Were the Framers of the Constitution Pro-Choice?

Were the Framers of the Constitution Pro-Choice?

(UnitedVoice.com) – It seems more and more, people with an agenda will twist facts and history to justify a political point. On October 26, professor Aaron Tang of the law school at the University of California at Davis wrote an opinion piece in the Washington Post claiming the framers legally allowed abortions, technically making them pro-choice. To assert the claim, Tang tries to make an originalist argument to persuade Conservatives on the Supreme Court to uphold Roe v. Wade.

First, society is very different today than it was in 1787, and to force our norms on history to make a political point is not only wrong, it’s unethical. Second, the claim is patently false in the historical context. At no time through the 1700s or the 1800s was abortion legal in the United States. It was just the opposite.

Tang Assertions Refuted by Scholars

As the Founding Fathers drafted the Constitution, the early American justice system treated abortion as a criminal offense. Today, the standard the law uses is “viability” — meaning, is a baby viable — can it live outside the womb? In 1787, the legal term was “quickening.” It was the first instance a mother could feel the fetus move, which typically occurs between the 16th and 18th week of pregnancy. It’s important to note the Mississippi law the pro-choice advocates are challenging at the US Supreme Court uses the 15th week as the point at which no abortion would be legal in the state, except for a few notable exceptions.

Originalism interprets the US Constitution based on its meaning when the Founding Fathers ratified it in 1787. To suggest pro-choice originalism is an ill-conceived theory. Professor Tang stated, “If the Conservative Justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.”

Oxford University Legal Philosophy professor John Finnis and McCormick Professor of jurisprudence at Princeton University, Robert P. George, refuted Tang’s claim. The two professors say Tang took great liberties and they objected to 50 historical errors in his academic work to conclude the founding fathers were pro-choice. Finnis and George added Tang silently accepted their charges, ignored others, and replaced refuted claims with other false claims.

Tang Arguments for Pre-Quickening Abortion Refuted

In the Washington Post op-ed, Tang argues abortion was legal before quickening in early America. He also claimed the 14th Amendment later legalized abortion. Finnis and George said in the 1820s, states began prohibiting pre-quickening abortions. By 1858, most states outlawed all abortions at any stage of pregnancy from conception to birth and said the claim of the 14th Amendment was erroneous at best. From the nation’s earliest days, abortion was considered homicide or manslaughter.

Tang attempts to water down the historical and legal context of important decisions throughout US history. The originalist pro-choice argument simply doesn’t meet the time of the 1700s or 1800s. To arrive at such a conclusion requires a revisionist account.

While one has every right to make a case for abortion, one shouldn’t manipulate history to persuade people to a political or legal point. It’s academic and moral malpractice. Fortunately, numerous scholars are ready to set the record straight. The problem is, the damage is done, and many may never know about the truth of abortion in early American history.

Don Purdum, Independent Political Analyst

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