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The American Historical Association and the Organization of American Historians have issued a joint statement, joined by other historical groups, opposing a recent Supreme Court decision.
“In September 2021, the American Historical Association and the Organization of American Historians submitted an amicus curiae brief to the U.S. Supreme Court presenting the relevant history to the Dobbs v. Jackson Women’s Health Organization case. We are dismayed that the court declined to take seriously the historical claims of our brief. Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years. The opinion inadequately represents the history of the common law, the significance of quickening in state law and practice in the United States, and the 19th-century forces that turned early abortion into a crime,” the statement said.
It added, “Historians might note that the court’s majority opinion refers to ‘history’ 67 times, claiming that ‘an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.’ Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of ‘quickening,’ the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in U.S. ‘history and traditions’ at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.”
