Abortion does funny things to the mind. Not necessarily the procedure itself: expert opinion on its mental effects is, at least according to Dr. Koop, inconclusive. I am referring to abortion polemics, specifically to the political, judicial, academic, and popular debate over its legality. It has proven most corrosive of intellectual clarity and integrity.
Roe itself is one cause: it was an intellectual nightmare. Pro-choice constitutional scholar John Ely said it was not constitutional law at all and showed no evidence that it wanted to be. Determined legal scholars have nevertheless installed it as a linchpin of constitutional theory: If a theory of constitutional lawmaking does not yield the result in Roe, the theory is no good. Laurence Tribe is just the most notorious exhibitor of that tendency.
But it is not only judges and legal scholars whose work has exhibited the baneful effects of abortion politics. In the 1989 Webster case, 281 American historians submitted a brief supporting Roe v. Wade. The brief made two central claims: (1) abortion was not illegal at common law, and (2) the moral value attached to the fetus became a central issue in American culture and law only in the late twentieth century. Both claims are false. Key signatories knew, or had ample reason to know, that they were false. Worse, one of the principal signatories, himself a key authority cited in the brief, has in his scholarly work reached and published conclusions that contradict the brief’s conclusions. Worst of all, when the contradiction was brought to his attention, this scholar actually defended the duplicity as a public service.
Misrepresentation is not the only flaw in the scholars’ brief. On the supposed legality of abortion at common law it is not scholarly at all. Cleaving to a hospitable conclusion most tenuously supported, it ignores contrary, competent scholarly evidence. Coke, followed by Hawkins, Blackstone, East, Russell, and Hale have all stood by the contrary view that abortion was illegal at common law. Cyril Means, whose work Justice Harry Blackmun featured in Roe, argued against Coke’s exposition of the law, but grossly overworked his evidence. In any event. Coke’s opinion prevailed in the law.
A greater failing is apparent from the brief’s own common law, the authorities it does cite. The failings here are inadequate argument, mishandling of evidence, and sloppy, if not purposely misleading, expression. For example, the brief states that as “the Court demonstrated in Roe v. Wade, abortion was not illegal at common law.” This suggests that abortion was always lawful at common law and that it was lawful throughout pregnancy. James Mohr’s Abortion in America is cited as authority. But in that work, Mohr, a professor at the University of Maryland-Baltimore County, plainly acknowledges that abortions were illegal after a pregnancy was confirmed by perceived fetal movement.
The brief’s misrepresentations do not stop there. “Through the nineteenth century,” it goes on, “American common law decisions uniformly reaffirmed that women committed no offense in seeking abortions.” This claim, marshaled to support the unqualified claim in the preceding sentence, falsely implies that a consensual abortion gave rise to no criminal liability at all. At a public address in January, 1990, which I attended, Mohr repeated this irrelevant half-truth. Again, he offered it to support liberalized abortion laws. He said that the American legal tradition has shown “tolerance” for the woman having an abortion. Now it is true that most jurisdictions did not prosecute women who sought abortions, and instead prosecuted the abortionists who performed them. Still, over a third of American states in the nineteenth century criminalized a woman’s own involvement in addition to that of the abortionists. No matter. The essential point is that the evidence shows that “tolerance” for the woman in no way meant that abortion was legal, much less a constitutional right.
Now let us turn to the claim that concern for the life of the fetus became a motivation for opposition to abortion only in the late twentieth century. Abundant scholarly evidence, notably that published by John Keown of the University of Leicester, belies that account from British experience. I do not think that anyone really doubts that American legislators who forbade abortion by statute in the nineteenth century were any less concerned to protect the fetus than were their British counterparts. Professor Mohr argues that the self-interested motives of medical professionals drove the campaign for statutory prohibitions of abortion, but even he admits that a primary reason for their campaign was their belief that abortion was immoral. Indeed, he points out that they defended the value of human life from fertilization as a near absolute and were “fierce opponents” of any attack on it.
It is not merely that easily available evidence was not reported by the brief writers. As noted, the brief actually contradicts the scholarly conclusions of Professor Mohr, one of its own signatories. When reached by telephone, Mohr conceded that some of what the brief said and implied about the common law and the purpose of the nineteenth-century statutes was inconsistent with what he had maintained in his book. He added that where inconsistencies exist he stood by the book rather than the brief, and he confessed that he was uncomfortable with the way his work was cited for some of the brief’s claims. But he went on to express the view that the brief was a “political document,” the work of a “citizen” not a “scholar.”
Mohr’s differentiation of roles, itself unpersuasive, should not obscure”and does not justify”the misrepresentation in the brief of what he understands to be the historical truth concerning abortion. No one”lawyer, scholar, or citizen”is privileged to behave that way in judicial proceedings. To take a cognate situation, were Mohr called as an expert witness (i.e., to testify orally) at a trial of precisely the issues raised in Webster, he would with such behavior be liable to indictment for perjury. Granted, he was not sworn to tell the truth before signing the brief, but anyone who says (as Mohr effectively does) that because of a desire to help one party win the suit telling the truth was no longer obligatory, could not in good conscience take the oath. In any event, no court would let him testify. He would not be permitted to give evidence precisely because his “evidence,” due to bias, is worthless.
Mohr defended his action both during our conversation and in his recent speech by stressing the different obligations to truth-telling of the “scholar” and the “citizen.” He supported the distinction partly by remarking (without giving evidence) that a Reagan administration brief in the Webster case had misused his work. He apparently concluded that the one distortion justified the other. The option of not multiplying the abuses, of simply stating the truth, appears not to have occurred to him.
In any case, Mohr’s distinction does not even describe the behavior it purports to justify. Mohr was not acting as a simple “citizen” in Webster. The brief’s scholarly credentials were proclaimed as its unique contribution to the debate: “Never before have so many professional historians sought to address this Honorable Court in this way.” A document whose professed purpose is to address and validate historical analyses cannot take refuge in being a “political” document. It represented matters of historical fact and put the full weight of its signatories’ professional reputations behind those representations. If the brief was never intended as anything more than historical half-truths and artful rhetoric laced with the aroma of antiquity, submitting it as anything more than the advocacy of 281 pro-choice individuals who happen all to belong to the same profession amounted to purposeful deceit.
Mohr is perhaps this country’s foremost expert on the history of abortion law. His willingness to sign the brief (highlighted in the brief itself) undoubtedly persuaded many other signatories of its integrity. But I very much doubt that Mohr alone among the signatories knew that crucial claims in the brief were dubious. Some others who signed are also experts. They, too, evidently cared more to preserve the legal right of women to elect abortion than for the truth about the history of abortion law. Mohr seemed persuaded at his recent speech that the truth was already a casualty of abortion polemics, that lawmaking on the subject was already intellectually bankrupt. Perhaps so, but from that observation nothing follows. Would Mohr agree that given his offense, I would be justified in lying”here, in this article”about the historians’ brief?
Nor can the historians’ conduct be explained away as rooted in prevalent deconstructionist redefinitions of the purpose of thought. Even one who proposes not to discover truth but to break down intellectual structures of domination would agree that, regardless of ideological purpose, one cannot simultaneously maintain the validity of contradictory propositions. No, it is easy to see from Mohr’s explanation of his actions what is going on here. When it comes to politics, some scholars perceive a truncated obligation to the truth, if they perceive any obligation at all. At least Mohr maintains in his scholarly work the traditional devotion to objective inquiry. I fear that in large segments of the academy even that barricade has been breached.
Gerard V. Bradley teaches in the College of Law at the University of Illinois, Champaign.