Originalists Seriously Misconstrue the Constitution's Silences on Abortion

It is a curious thing that the U.S. Supreme Court, which is now mostly composed of “originalists” — or those who say they wish to interpret the Constitution in terms of what its drafters originally wrote and intended — is poised to overturn Roe v. Wade, the 1973 decision that decriminalized abortion. According to a leaked draft of Supreme Court Justice Samuel A. Alito Jr.’s opinion in the Dobbs v. Jackson Women’s Health Organization case, the court will allow Mississippi to ban abortion after 15 weeks, opening the floodgates for similar legislation.

Alito rains down fury on Roe, claiming in high originalist dudgeon that it found a right to privacy over health-care decisions that was entirely made up, unenumerated by the Constitution. If the Constitution was silent on abortion, he argues, that was because it conferred no right to have one.

But what if the Constitution was silent on abortion because its drafters believed that it — like virtually all medical procedures — should remain unregulated as a matter of law? How, in other words, do we interpret that historical silence?

The law and courts were indeed largely quiet on the subject of abortion when the Constitution was written in 1787. But one of its drafters left a record of what he intended by that silence: A historians’ amicus brief in Dobbs points out that, following the common law, he believed abortion was not the business of courts or lawmakers. The procedure, usually accomplished with herbs, was widely described by 18th-century authorities on English common law as perfectly all right before quickening, or before the pregnant person felt movement in the womb, which can happen as late as 25 weeks.

James Wilson, who wrote the Constitution’s preamble, weighed in on the subject of abortion law in a 1790 lecture. Quoting William Blackstone, a preeminent authority on English common law, Wilson told his audience: “In the contemplation of law, life begins when the infant is first able to stir in the womb.” Abortion, in Wilson’s view, could not be regulated by law before that time.

In the early republic, Blackstone’s interpretation of English common law with respect to abortion was repeatedly affirmed by U.S. courts. For example, in 1845 the Massachusetts Supreme Judicial Court found that, “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.”