The Organization of American Historians has issued an important statement regarding Dobbs, the decision overturning Roe v. Wade:
In September 2021, the Organization of American Historians and the American Historical Association submitted an amicus curiae brief to the US 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 thirty 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 nineteenth-century forces that turned early abortion into a crime.
Historians might note that the Court’s majority opinion refers to “history” sixty-seven 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 The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization.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 US “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.
These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The Court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country. We expect that historians will continue to correct the Court’s misinterpretation about the history of legalized abortion in the US in their own research, teaching, and public speaking, while also addressing the multifaceted dilemmas presented by this decision.
Which correlates in my own notes regarding the history of abortion.
But this really clarifies the need, the legal requirement, that those portions of Dobbs dependent on this specious version of history must be retracted, and immediately. Information that masquerades as true facts, when it is, in fact, false, has been observed to impact other cases, as not only are the false facts cited, but additionally the relaxing of the strict requirements of accurate information means that other false information will be introduced, and accepted, into other cases.
This will foil the mission of proper law enforcement in the courts, not to mention the case for actual justice.
If these Justices recognize these errors mean the case needs reconsideration, and act on it by withdrawing the decision, all well and good.
But if the Justices who voted to overturn Roe plunge onwards, heedless of the damage they do to their own institution, as well as the nation, then they must, in all honor, resign, or be impeached and removed en masse. We cannot tolerate this corruption of the institution.
Truth is often buried deep, but is vital.
