Sir William Blackstone, the most revered judicial authority in the 18th century, maintained that life “begins in contemplation of law as soon as the fetus is able to stir in the mother’s womb.”

Justice Samuel Alito states that the Constitution is silent with regard to a right to an abortion, but in a 1790 lecture, James Wilson, author of the Preamble of the Constitution and Supreme Court Justice, agreed with Blackstone’s view on abortion. With English common law in place, Wilson, presumably, saw no need for constitutional protection.

As professor Laura Briggs at University of Massachusetts Amherst states: “The Constitution’s silence on abortion spoke loudly for its original authors. They believed that no law or court should criminalize abortion in the early months of pregnancy.”

Alito is an “originalist,” a legal theory that requires that judges adhere to the views current at the time of founding of the nation. Alito mentions Blackstone briefly, but instead he alleges that there was wide-spread banning of abortion a century later, thus, conveniently, abandoning the view of the founders.

Alito covers up the fact that the quickening criterion was recognized by courts all over the nation until 1909. In 1845 the Massachusetts Supreme Judicial Court found that, “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.”

In 1849, New Jersey’s Supreme Court found that “to cause or procure abortion before the child is quick, is not a criminal offence at common law.” In 1857, the Alabama Supreme Court ruled that abortion was “not punishable by law” unless the mother was “quick with child.” In 1909, attorneys in a case before Oregon’s Supreme Court argued that “abortion is not a crime” unless it results in the death of “a quick fetus.”

By the late 19th century, however, 16 states had criminalized abortion at any stage of pregnancy, but it is important to note what the real reasons were. Struggling for credibility and business, the newly formed American Medical Association wanted to displace midwives as the primary providers of reproductive care.

There is no indication that doctors at that time professed any arguments to replace the quickening criterion. Furthermore, it is clear that they were not able to provide any better care than highly skilled midwives.

A historian at bit.ly/3lfu4rr states: “In their zeal to use instruments and other maneuvers to speed up the birth process, physicians often caused much damage to women’s reproductive organs.” Until 1935, “the substitution of doctors for midwives and of hospital delivery for home delivery did little in themselves to reduce mortality rates for mothers.”

A more sinister factor played a role in the banning of abortion in the 19th century. There was a widespread fear that immigrants, Catholics in particular, would soon outbreed the Anglo-Saxon population. As Briggs states: “The criminalization of abortion in the 1850s was about controlling women and anti-immigrant fervor.”

This was an early form of the “replacement” theory, which is supported by many on the right, most notably Fox News’ Tucker Carlson. Its most extreme form, reported on National Public Radio on May 12, is found among “prominent white supremacists who have called for abortion to be banned only for white women, but for it to be accessible and even free for women of color.”

In his brief Alito claims that “it is beyond dispute” that Roe v. Wade has led to a “highly disproportionate” number of abortions among Black women. The facts, however, are otherwise. The Kaiser Family Foundation survey found that “Black Americans account for 38 percent of abortions, while white people account for 33 percent.”

Alito’s central claim that the illegality of abortion is “deeply rooted in history and tradition” is simply false. As University of Maryland history professor Holly Brewer states: “The 17th-18th century understanding (of abortion) would mean upholding Roe v. Wade.”

I hope that Chief Justice John Roberts convinces Alito to withdraw his brief from consideration. Not only is it a threat to women’s rights and other fundamental rights, it would also be — with its sloppy reasoning and factual inaccuracies — a great embarrassment to the history of the Supreme Court.

Gier taught philosophy and religion at the University of Idaho for 31 years. Read his article on abortion at bit.ly/3ExwNUs. Email him at ngier006@gmail.com for sources and discussion.

Recommended for you