Back in September 2021, I called attention to a long draft article—“The Originalist Case for an Abortion Middle Ground”—by law professor Aaron Tang that disputed the proposition that, “at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy.” The actual number, he argued, was 15. As I explained, the originalist proposition that the states have the authority to prohibit elective abortion does not depend at all on whether 27 or 15 states prohibited abortion from conception at the time the 14th Amendment was ratified. Either of those counts would demonstrate a widespread understanding that such legislation was permissible.
I also pointed out that law professors John Finnis and Robert P. George had offered a preliminary withering critique of Tang’s historical claim.
To Tang’s credit, he initially engaged with the Finnis/George critique. In two author’s notes that he appended to his draft, he even moved two states to the category of states that banned pre-quickening abortion. But he never addressed in detail the exhaustive critique that Finnis and George presented in the 50-page “Further Addendum” that they published in October 2021.
In Dobbs v. Jackson Women’s Health Organization, the American Historical Association and the Organization of American Historians submitted an amicus brief in support of the challengers to Mississippi’s abortion law. The brief argued that “American history and tradition regarding abortion under the common law undergirds [sic] Roe v. Wade’s holding that women have a constitutional right to decide for themselves whether to choose to terminate a pregnancy.” But in sharp contrast to Tang, it acknowledged (if somewhat backhandedly) that 26 states outlawed abortion before quickening by the time the 14th Amendment was ratified:
By the time the Fourteenth Amendment was ratified in 1868, nearly half of the states retained some vestige of the common law: in eleven states abortions remained legal before quickening; and of the twenty-six remaining states, seven imposed a lesser punishment during that stage. [Pp. 27-28.]
In his opinion in Dobbs, Alito cites the AHA amicus brief and points out that the brief “incorrectly excludes” two states from its count. As he sums things up:
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order). By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. See ibid. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.
The dissenters in Dobbs cite the AHA brief for the proposition that “even in the mid-19th century, more than 10 states continued to allow pre-quickening abortions.” They don’t cite, much less embrace, Tang’s claim that the actual number of states that continued to allow pre-quickening abortion at the time the 14th Amendment was adopted was higher than 20.
Tang ended up abandoning his draft “Abortion Middle Ground” article. But I’ve discovered to my great surprise that Tang has resurrected his historical claim in two prominent law journals. In a piece for the Stanford Law Review, he argues for some 20 pages that at the time the 14th Amendment was enacted, “the best evidence suggests that as many as 21 states continued the longstanding common law quickening rule that existed at the Founding and for centuries before.” And in a more recent piece for the Yale Law Journal’s online forum, he refers back to that “complete version” of his historical claim as he argues that “as many as a dozen” of the 28 states that Dobbs says banned abortion throughout pregnancy “actually did no such thing.”
Tang nowhere acknowledges in those articles that the AHA brief contradicts his claim. Nor does he undertake to engage the comprehensive criticism of his claim that Finnis and George offered. He cites the fuller Finnis/George paper only three times, twice with respect to Alabama and once with respect to Florida (and on Florida he completely misunderstands or misrepresents their point about originalist methodology). The trusting reader would have no idea that they dispute at length every one of his claims. Were the law-review editors hoodwinked? Or were they complicit?
To sum up (and to clarify any numerical confusion): Alito says in Dobbs that by 1868 28 states had enacted criminal statutes against abortion from conception and only 9 hadn’t. Finnis and George have the same totals. The AHA brief differs by two: it says that 26 states had enacted such laws and 11 hadn’t. In sharp contrast, Tang flips the numbers: he claims that as few as 16 states proscribed abortion from conception and that as many as 21 didn’t.
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I’m not going to try to run through all of Tang’s claims, but I will highlight one that I find particularly hilarious, all the more so as Tang saw fit to highlight it in a Slate essay after the Dobbs draft was leaked. (In dismantling this same claim in the immediate aftermath of the Dobbs ruling, Ramesh Ponnuru called Tang “a font of misinformation about the history of abortion law.”)
Oregon’s 1864 statute barred abortion on “any woman pregnant with child.” According to Tang, Alito’s majority in Dobbs erred by “count[ing] Oregon as banning pre-quickening abortion, even though the state’s own prosecutors admitted otherwise in open court.” (Tang’s italics, my underlining). Tang undertakes to explain how an unsuccessful and countertextual argument (not an admission) by prosecutors in 1909—more than four decades after the ratification of the 14th Amendment— somehow means that ratifiers of the 14th Amendment wouldn’t have understood the Oregon law to ban pre-quickening abortion:
The case, State v. Dunn, involved a prosecution of an abortion provider, one Dr. Dunn, for contributing to the delinquency of a minor child. State prosecutors had introduced evidence that Dr. Dunn had performed an abortion on one of the key defense witnesses in order to undermine the witness’s credibility. When the Oregon Supreme Court reversed the defendant’s conviction on the ground that the testimony about the witness’s abortion was unfairly prejudicial, the State argued on rehearing that it should not have been considered prejudicial, because under Oregon law, “unnecessary abortion is not a crime . . . unless it results in the death of the mother, or of a quick fœtus.” That state prosecutors would publicly take this position in their own Supreme Court suggests that it was the widely understood view within Oregon even as late as 1909, four decades after the Fourteenth Amendment’s adoption.
If your head isn’t spinning in confusion, it should be. What the case actually involved was prosecution of J.D. Dunn, an “electric healer” (Tang’s term in his Slate piece), not for anything having to do with abortion but for seeking to induce a 14-year-old girl to have sexual intercourse with him and for taking her hand and placing it on his private parts. Mrs. Kruse, a witness on behalf of Mr. Dunn, testified that no such incident took place. In an effort to impeach her testimony, the prosecutors tried to show that Mr. Dunn had performed an abortion on Mrs. Kruse, and they elicited from another witness, Mrs. Loomis, testimony that Mrs. Kruse told her that she had had an abortion at two or three months of gestation. Mrs. Loomis’s hearsay testimony, the Oregon supreme court observed, “was so manifestly prejudicial” because it “would tend to persuade the jury that the accused committed a felony”—a pre-quickening abortion—concerning a matter in no way connected with the misdemeanor for which he was on trial.”
On petition for rehearing, the prosecutors argued that the hearsay testimony that Mr. Dunn performed an abortion on Mrs. Kruse wasn’t in fact so prejudicial because an “unecessary [sic] abortion is not a crime … unless it results in the death of the mother, or of a quick foetus.” The prosecutors weren’t admitting anything. They were making an aggressive argument in a desperate effort to salvage their conviction of Mr. Dunn.
The court was suitably puzzled by this argument: “[W]hy this position is so earnestly pressed is not clear.” In any event:
Whether the interpretation invoked by the plaintiff of [Oregon’s general ban on abortion] is correct is not essential to a decision of the point under consideration, nor are we disposed to pass upon a question of such importance until necessary to do so. If the point is urged on the theory that the facts elicited could not have been prejudicial unless sufficient, under the statute, to constitute a crime, still the position thus assumed is untenable; for, as formerly explained, the testimony of Mrs. Loomis in reference to the matter was such as would ordinarily lead the jury to believe this section of the statute had been violated, the influence of which, presumably, had the same effect upon the jury as if the charges were in law conceded to be a crime.
In sum: More than four decades after Oregon enacted a law that generally bars abortion and that make no reference to quickening, prosecutors trying to salvage a conviction for contributing to the delinquency of a minor advanced a countertextual reading of the law. The Oregon supreme court declined to accept that reading and even observed that it was contrary to how a jury would ordinarily understand the law.
Tang asserts that the fact that “state prosecutors would publicly take this position in their own Supreme Court suggests that it was the widely understood view within Oregon even as late as 1909.” That strikes me as utterly preposterous.
Tang also thinks it significant—indeed, “devastating for Alito’s argument”—that the prosecutors didn’t prosecute Mr. Dunn for the abortion that Mrs. Loomis said Mrs. Kruse said Mr. Dunn performed on her. Hmmm, maybe, just maybe, the fact that the only evidence of such an abortion was Mrs. Loomis’s hearsay statement has something to do with that.