Flawed History, Flawed Decision: A Review of Joseph W. Dellapenna's Dispelling the Myths of Abortion | Fr. Ralph Wright, O.S.B.
Editor's Note: The United States Supreme Court legalized abortion in America in 1973. In the majority opinion, Justice Harry Blackmun stated that he and his fellow justices studied and relied upon medical history in making their decision. Joseph W. Dellapenna's recent book, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006), takes a hard look at the real legal history of abortion in England and America and painstakingly exposes the errors in Justice Blackmun's conclusions. In this essay, Father Ralph Wright, O.S.B., reviews the key positions made in Dellapenna's book and illustrates how the Supreme Court's flawed view of history resulted in a flawed decision on abortion.
Sincerity is pre-required
in any search there be
but it is truth that is desired
for only truth sets free.
— Ralph Wright O.S.B.
Can History Describe What Actually Happened?
"The task of historians remains to attempt as best they can to report and interpret the past as it was and not as the historians wish it were." -- Joseph Dellapenna, Dispelling the Myths of Abortion History (p. 1036)
"Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes towards the abortion procedure over the centuries." -- Justice Harry Blackmun, Roe v. Wade 'majority opinion' (preamble, paragraph I)
The abortion issue, the right of women to abort their children, is a central issue at this time in the human community world wide. In the United States, since the Roe v Wade decision was handed down by the Supreme Court on January 22, 1973, some 50 million abortions have been recorded. Currently, the annual rate is a little over one million. Given the statement made by Justice Blackmun in the preamble quoted above it is of no small importance to evaluate the reliability of the historical information—the legal medical-history, as the Justice calls it—which according to his explicit statement, was an important element in the decision. Historical fact should guide our present reasoning and judgment, historical fiction should not.
Professor Joseph Dellapenna, in his book Dispelling the Myths of Abortion History, has set out to do just this. He rejects the notion that all history is subjective and that there is no way of establishing. what happened'. In the midst of a culture in which a philosophical relativism is pervasive and where the belief that there is no such thing as objective truth is widespread. he refuses to accept that the search for historical fact is equally futile.
"The cultural contingency of accepted history neither destroy s the factual nature of what actually happened in the past nor the historian's obligation to attempt to recapture as much as possible of what actually happened... As historian Carl Friedrich pointed out, 'the perplexing paradox of all historical work is that what actually happened can never be recaptured, although historical research would lose its point without belief that more of it can be recaptured than is presently known.'" 
The Supreme Court Relied On a False Account of the Legal History of Abortion
In Roe versus Wade, the Supreme Court in general and Justice Blackmun in particular, relied too heavily on Professor Cyril Means' account of the legal history of abortion both in England and in America. This history was deeply flawed. It was specifically in error in its claim that abortion was a "common law liberty" both in England and in America until the 19th century. This history also incorrectly claimed that the statutes of the 19th century that made abortion illegal were directed primarily at protecting the health of women, not the lives of unborn children.
In his meticulously referenced book, Dellapenna demonstrates that both of these claims are false. In the following passage he summarizes what he then demonstrates in detail in the next thirty pages:
In the seventeenth century we find a woman condemned for self-abortion, as well as noteworthy cases in which a man was convicted of murder when the infant was born alive and subsequently died bearing the signs of the abortion and in which it was held to be murder if the woman died from the abortion even though she had consented to the procedure. Later still, a woman was convicted of aborting another (consenting) woman before the child quickened; the abortionist was sentenced to three years imprisonment after exposure in the stocks. The evidence leaves little room to believe that abortion was a common law liberty contrary to the new orthodoxy of abortion history."A little later, on the following page, Dellapenna continues:
"Attempts to abort apparently were becoming more common, and were consistently treated as a serious crime in England and prosecuted as such, although some confusion was introduced regarding the point at which a fetus became a 'person'. In the story of these legal events two men—Sir Edward Coke and Sir Matthew Hale—stand out as lawyers, judges and scholars who shaped the thinking of their societies about these and other legal matters. Given their prominence in the events of their century, they truly were riders in the storm. Under their influence, the common law regarding abortion did change, but abortion was not and did not become legal—as the legal scholars of the following century unanimously attest. These same legal patterns regarding abortion were replicated in England's American colonies." The Legal Status of Abortion in England and America Before the 19th Century
In 1732 we have an account of the trial for a misdemeanor of a woman in Derby, England. This is perhaps the first recorded trial of an abortion caused by using an "intrusive" instrument. The citation is from an account of the trial published in The Gentleman's Magazine :
"Indicted a second time by the name of Eleanor Beare, for a Misdemeanor, in destroying the foetus in the womb of Grace Belfort by putting an iron instrument up into her Body and thereby causing her to miscarry."After the testimony of the witnesses the account of the trial concludes:
"His Lordship summed up the Evidence in a very moving Speech to the jury. wherein he said. he never met with a Case so 'barbarous and unnatural.' The Jury after a short consultation, brought the Prisoner in Guilty of both Indictments, and she received sentence to stand in the Pillory, the two next Market-Days, and to suffer close imprisonment for Three years. " 
Dellapenna comments on the fact that the abortion concerned a child in the pre-quickening stage of the pregnancy: "Eleanor Beare was sentenced to the pillory and to three years in prison for inducing an abortion at less than 14 weeks of gestation. well before quickening was likely."  This occurred during the reign of King George II.
19th Century Legislation on Abortion in New York State
New York State set the legal trend in the 19th century and has been most completely studied by historians, so there is more evidence to be examined here than in any other state. It was also in the New York Law School that the late Professor Cyril Means taught and it is the focus of his history. Dispelling therefore uses the developing abortion legislation in this State to show that the protection of fetal life was central in the legislation of 1829, 1845, 1869 and 1872.
"The provision making a woman's solicitation of or performance of an abortion on herself a crime would seem to make it indisputably clear that the 1845 statutory scheme like that of 1829 was designed to protect fetal life. Although one might argue that the crime of self-abortion represented excessive paternalism, a more natural reading suggests an intent to protect the fetus from the mother." 
By the middle of the 19th century abortion was growing and becoming more common. Opposition to it was growing too. On February 5, 1867, the Medical Society of New York at Albany produced a series of resolutions, the preamble of which read:
...whereas from the first moment of conception there is a living creature in process of development to full maturity; and whereas any sufficient interruption to this living process always results in the destruction of life; and whereas the intentional arrest of this living process, eventuating in the destruction of life (being an act with intention to kill) is consequently murder; therefore...There followed several resolutions two of which we cite below:
Resolved:.. That this society do express their abhorrence, and deprecate in a most emphatic manner, the growing increase of that demoralizing aid given and practice rendered in procuring criminal or unnecessary abortion."This resulted in the statute of 1869. The following year the Committee of Criminal Abortion of the AMA issued a report that concluded:
"We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less." 
The matter was once more revisited by the legislature and the act in 1872 "seemed to reflect even greater concern for fetal life than its predecessor.
A section from the 1872 act will suffice to show the tenor of the statute:
#2 Any woman pregnant with child who shall take any medicine, drug, substance or thing whatever or shall use or employ or suffer any other person to use or employ, or submit to the use or employment of any instrument or other means with the intent thereby to produce the miscarriage of the child of which she is pregnant, unless the same shall have been necessary to preserve her life or that of such child, shall in case the death of such child be thereby produced, be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the State prison for a term not less than four years or more than ten years.Dellapenna comments at this point: "After reviewing the foregoing evidence, one again can only marvel at historians who conclude that the destruction of the fetus never gained the standing either of infanticide or homicide."
In 1901 Judge Pearson of Maryland reflected on the fact that in "...these days of 'advanced' surgery and marvelous medical science and skill, operations are performed and powerful drugs administered by skillful and careful men without danger to the life of the patient." But he points out that the prosecution of abortionists is first and foremost directed at protecting the life of the unborn child rather than the life of the woman.
The woman takes her life in her hands when she submits to an abortion, be she wife or maid, but her death is no necessary element in the procuring of an abortion and the application of the harsh rule here contended for would have no effect in the repression of that abhorrent crime, which can only be efficiently dealt with by severity in the enactment and administration of the law punishing the attempt upon the life of the unborn child... The corpus delicti of the offense of abortion is the destruction of the unborn infant. Summary
The above quotations will suffice in this brief glimpse from a very substantial book to give the reader a sample of Dellapenna's position. This position he trenchantly described in the early pages of the book:
Justice Harry Blackmun devoted fully half of the majority opinion in 'Roe' to the history of abortion, using that history to inform his interpretation of the 'values' involved in the case and ultimately whether the statutory prohibition of abortion was constitutional. Blackmun relied heavily and uncritically on Means' history, citing Means (and no other historian) no less than seven times. Like Means' Blackmun's conclusions were wrong on all points. In the wake of these conclusions demonstrated with unflinching thoroughness, Dellapenna puts a challenge before the Court in these words:
"It is time that the Court took seriously its own premise that the constitutional status of a claimed right to abort is to be tested against the history and traditions of this nation. The accumulated wisdom relating to abortion teaches us that the prohibition of abortion was always viewed as the protection of emerging, yet real, human life- a concern only made more certain by the continual growth of medical knowledge of gestation during the last two centuries." 
With this in mind I offer the following reflections
1. Roe states: "The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." (Ch. IX, A)
Have any fresh events helped to establish this "personhood"?
What are we to say about the child in utero who can now be removed for surgery and then replaced in its mother's womb and carried to term? A famous photograph shows the child's hand reaching out of the womb through the incision and clutching the surgeon's finger. Are we to consider that the fetus was a person during the surgery and then a non-person once it was returned to the womb until it was later born? Such contentions put a strain on reasonableness and border on the absurd.
2. Through ultrasound we can now watch the fetus' life in the womb. We can photograph it. The mother can already see and appreciate her child. Does not this have some bearing on whether the unborn may be regarded by the mother and her physician—or even a passing Supreme Court Justice—as a person?
3. We can now measure the pain that the fetus experiences through the meters that monitor pain. We can estimate the levels of pain at different stages of the child's growth in the womb. Should the law not take cognizance of this fact in its assessment of the legal protection from pain appropriate for this human being growing in the womb of its mother?
This essay began with Dellapennna's reflections on the search for objective truth in the history of abortion and the law in England and America. But now our search has widened. Now we are asking questions that deeply puzzle and disturb the mind and heart of the contemporary seeker of truth. Questions like this:
Why did the laws in the 19th century have so keen an interest in protecting intra-uterine life from abortion when the very nature of that life and its development were so imperfectly known at that time? And why in the twentieth century when we knew so much more about its development—when our photography and ultrasound have watched and recorded the wonder of its growth—did we remove its legal protection and allow the refined barbarism of the abortion procedures to destroy this amazing being? As Congressman Chris Smith said on the floor of the U.S. House of Representatives on May 20, 2004:
"I happen to agree with the ACLU's contention that the method of abortion called Dilation and Evacuation causes incredible pain, maybe even more pain than a Partial-Birth Abortion. The Dilation and Evacuation method, which is used in most second trimester abortions, involves the abortionist grasping the unborn child's body parts at random with a long-toothed clamp. The fetal body parts are then torn off of the body and pulled out of the mother. The remaining body parts are grasped and pulled out, one by one, until only the head remains. The head is then grasped and crushed in order to finally remove it from the mother. It takes 30 minutes from beginning to end."
Smith concluded his testimony with the following:
"It is time that we opened our eyes to the terrible pain that unborn children feel every day during abortions performed in our cities and towns. Right down the street babies are being ripped limb from limb in a way that would create an outcry if they did it to a cat, dog or pig. Let's stop the denial and recognize the truth—abortion is excruciatingly painful to unborn children."
The sad fact is that many of those who want to keep abortion legal are not that interested in the being and value of the fetus/unborn child/baby that is in the womb. It has been observed that a mother will refer to the being in her womb as a fetus if she is planning to abort it and as 'my baby' If she is hoping to bring it to birth. The being in the womb however does not change—only what happens to it. Is this why pregnant women in an abortion clinic are not allowed to see the inhabitant of their womb on ultrasound, while the physician preparing to do the abortion uses this technology to assess the exact age of the fetus and the exact procedure needed to destroy it? They must not be allowed to see the reality of their child or the might think twice about aborting it. This theory is supported by the fact that statistics from the Pregnancy Resource Centers show that, of those who stop by on the way to the abortion clinic and use the center's ultrasound to view their baby, about 90% change their minds and decide to have their child.
After the horror of the Nazi eugenics program that occurred before and during World War II the World Medical Association adopted the Declaration of Geneva in 1948 setting forth a "standard" for medical ethics. It runs:
"I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient. I will maintain the utmost respect for human life, from the time of conception; even under threat. I will not use my medical knowledge contrary to the laws of humanity" 
It would be great if we could go back to this. Go back to what doctors, feminists, lawyers and judges were proclaiming with great fervor in the 19th century at the moment when the progress in surgery and antisepsis was making abortion an almost safe procedure. In this first decade of the new millennium, when it is estimated that at least 80% of abortions are performed—not after rape, not to save the life of the mother or for any of those other "crisis" reasons that played so prominent a role in the persuasive arguments of NARAL—as a back-up to failed contraceptives; it would be good at a time like this, to discover and proclaim who we are as rational human beings. Then, conscious of our dignity from conception to natural death, we might at world level—perhaps via another more extensive human rights declaration by the United Nations—set about restoring legal protection for our unborn children.
"Do not do unto others what you would not have them do unto you."
Fr. Ralph Wright
January 9, 2008
 Dispelling the Myths of Abortion History (Carolina Academic Press, 2006), by Joseph Dellapenna, p. 1035.
 ibid., 185-6.
 August issue, 1732, p. 931.
 Ibid., p. 235.
 Ibid., p. 236.
 bid., p. 326.
 1867 N.Y. ASSEMBLY J.443-44; Dispelling, p. 323.
 Dispelling, p. 324.
 Ibid., p. 424.
 Ibid., p.14-15.
 Ibid., p.1084.
 Ibid., p. 510.
Related IgnatiusInsight.com Articles and Book Excerpts:
The Case Against Abortion | An Interview with Dr. Francis Beckwith, author of Defending Life
What Is "Legal"? On Abortion, Democracy, and Catholic Politicians | Fr. James V. Schall, S.J.
The Illusion of Freedom Separated from Moral Virtue | Raymond L. Dennehy
What Is Catholic Social Teaching? | Mark Brumley
Introduction to Three Approaches to Abortion | Peter Kreeft
The Myth of the "Wall of Separation | Dr. James Hithcock
Some Atrocities are Worse than Others | Mary Beth Bonacci
Personally Opposed--To What? | Dr. James Hitchcock
Mixed Messages | Phil Lawler
Father Ralph Wright, O.S.B. teaches moral theology and is the director of vocations at the Abbey of Saint Mary and Saint Louis in the Archdiocese of Saint Louis.
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