The Washington Post has been criticized for running a column by Aaron Tang, professor of law at the University of California at Davis, claiming an originalist basis for the right to abortion. The column makes highly dubious claims over the legality of early stage abortions and the likely understanding of the Framers of such a right. The suggestion is that, at least as to early abortions, the Framers and early legal commentators may have been technically pro-choice. I recently wrote a column on how abortions were treated as crimes at the time of the drafting of the Constitution. The assertions made by Professor Tang have been refuted by scholars like John Finnis, professor emeritus of Law and Legal Philosophy at Oxford University, and Robert P. George, McCormick professor of jurisprudence at Princeton University. The Supreme Court will hear one of the most important abortion cases in decades this week in in Dobbs vs. Jackson Women’s Health Organization.
Pro-choice originalism is about as incongruous as “advocacy journalism” but both seem evident in the effort to push this ill-conceived theory.
Professor Tang asserts “If the conservative justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.”
As previously discussed, early discussions of abortion refer to “the quickening” when a woman first feels the movement of a fetus in the womb. Yet, Tang makes the astonishing claim that Sir William Blackstone and the Framers understood that abortion was legal before the quickening. The claim is the outgrowth of his academic work, which notably was revised due to historical errors raised by Finnis and George previously.
The scholars objected that the Washington Post published many historical errors to suggest an originalist basis for abortion. They objected to 50 historical errors identified in the academic work and asserted that “Tang contested none of those errors, but accepted many of our charges silently, ignored many, confessed to a couple and replaced some with new ones awaiting yet another refutation. The Post op-ed relies on the errors that remain.”
One of the most striking claims made in the Washington Post column was the following:
“The importance of a state-law consensus is why antiabortion advocates have long rested their argument on the similar claim that when the 14th Amendment was ratified, 27 of the 37 states banned abortion throughout pregnancy. The state of Mississippi makes this claim in Dobbs v. Jackson Women’s Health Organization, the pending case, and no fewer than five amicus briefs repeat it.
This claim is wrong, grounded on a series of historical errors. The foundational mistake is the failure to grapple with the long-standing rule that abortion was legal so long as it was performed before quickening, the first noticeable fetal movement that often occurs at 15 or 16 weeks.”
Finnis and George slammed the statement as demonstrably untrue:
“States began to prohibit pre-quickening abortion in the 1820s, and accelerated through the 1840s and 1850s. By 1858 a majority of states had statutes criminalizing abortion at all stages. By the end of 1868, the year the 14th Amendment was ratified, a good three-quarters of the states had them. (By 1883, all but two or three, and eventually all, adopted such laws.) Tang’s claim that at ratification 21 of 37 states ‘recognized the lawfulness of pre-quickening abortion’ is simply false.”
The criticism is well-founded. I have discussed the quickening as a line drawn in earlier works, including Blackstone’s writings. However, Blackstone never said that pre-quickening abortions were legal. Here is the oft-cited key quote: “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb…whereby… she is delivered of a dead child, this…was…homicide or manslaughter. But at present it is…[only] a very heinous misdemeanour.”
That quote does not say that early abortions were treated as legal. To the contrary, Blackstone often does not refer to the quickening in describing all abortions as unlawful. He stated, for example, that “if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.” The quickening may have helped establish the knowledge and culpability of a pregnant woman in early cases. It did not mean that abortion was embraced as legal before the quickening. It certainly did not mean that such a distinction was adopted at the time of the ratification of the 14th Amendment.
Notably, the emphasis on the quickening would work against the challenge to the Mississippi law. That law sets the prohibition on abortions around the time of the quickening at around 15 or 16 weeks. That could be a compromise that many have suggested in upholding the law while also preserving Roe v. Wade.
I have no problem with newspapers publishing novel arguments that challenge common interpretations. Yet, this column states facts that seem demonstrably false. I credit Professor Tang for acknowledging some of his earlier errors in his academic work but the column does seem to replicate other errors.
The Washington Post has been previously criticized for publishing dubious claims that fulfill constitutional and political narratives. Indeed, it has published (and did not correct) erroneous statements on actual court holdings. There are simply some facts “too good to check” like Framers supported abortion rights. It is the type of opinion piece that is guaranteed a placement in a major newspaper, but creates widespread misunderstanding of the historical and legal context for important decisions.
The weird thing is that most advocates are not making originalist arguments. They are offering an alternative interpretive view of the Constitution as evolving in its meaning on issues like privacy. There is a reason why such originalist arguments have not been embraced for the last 50 years. They are based on a strikingly flawed and highly revisionist account.
Dobbs has rekindled our long and deep divisions over abortion rights. Underlying that debate are good-faith arguments on both sides of how to interpret the Constitution. Whatever may come from this decision, we need to build precedent on a historically and legally accurate foundation. While the Washington Post has decried “misinformation” and “disinformation,” it sometimes seems rather selective in how those terms are applied.