From Bracton to 1868, the legal history Dobbs put back on the record

Most Americans think the biggest Supreme Court decision of our era was a decision about morals. It was not, at its core. It was a decision about a library. Did the lawyers and legislators of the common law tradition, and of the Americans who wrote the Fourteenth Amendment, treat abortion as a crime or as an ordinary liberty? That is a question you answer with footnotes, and the footnotes are what we will read together today.

I want you to see the documents, because the case was argued in the press as if it were a mood. It is a stack of old books and old statutes, and whatever you conclude, you should conclude it with the stack in front of you.

What Dobbs actually turned on

Dobbs v. Jackson Women's Health Organization was decided on June 24, 2022. The Court upheld Mississippi's law restricting abortion after fifteen weeks and, in doing so, overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Justice Alito wrote the opinion of the Court.

The structure of the opinion matters. The Court did not begin by asking whether abortion is good or bad. It began with a constitutional question: does the Fourteenth Amendment's guarantee that no State shall "deprive any person of life, liberty, or property, without due process of law" protect a right to abortion? The text of the Constitution never mentions abortion. So the Court asked whether such a right is among the unenumerated liberties that the Due Process Clause has been held to protect.

To answer that, the Court used a test it had set out in Washington v. Glucksberg in 1997. An unenumerated right is protected only if it is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." That is the test we will return to. It makes the history of abortion law the decisive evidence. If abortion was treated as a protected liberty when the Fourteenth Amendment was adopted in 1868, the right has roots. If it was treated as a crime, it does not.

So everything depends on the record. Here it is.

Bracton, the thirteenth century

Henry de Bracton was a judge in the reign of Henry III, and his treatise on the laws and customs of England, written in the middle of the thirteenth century, is the earliest systematic account of the common law. Justice Alito's opinion cites Bracton for the proposition that one who caused an abortion of a child who was already formed or animated was treated as guilty of homicide.

Notice the qualifier. Bracton's law distinguished a child who was formed or quickened from one who was not. That distinction, between the early weeks and the later ones, runs through the whole common law tradition, and it is the single place where the two sides of the modern argument fight hardest. Hold on to it.

The point of citing Bracton is not that medieval English law was a model for us. It is that the common law, from the beginning, did not treat the unborn child as legally nothing. The earliest source says that causing the death of a child in the womb, at least after a certain stage, was a grave offense.

Coke and Hale, the seventeenth century

Sir Edward Coke, in the seventeenth century, wrote the Institutes of the Laws of England, the text from which generations of English and American lawyers learned the criminal law. Coke's account, as Alito quotes it, was that when a quick child died in the womb it was a "great misprision," a serious crime short of murder, and that if the child was born alive and then died of the injury, it was murder.

Sir Matthew Hale, Chief Justice of the King's Bench in the same century, wrote Pleas of the Crown, and he repeated the rule in similar terms. Alito's opinion treats Coke and Hale as carrying the thirteenth-century rule forward: the destruction of the quickened child was a serious crime, and the born-alive rule shielded the child who survived long enough to draw breath.

A careful reader should note what these authorities do and do not say. They say abortion after quickening was a crime. They are less clear, and scholars have argued about it, on whether and how the law treated procuring an abortion before quickening. Dobbs says the common law prohibited abortion at least after quickening, and that nothing in these authorities recognized a liberty to abort earlier. Roe said the opposite. We will come to that.

Blackstone, the eighteenth century

William Blackstone's Commentaries on the Laws of England, published from 1765, was the book the American Founders actually read. For colonial and early American lawyers it was the law. Blackstone wrote that life "begins in contemplation of law as soon as an infant is able to stir in the mother's womb," and that to kill such a child was a serious offense. He noted that by the ancient law the killing of a quick child had been homicide or manslaughter, and that in his own day it was at least a heinous misdemeanor.

Read that sentence again: "as soon as an infant is able to stir in the mother's womb." That is quickening, the point at which a woman first feels the child move. In the eighteenth century, before ultrasound, quickening was the first reliable sign of pregnancy, and the law used it. Blackstone was writing for lawyers who would shortly be drafting the first American state codes.

Here is the fair point on Roe's side. Blackstone's emphasis on quickening was cited by Justice Blackmun to argue that the law had treated early abortion as permitted. Alito's answer is that the common-law rules were about what could be proved and what grade of crime applied, and that nothing in Blackstone declares early abortion a lawful right. A crime of a lesser grade, or a crime hard to prove, is still a crime. The law did not say a woman had a liberty to do it.

The American statutes

After independence, the common law came to the American states, and then the statutes started. According to the Dobbs opinion, the first American statute to address abortion directly was Connecticut's in 1821, which made it a crime to use poison to cause a quickened child's abortion. In the following decades states went further. By the middle of the century the quickening line was disappearing from the statutes, in part because medical knowledge was improving, and legislatures began to criminalize abortion at every stage of pregnancy.

Here is the number that carries the opinion. By 1868, the year the Fourteenth Amendment was ratified, three-quarters of the States, 28 of 37, had enacted statutes making abortion a crime even at the earliest stage of pregnancy. Do the arithmetic yourself: 28 divided by 37 is a little over 75 percent. The Court attached appendices to the opinion listing the statutes then in force, so a reader can check the claim state by state rather than trust the Court's summary.

The Court said that this record showed an unbroken tradition of prohibiting abortion on pain of criminal punishment, one that persisted from the earliest days of the common law until 1973. From the early twentieth century until the day Roe was handed down, Alito wrote, every single state had such a law on its books. And even in the years just before Roe, 30 states still prohibited abortion at all stages except to save the life of the mother, according to the opinion. Roe itself did not arrive on a clean field of liberal practice. It overturned the criminal laws of most of the country.

If you want to see what the 1868 states looked like for yourself, you do not need to take my word. Go to your own state's code and read the history notes on its abortion statutes. Most states can trace their current provisions back to a nineteenth-century enactment.

Roe's contrary history

Justice Blackmun's opinion in Roe also contained a history, and the Dobbs Court did not ignore it. It took it apart.

Blackmun's account began with the ancient world. He discussed Greek and Roman attitudes and the Hippocratic Oath. He argued that at common law abortion before quickening was not an indictable offense, and that the English statutory regime of the nineteenth century was a departure. He argued that the American laws prohibiting abortion were of nineteenth-century vintage, and that they were enacted largely to protect women from dangerous procedures. On that reading, the restrictive state laws were the novelty, and the freedom to end a pregnancy early had been the older, more common-law position.

Alito's reply in Dobbs was that this account was not accurate. He said Roe's discussion of the common law relied on a misreading of the authorities, that its reliance on the Hippocratic Oath was misplaced, and that the nineteenth-century statutes showed concern for the unborn child, not only for the safety of the mother. In particular, he pointed to the fact that the statutes continued to prohibit abortion whether or not the procedure was dangerous, and that they covered the whole of pregnancy.

I will not pretend that either account is free of scholarly dispute. Historians have written long articles on the quickening distinction. What a conservative can fairly say is that the Court's majority has the better of the argument on the question that matters under the Glucksberg test: whether a right to abortion was deeply rooted. A tradition of criminal prohibition in a large majority of states, at the very moment the Fourteenth Amendment was adopted, is a hard thing to square with a liberty so fundamental that the amendment's authors must have meant to protect it.

The dissent's reply

The three dissenting justices, Breyer, Sotomayor and Kagan, did not accept that. I will state their strongest points as fairly as I can, because they are serious.

First, they said the majority's method freezes the Constitution in the practices of 1868. The Fourteenth Amendment's guarantee of liberty is written in general terms, they argued, and the framers of general terms intended their principles to be applied to new circumstances. The men who ratified the amendment, they pointed out, did not think that women could vote, and could not have imagined women as full participants in public life. A history written entirely by men who excluded women from the political process, the dissent argued, is a poor guide to what liberty means for women now.

Second, they argued that the Court had in earlier cases protected rights such as the freedom to marry across racial lines, and that those rights too lacked a deep basis in 1868. If the Glucksberg method were applied rigidly, they said, it would put the whole line of precedents at risk.

Third, they argued that stare decisis, the respect due to precedent, counseled against overruling a decision that had stood for nearly fifty years and on which women had relied.

The majority answered each. On the first, it said the Court had not frozen the Constitution, but had asked a narrower question, whether a specific unenumerated right was part of the tradition the Due Process Clause protects. On the second, it said that other rights, such as marriage, did not involve what Roe and Casey had acknowledged was a different thing, the potential life of an unborn child, so the analysis was distinct. On the third, it said Roe was egregiously wrong from the start, that its reasoning was exceptionally weak, and that its decision had distorted other areas of law.

Those are the two sides' best arguments. Notice that the dispute is not really about what happened in 1868. The dissent itself conceded that in 1868 there was no nationwide right to end a pregnancy and no thought that the Fourteenth Amendment provided one. The dispute is about whether the history of 1868 should decide the matter. That is a question about method, and it is where the real debate lives.

The method comes from Glucksberg

It would be a mistake to see Dobbs as an invention of the 2022 Court. The Glucksberg test is older. In 1997 the Court unanimously held that there is no constitutional right to assisted suicide, and Chief Justice Rehnquist's opinion used history and tradition to say so, noting that nearly every state had long forbidden assisting a suicide. Washington v. Glucksberg and the 9-0 refusal to find a right to assisted suicide tells that case in full.

Rehnquist wrote that the Court has always been reluctant to expand the concept of substantive due process, "because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." That is the instinct behind the method. When the text is silent, the judge must find something outside his own preferences to hold on to, and history is that something. A judge who may read into "liberty" whatever the age finds most appealing is a legislator in disguise.

Conservatives should be honest here about a limit. The history-and-tradition method can protect rights as well as deny them, and it has been used by the Court in cases involving the family and religion. And it is not a mechanical device; two honest scholars can read the same sources differently. But it has the great virtue of being checkable. You can read the statutes. You can find the treatises. The judge cannot simply announce a feeling.

What it means for the debate now

Notice what the history does not decide. It does not decide whether abortion should be legal today. It decides who gets to answer that question. If the Constitution does not protect a right to abortion, then the citizens of each state, acting through their legislatures and their constitutions, may regulate it as they choose, within the limits the rest of the Constitution allows. That is the arrangement Dobbs restored.

You may wish your state to be more protective or less protective. That is the proper subject of debate, and it is a debate for the voters, who can now see exactly where their representatives stand. The historical record in the opinion is a reminder that the question was always supposed to be political. It is also a reminder of how much of the law is built from patient, unglamorous work in the archive.

For how the question looks as a matter of federal and state power afterward, read After Dobbs, should pro-lifers seek a national law or win state by state?, and for the full run of rulings that led up to this one see Fifty years from Roe to Dobbs in twenty dated turns of the law.

The case in brief

1. Dobbs turned on a historical question under the Glucksberg test: whether a right to abortion is deeply rooted in the Nation's history and tradition.
2. The authorities Justice Alito cited, Bracton, Coke, Hale and Blackstone, treated destroying a child in the womb, at least after quickening, as a serious crime.
3. By 1868, 28 of 37 states had made abortion a crime at every stage of pregnancy, and the opinion's appendices list the statutes so anyone can check.
4. Roe's contrary history, built on the quickening distinction and the ancient world, was rejected by the majority, while the dissent answered not on the facts but on method, arguing that the history of 1868 should not decide.
5. The result is that the question of abortion's legality returned to the voters of each state, where a free people can argue and decide it.

What you can do: look up your own state's abortion statute on its legislature's website, read the history note at the bottom, and see how far back the law's roots go.