Aborting history.

Abortion activism has corrupted constitutional interpretation. Can it corrupt the profession of history as well? A case study of the academic betrayal of truth.

Mr. Ponnuru is NR's national reporter.

CASES before the Supreme Court concerning abortion have been known to generate controversy. So when the Justices agreed to hear Webster v. Reproductive Health Services (1989), they had to expect a flood of amicus curiae briefs from the National Organization for Women, Catholics United for Life, and the like. One brief, however, came from a less predictable quarter and attracted wide attention. It was submitted by three lawyers on behalf of 281 professional historians (later signatures brought the total to over 400). The brief's authors understood its novelty and significance: "Never before," the brief began, "have so many professional historians sought to address this Honorable Court in this way."

The historians claimed that Americans had recognized the right to choose abortion at the time of the Republic's founding. Further, they argued, nineteenth-century legislators restricted that right for four reasons that either no longer apply or are no longer constitutionally permissible: to protect women from unsafe abortions, to help physicians to constitute themselves as a profession, to enforce gender roles, and to prevent Catholic immigrants from increasing their proportion of the population. A concern for the alleged life of the fetus "became a central issue in American culture only in the late twentieth century." Since restrictions on abortion impose severe costs on women and since the historic rationales for those restrictions are discredited or obsolete, the historians concluded, the Court should reaffirm the constitutional right to abortion whose existence it had announced in Roe v. Wade (1973).

This historical account has important legal implications. Justice Blackmun's majority opinion in Roe drew support from the assertions that it was "doubtful" that the common law had ever prohibited abortion and that nineteenth-century statutes did not reflect a belief in the personhood of fetuses. The brief's account also obviously has implications outside the courthouse. If it were accurate, anti-abortion laws could be seen as an aberration from an American tradition, Roe as the restoration of that tradition. And the anti-abortion movement would be tainted by a history of racism and sexism.

But the brief's key claims are false. The law always restricted abortion, and the campaign against abortion did seek to protect what it viewed as fetal life. Moreover, the published work of signatories to the brief disproves its historical arguments. The very sources on which the brief relies contradict its thesis. And its shoddiness is too pervasive and tendentious for mere incompetence to suffice to explain it.

The brief's history of abortion begins with the following paragraph:

As the Court demonstrated in Roe v. Wade, abortion was not illegal at common law. Through the nineteenth century American common-law decisions uniformly reaffirmed that women committed no offense in seeking abortions. Both common law and popular culture drew distinctions depending upon whether the fetus was "quick," i.e. whether the woman perceived signs of independent life. There was some dispute whether a common-law misdemeanor occurred when a third party destroyed a fetus, after quickening, without the woman's consent. But early recognition of this particular crime against pregnant women did not diminish the liberty of the woman herself to end a pregnancy in its early stages. [Emphasis in original.]

Almost every statement in this paragraph is false or misleading.

The historians' first source for their contention that "abortion was not illegal at common law," Justice Blackmun's opinion in Roe, based its more tentative version of this claim on a 1971 article by Cyril C. Means Jr. Means acknowledged that many authorities on the common law held abortion to be illegal. He argued, however, that two fourteenth-century cases held abortion at any stage of pregnancy to be neither a felony nor even a serious misdemeanor; that Bracton and Fleta had misunderstood the common law; that Coke had deliberately misrepresented the common law; and that Coke's "masterpiece of perversion" misled later writers.

Research since 1971 has thoroughly discredited Means's article. Full records of the cases at issue show that only procedural and evidentiary problems prevented the imposition of penalties, thus vindicating Bracton, Fleta, and Coke from the charges of scholarly error and misconduct. Indictments or appeals of felony for abortions dating as far back as 1200 demonstrate that neither a woman's consent nor absence of quickening rendered abortion legal. Nor were women who sought abortion immune from prosecution, in England or the Colonies.

The brief's second citation on abortion's status as a "common-law liberty" is of pages 3 - 19 of James C. Mohr's Abortion in America. The brief elsewhere praises this book ("widely regarded as accurate and comprehensive") and highlights Mohr's signing of the brief. Most of the cited pages do not examine the issue at hand, but on page 3 Mohr writes, "After quickening, the expulsion and destruction of a fetus without due cause was considered a crime." The historians next cite Means, repeating his slander against the common-law writers.

Last, they cite pages 119 - 121 of Angus McLaren's Reproductive Rituals to claim, "Even in cases involving brutal beatings of women in the late stages of pregnancy, common-law courts refused to recognize abortion as a crime, independent of assault upon the woman, or in one case 'witchcraft."' Neither the cited pages nor any other pages of McLaren's book contain anything to support this proposition. On page 121, McLaren notes that "it is necessary to turn to the writings of the common-law advocates" to understand the legal status of abortion between 1650 and 1800; after examining a few of these writings, he summarizes, "Seventeenth-century jurists thus recognized that a woman could be charged with procuring her own abortion, but only after the foetus had quickened."

The historians next assert that abortion "was not uncommon in colonial America." They cite McLaren as the sole support for this astonishing statement. But his book deals with England, not America. The cited chapter contains just one quote on the prevalence of abortion -- by an Englishman, in 1824, referring to the impressions that led Parliament to pass an anti-abortion law in 1803.

The extremely high birthrates of the time and the danger and ineffectiveness of contemporary methods of abortion suggest that it was uncommon. So does the high proportion of brides who were pregnant on their wedding day, a datum the brief oddly adduces in support of its contention. In Intimate Matters, John D'Emilio and brief signatory Estelle B. Freedman list coitus interruptus, prolonged nursing, and abstinence as methods used to limit family size in colonial America, adding that "other means to impede conception or terminate pregnancy were rarely employed."

The brief then turns to the claim that the abortion laws between 1820 and 1860 were aimed at maternal safety. According to the brief, New York lawmakers sought to protect women from dangerous medical treatment when they passed abortion regulations in 1828 --a claim first made in another influential article by Means. His argument hinged on a proposed, but never passed, section of the bill that would have outlawed any surgery not necessary for the preservation of a patient's life. The sections regulating abortion contained similarly worded exceptions allowing abortions to save a pregnant woman's life; hence, he reasoned, they too were intended to prevent unnecessary operations from endangering lives.

Mohr's book explicitly refutes these arguments. If lawmakers had wished to regulate abortion merely as a dangerous form of surgery, they would neither have treated it separately nor have passed abortion regulations while defeating the proposed regulations on all surgery. The brief also reports that the "act finally adopted applied only to surgical abortion"; but a glance at the text of the law, correctly quoted by Mohr, reveals that it applied to abortions by "any medicine, drug, substance or thing whatever, . . . any instrument or other means whatever."

The historians next examine the alleged motives for the laws enacted from the mid nineteenth century onward, starting with the desire of the "regular" physicians associated with the new American Medical Association to raise their status and incomes through regulation. The brief, in a passage relying on Mohr, describes the physicians' movement against abortion as "one chapter in a campaign by doctors that reflected a professional conflict between 'regulars' (those who ultimately became the practitioners and proponents of scientific medicine) and 'irregulars,' who were often willing to perform abortions." Mohr lists three professional motives for the regulars' support for anti-abortion laws: such laws enlisted the power of the state to penalize, and to remove a competitive advantage of, the irregulars; they enforced standards on wayward regulars, thus "promoting a sense of professionalism"; and they let doctors "recapture what they considered to be their ancient and rightful place among society's policymakers and savants."

Neither the brief nor Mohr's book presents any evidence that the legislators who enacted anti-abortion laws understood themselves to be acting primarily in these interests or that the voting public that consented to those laws understood them in that light. Whatever the physicians' motives, they succeeded by persuading others of the justice of their cause. Many AMA members in the 1860s and 1870s also supported the legalization and regulation of prostitution as a public-health measure, but failed to convince their contemporaries.

More importantly, Mohr's book makes clear that physicians opposed abortion in large part because of a concern for what they viewed as fetal life. He writes, "The regulars' opposition to abortion was partly ideological, partly scientific, partly moral, and partly practical." A few pages later, he expands on their moral views: "The nation's regular doctors . . . defended the value of human life per se as an absolute." Opposition to abortion as a species of killing forms the basis of each of the other three components. The doctors' "ideological" opposition to abortion consisted of their belief in the Hippocratic Oath, which states: "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy." The "scientific" component of the physicians' stance was their realization "that conception inaugurated a more or less continuous process of development. . . . From this scientific reasoning stemmed the regulars' moral opposition to abortion at any stage of gestation."

By the "practical" reasons, Mohr means the professional motives already mentioned: eliminating competition, enforcing standards, and gaining the status of policymakers. The last two goals imply a prior determination on other grounds of a standard to enforce and a policy to make. Nor can the goal of eliminating competition be understood without reference to the physicians' abhorrence of abortion; otherwise, they could have performed abortions themselves.

While the brief does not treat the protection of alleged fetal life as a goal of the physicians, it refers on three occasions to the possibility that this goal motivated some physicians -- each time with comical shiftiness, as in the following passage:

A core purpose of the nineteenth-century laws, and of the doctors in supporting them, was to "control medical practice in the interest of public safety." This is not to deny that some doctors had moral objections to abortion, as well as moral and social views about women and race. But the most significant explanation for the drive by medical doctors for statutes regulating abortion is the fact that these doctors were undergoing . . . professionalization.

More than just "some doctors" had to share those "moral objections," since they formed the basis of the regulars' refusal to compete for the abortion trade.

And in fact, the campaign against abortion did not play a substantial role in professionalizing American medicine. Book-length discussions of medical professionalization written by signatories to the brief do not even mention the campaign, let alone make it a key factor in their narratives. Signatory Paul Starr's well-regarded The Social Transformation of American Medicine, for instance, mentions the campaign once, in a footnote on the involvement of physicians in projects of moral reform. For Her Own Good, by signatory Barbara Ehrenreich and Deirdre English, discusses professionalization as it relates to female patients without once mentioning the campaign. Signatory Judith Walzer Leavitt's Brought to Bed focuses on how childbirth moved from the home to the hospital; although the brief cites the book to show the centrality of "the medical profession's gradual consolidation of authority" to the shift, the book nowhere discusses the physicians' campaign against abortion as a part of that shift. The brief cites all three books in its section on professionalization without mentioning these points.

The brief weaves an even more tangled web in implying that nineteenth-century feminists supported abortion rights:

The women's movement of the nineteenth century affirmed that women should always have the right to decide whether to bear a child and sought to enhance women's control of reproduction through "voluntary motherhood," ideally to be achieved through periodic abstinence. Anxieties about changing family functions and gender roles were critical factors motivating the all-male legislatures that adopted restrictions on abortion.

The brief cites Linda Gordon's Woman's Body, Woman's Right to bolster its assertion that feminists favored "voluntary motherhood." But Prof. Gordon also writes, "[I]t is important to stress the fact that neither free lovers nor suffragists" -- the advocates of voluntary motherhood -- "approved of contraceptive devices," let alone abortion. Most feminists, she recognizes, opposed abortion. She signed the brief anyway. (So did Carl N. Degler, whose book At Odds notes that "during the Nineteenth century feminists and free lovers alike condemned abortion because it destroyed a human being.")

This section of the brief was altered when it was resubmitted to the Supreme Court in Planned Parenthood v. Casey (1992). The Casey brief acknowledges that "some feminists" (a curious phrase to apply to a group including Elizabeth Cady Stanton, Susan B. Anthony, and Victoria Woodhull) opposed abortion, but asserts that they did so "not on moral grounds, but as an object example of women's victimization at the hands of men."

While it is true that feminists viewed abortion as a result of "women's victimization," compassion for women who considered abortion did not preclude moral opposition to it. The Revolution, the feminist journal, argued that

the woman is awfully guilty who commits the deed. It will burden her conscience in life; it will burden her soul in death; but oh! thrice guilty is he who, for selfish gratification, heedless of her prayers, indifferent to her fate, drove her to the desperation which impelled her to the crime.

An editorial in Woodhull and Claflin's Weekly dubbed abortion "the Slaughter of the Innocents." It observed that abortion was often a reaction to "the slavery that child-bearing almost necessarily entails in our society as at present organized," but also declared that abortion "stamps the brand of Cain upon every woman who attempts or is accessory to it." Those who performed abortions did not get off lightly, either: "Let those who see any difference regarding the time when life, once begun, is taken, console themselves that they are not murderers having been abortionists."

Physicians and feminists were not alone in attacking abortion as "infanticide" and "murder." A New York Times article on abortion declared, "Thousands of human beings are thus murdered before they have seen the light of this world." It described the abortionist's trade as "a systematic business in wholesale murder." The imagery some writers used far exceeded in gruesomeness anything in today's anti-abortion polemics. An 1880 National Police Gazette article began, "The civilization of today is opposed to babies, and its basest product is the abortionist. . . . He lives upon the crushed and mangled bodies of tender, breathless infants." The authors of Light on Dark Corners, a book of advice on the sexual instruction of youth, alluded to "the hecatombs of infants that are annually sacrificed to Moloch" as a result of "this monstrous crime."

Anti-abortionists made arguments based both on "the right to life" and on the slippery slope to "post-natal child-murder." And contrary to the brief's assertions, both judicial opinions and statutes in the nineteenth century recognized fetal personhood. That recognition was implicit in legislators' decisions, e.g., to increase the punishment for attempted abortion when it could be proven that the attempt had killed a fetus or to group abortion with offenses against children in the criminal code.

The historians' brief is, in short, an utter fraud, riddled with scholarly abuses and inaccurate conclusions. The historians mischaracterize sources. They misreport facts. They support claims with citations that have no relevance to those claims. They rip quotations out of context. They rely on discredited sources -- even on sources that signatories to the brief have themselves discredited. They contradict sources on which they rely heavily and which signatories wrote, without a word of explanation or any retraction by those authors elsewhere. Sylvia A. Law, one of the lawyers who submitted the brief, later declared in a forum that "there is tension between truth-telling and advocacy." An examination of the brief suggests how its drafters resolved that tension.

By signing the brief, historians specializing in subjects covered by it (e.g., Degler, Freedman, and Gordon) endorsed beliefs they do not hold. Mohr's case is particularly egregious, though he at least declined to sign the Casey version of the brief. Other historians were simply ignorant. Signatories included authorities on the history of architecture, early modern France, and North China. Luminaries like Arthur Schlesinger Jr. and Elizabeth Fox-Genovese, for instance, both signed the Casey brief but are hardly experts in the field. Yet signatories asked the Supreme Court to pay attention to their claims about the history of abortion law because of their professional credentials.

And the brief has had great influence. Press coverage in 1989 tended to assume the accuracy of its claims. Legal scholar Walter Dellinger, now an assistant attorney general in the Clinton Administration, devoted most of an article in The New Republic to an uncritical summary of it. Even George Will, an opponent of the doctrine of Roe, wrote a column that largely accepted the brief's factual account (while questioning its legal conclusions). In The New York Review of Books, legal philosopher Ronald Dworkin wrote, "The best historical evidence shows" that "anti-abortion laws, which were not prevalent in the United States before the middle of the nineteenth century, were adopted to protect the health of the mother and the privileges of the medical profession, not out of any recognition of a fetus's rights." A footnote revealed that by "best historical evidence" Dworkin meant the historians' brief. He used its argument to support his contention that fetuses have never had the status of "constitutional persons." Dworkin repeated this argument, again citing the brief, in his 1993 book Life's Dominion.

Laurence Tribe, the prominent constitutional theorist, consulted the brief extensively for his book Abortion: The Clash of Absolutes. At the opening of a chapter on "Two Centuries of Abortion in America," he drew on the brief to make a philosophical point about the historicity of moral conflicts:

Current debate in America concerning abortion appears to pose an insoluble conflict between two fundamental values: the right of a fetus to live and the right of a woman to determine her own fate. . . . [But] these competing values are in significant part peculiar to late-twentieth-century America. Far from being inevitable outgrowths of the natural order of things, these competing values are socially constructed.

In the first footnote to this chapter, Tribe described the brief as "the point of departure for much of this chapter."

When the brief was first publicized in 1989, an article in The Nation, the left-wing weekly, exulted, "The signatures on this amicus brief, many those of eminent mainstream scholars, signal a coming of age for the historians who have entered the field since the 1960s." They certainly do.