Clarence Thomas Got the History of Abortion Very Wrong

June 25, 2022 Off By Manisha Krishnan

Despite being one of the most divisive issues of the modern political era, abortion was once freely available and openly advertised in the United States. 

Up until the late-19th century, newspapers published bulletins for the procedure and companies sold drugs to induce them. In fact, by one estimate, one in every five women ended pregnancies at the time, according to the Interdisciplinary Views on Abortion, a collection of academic essays. 

As part of the Supreme Court’s Friday decision to overturn Roe v. Wade and the nationwide right to abortion, however, Justice Clarence Thomas wrote in his concurring opinion that the medical procedure is “not deeply rooted in the Nation’s history and tradition.” That’s one of the standards used to determine if a right falls under the Fourteenth Amendment’s Due Process Clause. Roe v. Wade previously determined abortion did because of a woman’s right to privacy. 

“The Court finds the Fourteenth Amendment clearly does not protect the right to an abortion,” Thomas continued.

Thomas also wrote that common law, which much of the U.S. legal system is based on, criminalized abortion. That’s contested by scholars at best, and at worst, outright wrong.

“Through the late 19th Century in various states, it was legal until what they called ‘quickening,’ when one could feel the fetal movement,” said Melissa Haussman, a political science professor at Carleton University. 

She said Thomas’ assertion that abortion doesn’t have a deeply rooted history in the U.S. is “wrong” and that abortion was legal under common law, at least in some states. 

Even the Catholic Church accepted early abortions until 1869, CNN reported, quoting author Leslie Reagan, who wrote When Abortion Was a Crime. Then, in 1873, Congress passed the Comstock Act, named after anti-vice crusader and New Yorker Anthony Comstock, which banned the advertisement, distribution, and sale of “obscene” materials, including birth control. 

By 1880, all states had laws restricting abortions on the books, with some exceptions to save the life of a patient or for “therapeutic reasons,” according to Planned Parenthood. And by 1910, abortion was outright banned in every state—as Thomas noted—except when needed to save a life. 

“Until the latter part of the 20th Century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right,” Thomas wrote. “Indeed, abortion had long been a crime in every single state.” 

Wealthier white women with access to doctors continued to have abortions in the shadows though. Deaths tied to clandestine abortions began to rise, with 2,700 women dying in 1930, according to the Guttmacher Institute. By 1960 in New York City, abortions accounted for one in two childbirth-related deaths for non-white women, versus one in four for white women, the institute reported. 

The century of criminalization ended in 1973 with Roe v. Wade. 

Thomas’ view on abortion not being deeply rooted in U.S. history and thus, not protected under the Fourteenth Amendment’s Due Process Clause, has implications for other rights, too.

"For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, referencing cases that protect contraception, same-sex relationships, and same-sex marriage, respectively. 

In a statement Friday, President Joe Biden rebuked Thomas’ call to re-examine those rights. 

“Roe recognized the fundamental right to privacy that has served as a basis for so many more rights that we’ve come to take for granted,” he said. “Justice Thomas… explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception. This is an extremely dangerous path the court is now taking us on.” 

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