long before American independence, the law increasingly restricted abortion to protect human beings before birth.

Now, two authors tell us, in but a single Washington Post op-ed, that they have the historical smoking gun proving that Roe v. Wade was right after all. But when the smoke clears, there’s really nothing there.

Here’s why abortion history matters. The 14th Amendment says that “[n]o State shall . . . deprive any person of life, liberty, or property without due process of law.” The Supreme Court insists that this provision actually creates unwritten substantive rights that only judges can see. The Court has said that these judge-made rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”

In Roe, Justice Harry Blackmun used a two-step maneuver to falsely suggest that abortion met this standard. First, he spun a fictional tale of abortion history by simply repeating assertions by Cyril Means, general counsel of the National Association for the Repeal of Abortion Laws. Means, however, had intentionally constructed a “radically revisionist history” of abortion in America to claim that the law had long treated abortion lightly, if at all. Second, Blackmun turned the misleading observation that “abortion was viewed with less disfavor” during the 19th century than in 1973 into a literal constitutional “right” to abortion.

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For the past 50 years, legal scholars, historians, social scientists, and others have dismantled Blackmun’s house of constitutional cards, detailing his omissions, misinterpretations, misrepresentations, and illogical assertions. One example is Dispelling the Myths of Abortion History, a 1,300-page treatise by Professor Joseph Dellapenna, who acknowledges his generally pro-choice perspective on abortion. Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cites this work as it overruled Roe, concluding that: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

But wait. Sarah Houghen Poggi and Cynthia A. Kierner claim they have found what a horde of researchers, publishing a library’s worth of scholarship, all somehow missed. They tell of Nancy Randolph who, in 1792, received from her cousin Martha an herb known to cause abortion. According to Poggi and Kierner, writing 230 years after the event, several pieces of “circumstantial obstetric evidence” suggest that “what happened was . . . a deliberate second-trimester abortion.”

In the end, however, neither Nancy nor her brother-in-law Richard, accused of impregnating her, were prosecuted for the same reason. Proving pregnancy in the 18th century required evidence of “quickening,” or movement of the child in the womb, and such evidence did not exist in this case. Richard escaped prosecution by arguing that Nancy had not been pregnant, and Poggi and Kierner concede that prosecuting Nancy herself would have required the same evidence of quickening.

How can a single anecdote that even Poggi and Kierner describe as “poorly documented in the county court records” possibly challenge decades of investigation and scholarship by so many? This story is important, they say, because its characters include no fewer than three of America’s founders: Nancy’s uncle, Thomas Jefferson, and two of Richard’s lawyers, Patrick Henry and future Supreme Court Chief Justice John Marshall. Poggi and Kiernan insist that these Founders “tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution.”

The key word there is “tacitly,” or, put another way, “silently.” Poggi and Kiernan offer no evidence of any kind about what these men thought or believed about anything related to abortion—no words, no writings, nothing. Instead, they fill in blanks of their own making with speculation of their own creation. In fact, the subtitle of their op-ed is this: “Thomas Jefferson, John Marshall and Patrick Henry didn’t advocate for prosecution of a woman who probably had an abortion.”

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In Dobbs, Alito examined various sources that would inform whether a right to abortion had been any part of, let alone deeply rooted in, America’s history and tradition. “No state constitutional provision had recognized such a right . . . no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.” Poggi and Kierner don’t cite a single one. Alito: “At common law, abortion was . . . regarded as unlawful and could have carried very serious consequences at all stages.” Poggi and Kierner: nothing. Alito: “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” Poggi and Kierner: crickets.

So let’s take stock. These authors take a single, poorly documented anecdote and attribute views to three of America’s Founders that none of them expressed and for which no actual evidence exists. They then extrapolate the hypothetical views of these three men not only to “the minds of our nation’s Founders” generally, but as literally defining the entirety of our nation’s history and tradition on abortion. If it’s possible to construct a tale of abortion history more fanciful than Roe, Poggi and Kierner just may have done it.

This piece originally appeared in The National Review