Fact Check: Law Professor Claims ‘Originalist’ Argument for Keeping Right to Abortion

CLAIM: Eliminating a right to abortion is not consistent with the Constitution’s original meaning, wrote Aaron Tang, professor of law at the University of California at Davis, in a recent op-ed at the Washington Post.

VERDICT: False, according to scholars John Finnis, professor emeritus of Law and Legal Philosophy at Oxford University, and Robert P. George, McCormick professor of jurisprudence at Princeton University.

The U.S. Supreme Court will hear opening arguments Wednesday in Dobbs v. Jackson Women’s Health Organization, a case that poses the most significant challenge in decades to the right to abortion created by the Court in its 1973 Roe v. Wade decision.

In Dobbs, which involves a challenge to Mississippi’s Gestational Age Act — a measure that would ban abortion after 15 weeks of pregnancy — the Court will decide if state laws banning most abortions are unconstitutional.

In a Newsweek op-ed earlier this month, Finnis and George responded to Tang’s argument that, in order to be “faithful to the Constitution’s original meaning,” the Supreme Court’s conservative justices should not overturn Roe because Sir William Blackstone, an 18^th-century jurist whom Tang describes as a “’preeminent’ originalist authority,” wrote “that abortion is unlawful only after a ‘woman is quick with child’ because that is when life ‘begins in contemplation of law.'”

Tang claimed the Founders understood abortion to be legal before a “woman is quick with child,” a reference to “quickening,” the first perceptible movement of the unborn child that typically occurs at 15-16 weeks’ gestation. That understanding, Tang continued, was based upon Blackstone’s writing that life “begins in contemplation of law” after a “woman is quick with child.”

Finnis and George, however, pointed out Tang’s op-ed at the Post followed their 72-page paper highlighting “more than 50 serious historical errors” in Tang’s previous “middle ground” academic article upon which his op-ed was based.

They noted:

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.

“The argument that Blackstone establishes a common-law right to pre-quickening abortion is wrong,” Finnis and George wrote. “So is the claim that—at the time they ratified the 14th Amendment establishing ‘equal protection of the laws’ for all persons—most states only opposed abortion after quickening, if at all.”

Tang observed the pro-life argument that, when the 14^th Amendment, through which the Supreme Court created the right to abortion, was ratified in 1868, 27 of the then-37 states banned abortion entirely.

“This claim is wrong, grounded on a series of historical errors,” he stated, arguing that originalists should be able to find “a middle ground” between Roe’s viability standard at 24 weeks and a prohibition on abortion from conception.

Finnis and George observed, nevertheless:

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 legal scholars explained the significance of the details of the “quickening” argument in that “they help reveal what states understood ‘person’ to mean when they ratified the 14^thAmendment.”

“When the 14th Amendment said ‘nor shall any state deny to any person … the equal protection of the laws,’ the word ‘person’ had a settled public meaning for its drafters and ratifiers,” they noted. “That meaning certainly included, among ‘natural persons,’ any child living in the womb—and among ‘artificial persons,’ corporations.”

Finnis and George summarized the premise of their own amicus brief in Dobbs:

The Supreme Court, after nearly 20 years, accepted that corporations are entitled to equal protection under the 14th Amendment; it now should accept that Roe was wrong to hold that unborn children are not entitled to the same.

Citing the importance of Blackstone’s writings, Finnis and George, however, crushed Tang’s claim the revered jurist “wrote that abortion is unlawful only after a ‘woman is quick with child’”:

The partly quoted sentence from Blackstone says something very different in context: that under the old common law, “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.” Here Blackstone says nothing whatsoever about abortion being lawful before a woman is “quick with child.”

The legal scholars continued that Blackstone identified abortion, at any time during pregnancy, as a form of felony that could draw a felony murder conviction.

In one example, they noted that Blackstone, citing 17^th-century English scholar chief justice Matthew Hale, said, “unequivocally that abortion measures taken at any stage of pregnancy are always ‘unlawful,’ even though early abortions are not also indictable (i.e., subject to criminal penalties) unless the abortion drugs, pressures or instruments happen to kill the mother or … result in the child dying after birth.”

“So any talk of a right to abortion at the Founding, and of pre-quickening abortions being permissible until the reforming state statutes of 1829-1883, is fantasy,” Finnis and George concluded.

The case is Dobbs v. Jackson Women’s Health Organization, No. 19-1392 in the Supreme Court of the United States.