As many readers have probably noticed, tomorrow is a signal moment in our nation. The U.S. Supreme Court will hear oral arguments in Dobbs v. Jackson, a case challenging the constitutionality of Mississippi’s 15-week abortion ban. 

The Court’s decision in Dobbs is expected to determine the fate of Roe v. Wade, and subsequently, the ability of states to regulate the circumstances under which a woman may terminate a child while it is still in utero. Scholars expect the Court to decide Dobbs based on whether a right to abortion is consistent with the original meaning of “liberty” in the Fourteenth Amendment.

Over at Newsweek, professors Justin Dyer and Kody Cooper offer a helpful examination of the historical claims abortion rights supporters asserted first in Roe and raise again in amicus briefs filed in Dobbs. Dyer and Cooper point out that the pro-choicers’s attempts at presenting historical evidence supporting the practice of abortion is “more séance than scholarship.”

To set the historical record straight, the professors cite research showing that common-law authorities from Bracton to Coke to Blackstone treated the prenatal infant as a human being. Then they show how English colonists brought the common law’s approach to abortion to America by pointing by way of example, first, to a 1716 New York ordinance that prohibited midwives from aiding in or counseling an abortion, and second, to a court examination in a Viriginia abortion case in which John Marshall and Patrick Henry took part. Later, British and American doctors in the nineteenth century urged Parliament and American states to adopt comprehensive legal protections for prenatal infants that would apply as soon as new life begins. American state legislatures responded to such calls by passing prenatal protections during the forty years leading up to the ratification of the Fourteenth Amendment in 1868.

In short, Dyer and Cooper show that there is no historical basis for asserting that “liberty” under the Fourteenth Amendment incorporated a common-law right to abortion in the early stages of pregnancy. Tellingly, no scholars signed their names to the pro-Roe briefs that made such illusory claims.

 Read the full article here: https://www.newsweek.com/dobbs-v-jackson-history-mississippis-side-opinion-1649395

Tomorrow, at 10am EST, you can listen to oral arguments in Dobbs here: https://www.supremecourt.gov/oral_arguments/live.aspx. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].