Patricia Cline Cohen argues in her June 27 column (“The Dobbs decision looks to history to rescind Roe”) that it was error for the Supreme Court to overrule Roe v. Wade because prior to criminal law codification in the early 19th century, abortion was only a crime after quickening. That claim is simply not historically correct, as the Dobbs majority opinion makes clear, and Cohen cites no evidence for it. Cohen also argues that 19th century statutory penalties on pre-quickening abortions were not widely supported by the public. Even if that were true, the question is whether the Fourteenth Amendment implicitly recognizes a right to abortion, and given that the Fourteenth Amendment was ratified by the same legislatures that enacted the abortion statutes, it doesn’t make sense that they intended to invalidate the very statutes that they themselves had approved.
Moreover, even if the availability of pre-quickening abortion had been considered an indispensable element of personal liberty at the time the Fourteenth Amendment was adopted, Roe should still have been overruled. Roe declared a constitutional right to abortion up to the point at which the child could survive outside the womb (“viability”), which doesn’t occur until weeks after quickening. Furthermore, the most problematic aspect of the Roe decision was its vague and ambiguous discussion of post-viability abortion, which led to a situation in which end-of-term abortions were available in the United States that would be prosecuted as serious crimes in Europe and most of the rest of the world. George Tiller, one of at least several medical doctors who openly admitted to killing hundreds of unborn children after viability, ostensibly to protect the mother’s “emotional” or “family health,” said, “We are able to use the wide definition and the full implementation of the Roe v. Wade decision which allows us to do post-viability terminations of pregnancy.”
John Harrington
Shelburne