WASHINGTON, May 6 (Reuters) – A draft ruling by the U.S. Supreme Court that will overturn the remarkable 1973 Roe v. Wade ruling legalizing abortion nationwide depends on a contested historical review of restrictions on the procedure introduced in the 19th century. you century.
Lawyers and scholars supporting abortion rights criticized Alito’s reading of the story as ignoring controversial facts and ignoring the details, as conservative justice sought to demonstrate that a woman’s constitutional right to terminate a pregnancy was wrongly recognized in the ruling. of Roe.
Conservatives, who oppose the right to abortion, praised Alito’s view, saying Rowe’s decision was based on a misreading of history.
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The unprecedented expiration of the project this week, before the nine judges finalize their decision – due by the end of June – has given critics a chance to review ongoing work, hoping other judges will consider joining Alito. this will change the outcome of the important case.
Alito’s bill will reaffirm the Republican-backed Mississippi law – rejected by lower courts as a violation of the Roe precedent – a ban on abortion at 15 weeks’ gestation.
His reasoning was that the right to abortion was not “deeply rooted in the history of this nation.” Alito relied on a reading of state book laws in 1868, when the 14th Amendment to the U.S. Constitution, which, among other things, protected the rights of due process, came into force immediately after the U.S. Civil War and the end of slavery.
Roe’s ruling found that the right to abortion stems from the protection of the 14th Amendment of Rights in due process, which the Supreme Court found to protect the right to privacy.
For Alito, the scope of rights under the 14th Amendment must be seen in the context of the time in which it was created. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then 37 US states “passed laws that make abortion a crime” even in early pregnancy. This shows, Alito claims, that at the moment there was no understanding of any right to abortion.
Some advocates for abortion rights said many states lacked criminal restrictions on abortion until the mid-19th century, and some banned it only when performed late in pregnancy – known as “acceleration” – when the woman can feel the fetus moving, usually at four to five months of pregnancy.
Tracy Thomas, a professor at Akron Law School in Ohio, said Alito selectively quoted the story presented by anti-abortion activists.
“We have to interpret history, but we also have to see the nuance, and he misses the point,” said Thomas, who supports abortion rights.
A statement filed in the case by groups representing historians supporting abortion rights said that in 1868, “almost half of the states continued either not to ban abortion altogether or to impose lighter penalties on abortion before speeding up.” .
Even in places where all abortions are banned, “ordinary citizens continue to believe that not all abortions are criminal and that women have the power to decide whether to terminate a pregnancy,” the document said.
Aaron Tang, a law professor at the University of California, Davis, argues that state laws passed in the 19th century are not understood to prohibit abortion before acceleration.
“There is a huge risk that we will try to answer this question from 2022 on the basis of what happened in 1868,” Tang said.
Conservative scholars reject the idea that there was once an implicit right to abortion. In a document filed in the case, Robert George of Princeton University, who opposes abortion rights, called it a “ridiculous statement” and criticized Rowe’s decision to rely on the work of the late scientist Cyril Mines, an abortion rights activist. , whose work Alito specifically rejected.
Some experts in support of abortion rights said it did not matter what state laws were on abortion more than 150 years ago.
The Supreme Court has faced accusations of selective reading of history before, especially when it found in 2008 that the Second Amendment’s right to hold and bear arms included the individual’s right to own a self-defense weapon at home.
The late Judge John Paul Stevens, who disagreed with the case, later wrote of his disappointment at how the majority of the court handled the historical records, calling the ruling “the worst self-inflicted wound in court history.”
David Garrow, a legal historian, said lawyers on both sides of the abortion debate had ignored the practical reality, that the procedure was common even in countries where it was banned when the 14th Amendment was added, and that prosecutions were rare.
“If you want to claim that abortion is deeply rooted in American history, don’t argue about state statutes,” Garrow said. – You are arguing about the evidence of demographic reality.
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Report by Lawrence Hurley; Edited by Will Dunham and Scott Malone
Our standards: Thomson Reuters’ principles of trust.
Lawrence Hurley
Thomson Reuters
A Washington-based reporter covering legal issues with a focus on the U.S. Supreme Court, winner of the Pulitzer Prize for a team project on how defending qualified immunity protects police officers accused of excessive force.
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