Comment Of The Day (2): “Today’s Dobbs Leak Freakout Developments And Observations”

This Comment of the Day, by Chris Marschner, is on a different topic entirely, the much discussed assertion by Justice Alito in his draft opinion that abortion cannot legitimately be called a Constitutional right because unlike the other rights, it was generally disapproved in American society and condemned or regarded as shameful over centuries of Western culture.

Chris’ comment was posted in rebuttal of another by esteemed commenter zoebrain, who wrote,

Women Health. Summer 1979;4(2):159-67.
Abortion in early America : Z Acevedo

“This piece describes abortion practices in use from the 1600s to the 19th century among the inhabitants of North America. The abortive techniques of women from different ethnic and racial groups as found in historical literature are revealed. Thus, the point is made that abortion is not simply a “now issue” that effects select women. Instead, it is demonstrated that it is a widespread practice as solidly rooted in our past as it is in the present.”

” Abortion was frequently practiced in North America during the period from 1600 to 1900. Many tribal societies knew how to induce abortions. They used a variety of methods including the use of black root and cedar root as abortifacient agents. During the colonial period, the legality of abortion varied from colony to colony and reflected the attitude of the European country which controlled the specific colony. In the British colonies abortions were legal if they were performed prior to quickening. In the French colonies abortions were frequently performed despite the fact that they were considered to be illegal. In the Spanish and Portuguese colonies abortion was illegal. From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states. During the 1860s a number of states passed anti-abortion laws. Most of these laws were ambiguous and difficult to enforce. After 1860 stronger anti-abortion laws were passed and these laws were more vigorously enforced. ”

Alito is factually incorrect in his statements.

This is as good a place as any to remind readers that comments chosen as a Comment of the Day does not necessarily represent my position or that of Ethics Alarms.

Here is Chris Maschner’s Comment of the Day on the post, “Today’s Dobbs Leak Freakout Developments And Observations”…

***

Zoe: Your citation was published in 1979, six years after Roe was decided. There would be no reason to publish this unless the practice was in need of a defense. That in itself suggests that significant attitudinal differences existed in American society even after Roe was decided. Those differences are still prevalent today and may even be more entrenched throughout the nation. Alito’s opinion made the point that Roe and Casey could not be settled simply by decree.

I also went and looked at some of the other abstracts; none of them allowed for any scrutiny of the thesis presented. One was from Planned Parenthood itself to promote the historical assessment that abortion was frequently practiced. So what, murder frequently went unpunished as well. Moreover, what they describe are induced miscarriages and not dilation and evacuation techniques which involves the actual physical destruction of a growing human being. The morning after pill is the equivalent of the black root and cedar root methodology used by indigenous peoples. What is missing from these arguments is that these peoples did not have luxury of having multiple forms of pharmaceutically based and mechanical contraceptive devices that exist today. Thus women have more birth control choices today than women prior to 1973.

The most important issue at hand is, as stated in the treatise you quote:

“During the colonial period, the legality of abortion varied from colony to colony and reflected the attitude of the European country which controlled the specific colony.”

This is exactly what the Alito draft states:  Leave it up to the states.

As for the historical background, the article itself suggests that the practice was either totally socially unacceptable or with limitations.

“In the British colonies abortions were legal if they were performed prior to quickening. In the French colonies abortions were frequently performed despite the fact that they were considered to be illegal. In the Spanish and Portuguese colonies abortion was illegal. From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states. During the 1860s a number of states passed anti-abortion laws. Most of these laws were ambiguous and difficult to enforce. After 1860 stronger anti-abortion laws were passed and these laws were more vigorously enforced. ”

That is hardly a ringing social endorsement.

Further, irrespective of methodology and prevalence among indigenous tribes, Alito was referring to historical American jurisprudence. Many outrageous behaviors were prevalent then and still are, but that simply does not legitimize them through historical practice. Monopolization of business and gaining satisfaction by dueling were also historically prevalent, but we outlawed those.  The Alito draft is not saying that abortion is illegal; it merely states that the decisions on this issue are best left to the states.

8 thoughts on “Comment Of The Day (2): “Today’s Dobbs Leak Freakout Developments And Observations”

  1. As I replied to Chris’s comment when he wrote it (but four days late so I presume nobody read it), what France, Spain and Portugal’s laws say has nothing to do with American law because America at the time of the Constitution and the Bill of Rights consisted of thirteen states all of whose laws came from English law.
    In 1821, Connecticut became the first state to pass an abortion statute in the United States. Before then there was only common law which prohibited abortions after quickening which is when a woman starts to feel their baby’s movement, normally happening around four to five months.
    Also it seems the main purpose of the law was more to prevent the harm done to the woman by amateur abortionists than to protect the fetus.

  2. Justice Alito said “it was generally disapproved in American society and condemned or regarded as shameful over centuries of Western culture.”
    Was the disaproval and shame really about the removal of the fetus or was it more about the fact that an unmarried woman had got herself pregnant?

    • I would bet both. If we accept the fact that western culture has been shaped by various Judeo Christian denominations and that government welfare programs did not exist it is probable that American jurisprudence and English Common law were in part molded to reflect the ideals of the church. The concept that premarital sex was “shameful” probably stemmed from religious ideals of monogamy and marriage. With that said, most of us never ask why did they (clerics) admonish the flock to abstain until after marriage. Just going forth to multiply is insufficient a rationale. It stands to reason that the church needed to limit the number of foundlings on its doorstep because social welfare programs came only from the church.
      Given the church cannot reconcile the idea of killing a child it had to find a compromise which led official to adopt the quickening standard. This is just conjecture on my part but it makes some sense. The problem we have today is that medical science has moved the viability standard earlier and earlier. Some pro abortion advocates want the standard to be the fetus is not a baby until after delivery.

  3. If any of my assertions are either inconsistent with the draft ruling or just plain inaccurate I welcome any input that helps my understanding on this current topic.

  4. Chris, a great response! I especially appreciated you highlighting the colony-to-colony differences in legality.

    The pro-choice voices have been saying that the Supreme Court is completely unaccountable to America’s citizens because they are potentially striking down Roe. Of course, the Court is no more and no less “unaccountable” than it was fifty years ago when it upheld Roe. Regardless, moving this decision out of the realm of the high Court and federal law would seem to give those voices exactly what they want.

    This could be the first time in my lifetime – and the first time in half a century for those older than I – that the American people would have a direct voice in this most divisive issue. If the majority opinion stays intact, SCOTUS has returned to us some power that most of us have never had. This is a beautiful thing, and we need lots more of it.

    But then I wonder why this new-found power still has the pro-choice side so upset. I think the answer is obvious. The statements they’ve been making for fifty years while Roe was safely ensconced in federal law – basically, that a significant majority of Americans support abortion as set up under Roe – will now be put to the test. And I’m guessing that they fear what most pro-life voices already suspect: support for unrestricted abortion in America is not NEARLY as strong as they would have us believe.

    I hope we soon get to find out…

  5. Legality does not necessarily reflect morality. Morality is derived from the consensus of society and culture when we disregard natural law. We live now in an era where morality is merely about personal gratification which we have legalized to make ourselves seem righteous.

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