Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/44

44 their abortion laws "in the middle and late 19th century," id., at 139, but it implied that these laws might have been enacted, not to protect fetal life, but to further "a Victorian social concern" about "illicit sexual conduct," id., at 148.

Roe's failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the common law had probably never really treated post-quickening abortion as a crime. See id., at 136 ("[I]t now appear[s] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus."). This erroneous understanding appears to have played an important part in the Court's thinking because the opinion cited "the lenity of the common law" as one of the four factors that informed its decision. Id., at 165.

After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. This included a lengthy account of the "position of the American Medical Association" and "[t]he position of the American Public Health Association," as well as the vote by the American Bar Association's House of Delegates in February 1972 on proposed abortion legislation. Id., at 141, 143, 146. Also noted were a British judicial decision handed down in 1939 and a new British abortion law enacted in 1967. Id., at 137–138. The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country.

Finally, after all this, the Court turned to precedent. Citing a broad array of cases, the Court found support for a