The revelation of a leaked draft opinion overruling Roe v. Wade was shocking on many levels. It portends the end of a constitutional right that millions of Americans have relied upon for nearly half a century. It threatens dramatic political repercussions for the Supreme Court and elected officials. And it represents a stunning breach of the court’s protocol.
But the most shocking aspect of the leaked opinion is something else entirely: the glaring historical mistakes that pervade its supposedly originalist analysis. Contrary to the draft’s conclusion, for as long as America has existed, so too have abortions — in most cases free of any form of criminal punishment.
At the heart of the opinion’s legal reasoning is a settled test. The 14th Amendment, the draft recognizes, protects unenumerated rights that are “deeply rooted in this Nation’s history and tradition.” Applying that test, the opinion concludes that “the right to abortion does not fall within this category” because when the 14th Amendment was adopted, “three quarters of the States made abortion a crime at all stages in pregnancy.” It is this supposed historical fact that allows the opinion to conclude that states should be given free rein to ban abortion today.
