Refuting the Myths of Abortion History

National Right to Life News, Jan, 2006

In a soon to be published book, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006), Villanova Law School Professor Joseph W. Dellapenna convincingly refutes revisionist pseudo-histories of pre-Roe v. Wade abortion law and practice.

At 1,300 pages, with 2,000 cases cited and 9,000 footnotes, one might conclude his is an academic exercise of limited interest to the public. One would be wrong.

Truth matters. The entire edifice of U.S. abortion law is constructed on lies and deceptionslies about when life begins, the scope of "privacy" in the Constitution, the meaning of the Ninth and Fourteenth Amendments, about applicable (but ignored) precedents, and, significantly, about the history of abortion law and practice.

The Supreme Court's rationale in Roe v. Wade for finding a right to abortion in the U.S. Constitution was grounded squarely on one of the earliest and most fraudulent versions of abortion "history," concocted by Cyril Means, Jr., general counsel for the National Association for the Repeal of Abortion Laws (NARAL).

Justice Harry Blackmun, Roe's author, devotes fully half of that opinion to a pseudo-history of abortion, relying heavily on two articles by Means, citing them seven times. Sarah Weddington, who represented "Jane Roe," arguing for a right to abortion, stated that "the Justices had copies of Means' articles on the bench with them during the oral arguments" (Dellapenna, 144). Weddington referred to Means' version of abortion history three times in her oral argument.

Without relying on Means' "radical revision of the history of abortion" (Dellapenna, 144) it is difficult to envision how the Court could have found any pretext for overturning the abortion laws of 50 states. Even if it had been accurate, Means' mis-story of abortion would not have remedied other constitutional flaws of Roe. But the historical rendition gave the Court a plausible opening, and gave the opinion a patina of legitimacy. Most legal scholars have had no trouble seeing Roe's constitutional flaws through the patina.

Only a handful, however, have questioned the "history" of abortion as repeated by Justice Blackmun. Professor Dellapenna did so in a 1979 article ("The History of Abortion: Technology, Morality, and Law," 40 U. Pittsburgh L. Rev., 359428). His and others' critiques generated little public attention, probably because historical analyses that contradict Roe's version of events offend the prevailing orthodoxies in academia and the media.

But Dellapenna's book comes at a fortuitous time. In the past year, prominent pro-choice legal analysts and columnists have openly criticized Roe v. Wade in mainstream media outlets. >TX They are not about to change their minds about the "right" to abortion, but are acknowledging the huge damage Roe has inflicted.

They fault the Court for usurping the role of state legislatures in crafting abortion law. They fault the extremism of U.S. abortion law that fails to recognize a life is at stake, and not simply "privacy." And they fault the corruption of the judicial nomination process where, for many senators, a litmus test of loyalty to Roe supplants all other criteria of judicial fitness. And moderate Democrats, after the party's 2004 election losses, are publicly questioning the wisdom of following the extreme agenda of the abortion lobby into electoral oblivion.

In Dispelling the Myths of Abortion History, Professor Dellapenna systematically demolishes the historical pillars supporting Roe v. Wade's claim of a right to privacy that encompasses abortion. In the space of a brief review, it's impossible to catalog more than a fraction of the myths he refutes. Some of the more important ones follow.

Myth: Abortion was commonly practiced from ancient times until the advent of statutory prohibitions in the 19th century.

Fact: Dellapenna absolutely demolishes this canard. Before the 19th century, the "traditional forms of abortion had been infanticide and abandonment," according to Irish feminist Mary Kenny (Dellapenna, 56). Why? No effective abortion techniques existed before the 19th century. In 1815, a British doctor wrote in a forensics text that abortions were tantamount to suicide (Dellapenna, 36). A list of abortifacient drugs found in Greek folk medicine illustrates this point well. It includes benign substances like anise, celery, chamomile, cinnamon, cumin, ginger, leeks, licorice, human milk, mint, mustard, parsley, and sage, as well as potentially harmful substances like raw eggs, goat dung, and rabbit innards (Dellapenna, 39).

Medieval recipes were also extremely lethal to women (Dellapenna, 45). An intrusion abortion with a primitive curette was first reported (and prosecuted) in England in 1732 (Dellapenna, 54). This type of procedure was at least as dangerous as injury and ingestion abortions for the first 200 years of use, since it was performed "blind" and without "analgesics, antiseptics, anesthetics, or antibiotics" (Dellapenna, 55).

Myth: It is "doubtful that abortion was ever firmly established as a common-law crime, even with respect to the destruction of a quick fetus" (Roe v. Wade, 410 U.S. 113, 136).

Fact: Means based this conclusion, repeated uncritically by Justice Blackmun, on a misreading of two 14th-century cases, one of which did not even involve abortion. The defendant in the second case was indicted for abortion, but not arraigned, almost certainly due to a lack of proof that the child's death resulted from abortion rather than miscarriage. If Means had looked beyond these inconclusive cases, he could have found dozens of prosecutions for injury abortions and "ingestive" abortions (involving oral consumption of supposedly abortifacient herbs, potions, or noxious substances) in both ecclesiastical and lay courts in England in the late 15th and 16th centuries (Dellapenna, 176183). Legal records by the end of the 16th century "indicate that both forms of abortion were capital felonies regardless of consent or (more typically) lack of consent by the woman undergoing the abortion attempt" (Dellapenna, 185).