Alito's Leaked Abortion Opinion Misunderstands Unenumerated Rights

The Supreme Court justice is wrong when he says abortion rights aren't deeply rooted in American history.

A leaked draft of a majority opinion published in May indicated that the Supreme Court would soon overturn two key precedents securing a woman's constitutional right to terminate a pregnancy. Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization says Roe v. Wade, the 1973 decision that first established a right to abortion, was "egregiously wrong from the start." He adds that Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding," had "perpetuated its errors."

Noting that "the Constitution makes no reference to abortion," Alito argues that "no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment." Although "that provision has been held to guarantee some rights that are not mentioned in the Constitution," he says, "any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito concludes that "the right to an abortion does not fall within this category."

That analysis falls short in at least two crucial ways.

First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is "deeply rooted" in American history and tradition.

Second, Alito's draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. "When the United States was founded and for many subsequent decades, Americans relied on the English common law," explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. "The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called 'quickening,' which could occur as late as the 25th week of pregnancy."

A survey of founding-era legal authorities confirms this view. William Blackstone's widely read Commentaries on the Laws of England, first published in 1765, noted that life "begins in contemplation of law as soon as an infant is able to stir in the mother's womb." Under the common law, Blackstone explained, legal penalties for abortion applied only "if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb." That means abortion was legal in the early stages of pregnancy under the common law.

Blackstone's writings had an important influence on America's founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania's convention, repeated Blackstone's gloss. "In the contemplation of law," Wilson wrote, "life begins when the infant is first able to stir in the womb."

At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states' regulatory powers. That original understanding contradicts Alito's assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.