It’s not just a song by Sam Cooke…
This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires a clear-eyed encounter with history– accurate history.
Efforts to teach a non-whitewashed ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.
The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.
In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history to justify his result. Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.
Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.
Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.
Another scholar who has criticized the ahistorical tale told by Justice Alito is Geoffrey Stone, who authored “Sex and the Constitution” and teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,
Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.
The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…
In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.
This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.
It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember, were often twisted...)
As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.