The good old Catholic Church.Abortion is not mentioned in the U.S. Constitution. According to Justice Samuel Alito, to qualify for equal protection and due process under the 14th Amendment, an unenumerated right has to be “implicit in the concept of ordered liberty” and “deeply rooted in the Nation’s history and traditions.” In his draft decision in Dobbs v. Jackson Women’s Health Organization overthrowing Roe v. Wade, Alito’s “inescapable conclusion” is that, “on the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973.”
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Common law did not acknowledge that a fetus existed separately from a pregnant woman until “quickening,” a stirring in the womb (15 or 16 weeks into the pregnancy), which she was in the best position to ascertain. Neither did common law criminalize abetting, performing, or receiving abortions. When the U.S. Constitution was ratified, every state respected the right to abort prior to quickening. Until 1869, when the Roman Catholic Church decreed that life begins at conception, many clergy maintained that the unborn were not “ensouled” until quickening.
Enacted in Connecticut in 1821, the first abortion law forbade only the use of poisons. Before 1839, only eight states regulated abortions.
The Hill
This contested history — and the pro-choice statutes enacted by state legislatures in the 1960s and early ‘70s — do not constitute “an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of common law until 1973.”
Nor does Alito make a compelling case that a constitutional right can only be recognized if it is deeply rooted in the nation’s history and traditions. As the amicus curiae brief submitted by the Biden administration in Dobbs points out, contraception, gay sex, gay and inter-racial marriage are not mentioned in the Constitution and “most were widely prohibited when the 14th Amendment was adopted.”
Click here for an enlightening discussion of Alito's "opinion" (draft).
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