Dispelling the Myths of Abortion History
by Joseph W. Dellapenna
Carolina Academic Press, 1,300 pages, $95
History has not been kind to Justice Harry Blackmun's opinion for the Supreme Court in Roe v. Wade, and for good reason. It studiously avoided rudimentary facts of human biology and physiology that a reasonably competent high school junior could recite from memory; it jettisoned without so much as a sigh moral and legal customs that had sought to protect unborn children for the better part of two millennia; and, in utter disregard of constitutional text and tradition, it conjured a right to abortion out of the air and imposed it on an entire nation. Taken all in all, and putting the most generous face on it, Blackmun's magnum opus is a singular jurisprudential embarrassment. As was said of the Dred Scott decision, Roe was worse than a crime; it was folly.
How the Court worked itself into this jurisprudential mess is set forth in exquisite detail by Joseph W. Dellapenna's Dispelling the Myths of Abortion History. Dellapenna, who teaches at Villanova Law School and whose primary expertise lies in environmental and international law, began his inquiries into the history of abortion more than thirty years ago and has published numerous law-review articles touching on various aspects of abortion law in the intervening decades. Despite his surname and the fact that he teaches at a Catholic law school, Dellapenna is neither a Catholic nor a pro-life activist. He describes himself as “a lapsed Unitarian” who supports “unlimited choice early in pregnancy” and “carefully tailored” restrictions thereafter. His conclusions, which shed new light on the abortion controversy and should make proponents of abortion very uncomfortable, thus come from a fresh, unexpected, and philosophically detached perspective.
Let it be said at once that Dellapenna's patient labors have produced a masterpiece of scholarship that may justly take its place as the definitive treatise on abortion in Anglo-American law. Indeed, in its thoroughness, attention to small detail as well as large theme, and painstaking efforts to do justice to all sides, there is nothing remotely close to it.
Dispelling the Myths of Abortion History is simultaneously a learned disquisition on the development of abortion law, a masterful history of applicable medical procedures, a compelling political sociology of the abortion-reform movement, and a devastating critique of the manifold factual errors, willful distortions, and sophistry indulged by advocates, legislatures, and courts in the effort to justify abortion. At nearly 1,300 pages, Dellapenna's treatise will threaten to bend all but the sturdiest coffee tables. It nevertheless manages to be a fascinating read—as close to a page-turner as a work of this kind can possibly be.
These are no small accomplishments. Almost every aspect of the subject has been fairly beaten to death in thousands of books, articles, regulations, briefs, and legal cases over the past four decades. If any important part of this vast literature has escaped the author's attention, one would be hard-pressed to identify what it might be. His 8,431 footnotes testify to Dellapenna's exhaustive scholarship. There you will find references to such diverse material as ancient medical and legal treatises, observations about women and marriage from medieval and early modern original sources, discussions of antifertility customs and medicines in Asia, and countless annotations on Anglo-American statutes and case law.
But this fascinating elucidation of otherwise obscure facts never diverts Dellapenna from his main argument, which demonstrates that much of the current liberal orthodoxy on abortion is a philosophical and historical house of cards. On Dellapenna's reading, liberalization of abortion resulted from the confluence of three trends: the gradual economic and social independence of women and their concomitant sense of self-empowerment; developments in medical technology that made abortion less dangerous to the pregnant woman; and the abandonment of legal safeguards that had for centuries protected the unborn child against unjustified assault.
Each of these developments contributed significantly to the abrupt reversal of well-settled rules that occurred in Anglo-American law forty-odd years ago. Until the late 1960s, it was generally held that abortion was a grievous offense against both law and morals—a view so widely accepted that it was scarcely necessary for legal commentators to take note of it. Like the air we breathe, it was assumed to be an unquestioned predicate of civilized life.
Within a few years, however, this well-settled consensus got turned on its head in numerous briefs and
law-review articles written by abortion-reform advocates. The most influential of these were written by Cyril Means Jr., a New York law professor who doubled as general counsel for the National Association for the Repeal of Abortion Laws.
Means claimed that abortion had not, in fact, been a crime in England or America at the time of the Constitution's adoption and that, when abortion was criminalized in the nineteenth century, the purpose was to protect pregnant women rather than unborn children. It followed, Means argued, that abortion was a common-law liberty at the time of the Constitution's adoption and that the legal interests of the child, such as they were, were decidedly subordinate to those of the pregnant woman. As a result, the subsequent restrictions on abortion had been enacted in derogation of vested rights recognized by the original Constitution and implicitly reaffirmed by the Fourteenth Amendment in 1868.
Means' history, as well as subsequent glosses along the same line by other hired guns, has been discredited by scholars such as John Keown. The Means thesis continues to enjoy a remarkable shelf life among students of the subject who ought to know better, including judges who have every reason to question its premises. Whatever else it may do, Dispelling the Myths of Abortion History casts Means and his fellow travelers into the scholarly dustbin. Indeed, by the time Dellapenna has completed his detailed parsing of applicable common-law and statutory history, one wonders how the Means thesis came to be so accepted to begin with.
Ultimate responsibility must be laid at the door of the Supreme Court, which early on swallowed the reformers' tendentious history. The greater part of Justice Blackmun's Roe opinion is devoted to little else. Means' articles are the only authority he cites for his principal argument, and he cites them no fewer than seven times.
If this were merely a matter of offhand citation to recondite questions of minor importance, one might dismiss Blackmun's footnotes as so much harmless, if inaccurate, window dressing. But on Dellapenna's showing—and it is a compelling argument—acceptance of the Means thesis was critical to the Court's radical turn in Roe. Armed with a false understanding of the law's development, the majority was able to pretend (both to itself and the world at large) that Roe merely articulated rights that had already been acknowledged in principle. Although the Court has distanced itself significantly from other parts of Blackmun's argument, it has never questioned the counterfeit history that was so essential to his rationale. Pro-choice justices, to be sure, have had little incentive to do so, but, despite abundant openings in litigation since 1973, anti-Roe justices have been unaccountably silent on the subject as well.
Other fascinating material in this remarkable book includes a sharp critique of Justice Oliver Wendell Holmes Jr., the most influential figure in modern American law, and a detailed evisceration of the justices' almost comical intellectual gyrations in the Casey decision.
Little about the subject of abortion escapes Professor Dellapenna's gimlet-eyed notice. His meticulous attention to telling details, however, seldom crowds in on his main text, where his mastery of the material allows him to swim gracefully above the otherwise diverting specifics. He brings to this otherwise well-worn subject fresh insight and a comfortable familiarity with Anglo-American legal history that other scholars can only hope to emulate.
A treatise, of course, is not meant to be read from cover to cover, and for that reason its utility is directly proportional to the accessibility of its encyclopedic contents. Carolina Academic Press is to be congratulated for appending extensive case and subject indices that permit the reader to navigate and cross-reference the material with ease.
While the book will be of primary interest to professional students of the subject, Dellapenna knows how to tell a tale that will attract other readers as well. Despite its length (and the repetition that a work of this length necessarily entails), Dispelling the Myths of Abortion History moves from beginning to middle to end with dreadnought determination, plowing through layer after layer of earlier encrustations deposited by tendentious advocates whose ideological zeal has exceeded their love of truth. The subject will never be the same again, and for that we owe Joseph W. Dellapenna an enormous debt of gratitude.
Michael M. Uhlmann teaches American law and politics at Claremont Graduate University.