re Alito's "history"

I've reread the Dobbs opinion, and my initial evaluation remains: it is a political document, a political decision, that goes on and on for pages trying to smudge and obscure the reality of the majority making the result they personally, theologically, and ideologically desired. It fits Mark Tushnet's recent explanation of "American legal realism,"[1] result-oriented judging--or judicial law-making, if you will--alive and well here in the twenty-first century. 

Among the "paint and powder" applied by Justice Samuel Alito to mask that reality is a veneer of what he presents as the "history" of abortion. In particular, the court holds that the relevant moment is the ratification of the Fourteenth Amendment, and at that time the vast majority of the states had criminalized abortion by instrument. That historical contention is just incorrect. It was a minority of states. And the common law was not as Alito represents it. And in many other ways, the Alito opinion misrepresents or misunderstands the history of abortion in America.  

Of course, it was lawyers, who, on behalf of clients, deployed to the Supreme Court the "argument types" and "moves" to "support results anywhere within a large range." Here the outcome reached by the Court was at the far, far edge of that range, and the lawyers achieved the objective desired by their clients.[2]

Obviously, Alito ignored it, but the American Historical Association filed an amicus brief that lays out the relevant history per eminent American historians, and I recommend it (many thanks to the Hogan Lovells law firm for filing the historians' brief here). So do not rely on Alito's history. Instead:

https://www.historians.org/news-and-advocacy/aha-advocacy/aha-amicus-curiae-brief-in-dobbs-v-jackson-womens-health-organization-(september-2021)?_zs=ohLma&_zl=dWkA3

...and the Legal History Blog is continually reporting many other corrections by real historians to the errors made and presented as the "history" of abortion by Alito.


[1] Mark Tushnet, American Legal Realism Today, SSRN-id4001178 (2-19-2022).

[2] Josiah Daniel, A Proposed Definition of the Term "Lawyering," 101 L. Lib'y J. 207, 214-15 (2009), and available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296240.