Forty years after the Supreme Court's landmark decision in Roe v. Wade, prominent historians and lawyers continue to rely on a narrative history that is based on two demonstrably false premises: (1) abortion was a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children. In the 1960s and 1970s, lawyers trying to build a case against century-old state abortion statutes trumpeted these two claims, all the while knowing they were false.Fake history is one of the elements of the Roe decision that make it so astonishingly indefensible. As Dyer writes, Roe's author, Justice Harry Blackmun, relied almost exclusively on two articles by Cyril Means, a lawyer for the National Association for the Repeal of Abortion Laws (NARAL), to claim that 19th century laws against abortion weren't really about protecting the unborn, but were about protecting pregnant women in dangerous circumstances that no longer apply in today's world.
The point of these historical claims, as Ramesh Ponnuru has noted, was to portray "anti-abortion laws as an aberration from an American tradition" and "Roe as the restoration of that tradition." But in reality abortion never amounted to anything approaching a protected liberty in the common law (even in situations where abortion was not considered an indictable offense), and the primary rationale given by those who advocated strict state abortion laws in the 19th century was unequivocally the protection of the lives of the unborn. Even so, old myths die hard, and many commentators continue to repeat or repackage these two claims.
But clear historical evidence shows that Means's claims are false. There can be no real debate about that, and Blackmun should have known better. Roe is left with the absurd contention that the 14th Amendment contains a right (to abortion) that was blatantly repudiated by the very people who ratified the amendment—when they, at about the same time, passed numerous state laws banning abortion primarily for the sake of protecting unborn children.
Whoever said history doesn't matter? "This fraudulent history ... would be far less tragic," Dyer concludes, "if it did not involve matters of life and death."