As we approach the one-year anniversary of the Dobbs v. Jackson decision on abortion rights, it is worth returning to the decision to reflect on how we got here, and what other social issues might be impacted by the arguments presented in Dobbs v. Jackson. In the decision, Justice Samuel Alito claimed that abortion was not “deeply rooted in this Nation’s history and tradition.” Scholars took to social media to unpack his historical narrative and explain the gaps in his framing. Their posts pointed out the historical inaccuracies and problems in his account, but more importantly their arguments eroded the notion that moral traditions are self-evident authorities as opposed to fluid concepts continuously formed in discourse. The uncritical invocation of history and tradition can make something seem given, timeless, and universal – all without appealing to the divine.
Many threads pointed out that a lot of the “history and tradition” in both America and England considered abortion a crime only if it happened after “quickening,” or when the mother could feel the child move (about 20 weeks).
Others focused on the seventeenth-century English jurist Alito quoted, Sir Matthew Hale, and explained how Hale exemplifies that abortion discourse has long been part in parcel with a whole bunch of other patriarchal stuff, like marital rape and burning women as witches.
<blockquote class=”twitter-tweet”><p lang=”en” dir=”ltr”>Alito’s draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale who, it should be noted, had at least two women executed for witchcraft and wrote a treatise supporting marital rape <a href=”https://t.co/YijPlbkcq3″>pic.twitter.com/YijPlbkcq3</a></p>— emily bell (@emilybell) <a href=”https://twitter.com/emilybell/status/1521450341983739904?ref_src=twsrc%5Etfw”>May 3, 2022</a></blockquote> <script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>
Some asked questions about who was writing the “history and tradition” and how “deeply rooted” it really is. Scholars combed the draft to see who Alito cited, revealing that of the 75 legal scholars cited by Alito in the draft, only four are women. He cites himself more times than he cites the women in the document, combined.
<blockquote class=”twitter-tweet”><p lang=”und” dir=”ltr”><a href=”https://t.co/KwHVF5lGGI”>https://t.co/KwHVF5lGGI</a> <a href=”https://t.co/VUP9q471gJ”>pic.twitter.com/VUP9q471gJ</a></p>— Clara Jeffery (@ClaraJeffery) <a href=”https://twitter.com/ClaraJeffery/status/1522690643805437952?ref_src=twsrc%5Etfw”>May 6, 2022</a></blockquote> <script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>
We could also ask how long a tradition must be in place before it is deemed “deeply rooted.” What about the “tradition” of abortion access since 1973? That’s almost 50 years of the right to reproductive healthcare. Why is that not “deeply rooted”? But then again, Black and indigenous historians pointed out how access was not equal—many states made it difficult to virtually impossible for women to access the reproductive healthcare they need, not to mention stories of (largely white, young professional women) who sought a tubal ligation and were denied while sterilization was forced on Black and brown women. We could ask again, then (and from a different perspective), how “deeply rooted” have reproductive rights really been in the last 50 years?
<blockquote class=”twitter-tweet”><p lang=”en” dir=”ltr”>Native women’s modern reproductive rights battles have included: (1) being sterilized w/o consent + (2) being denied meaningful access to contraception. If these 2 facts are news to you, please stop w/ the “can an abortion clinic be opened on tribal lands” questions.🧵 1/4</p>— Stacy Leeds (@stacyleeds) <a href=”https://twitter.com/stacyleeds/status/1522612064438657024?ref_src=twsrc%5Etfw”>May 6, 2022</a></blockquote> <script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>
Lastly, this TikTok created by a historian of medieval and early modern English law highlighted that there were virtually no cases to cite in the “common law” tradition because they were in canon law court, not secular law court.
<blockquote class=”tiktok-embed” cite=”https://www.tiktok.com/@pardon_mi/video/7093590193839672618″ data-video-id=”7093590193839672618″ style=”max-width: 605px;min-width: 325px;” > <section> <a target=”_blank” title=”@pardon_mi” href=”https://www.tiktok.com/@pardon_mi”>@pardon_mi</a> trying to stay in my lane & just talk about the medieval law aspects. <a title=”medieval” target=”_blank” href=”https://www.tiktok.com/tag/medieval”>#medieval</a> <a title=”medievaltiktok” target=”_blank” href=”https://www.tiktok.com/tag/medievaltiktok”>#medievaltiktok</a> <a title=”law” target=”_blank” href=”https://www.tiktok.com/tag/law”>#law</a> <a title=”history” target=”_blank” href=”https://www.tiktok.com/tag/history”>#history</a> <a title=”legalhistory” target=”_blank” href=”https://www.tiktok.com/tag/legalhistory”>#legalhistory</a> <a title=”abortion” target=”_blank” href=”https://www.tiktok.com/tag/abortion”>#abortion</a> <a title=”supremecourt” target=”_blank” href=”https://www.tiktok.com/tag/supremecourt”>#supremecourt</a> <a title=”scotus” target=”_blank” href=”https://www.tiktok.com/tag/scotus”>#scotus</a> <a target=”_blank” title=”♬ original sound – Dr. MJ Pardon” href=”https://www.tiktok.com/music/original-sound-7093590192228993838″>♬ original sound – Dr. MJ Pardon</a> </section> </blockquote> <script async src=”https://www.tiktok.com/embed.js”></script>
Professor Mireille Pardon points out that the “tradition,” then, would be that abortion is the business of the church and very much not the business of the state. This is a particularly interesting point, since “the separation of church and state” looms so large in the discourse on religious liberty in America. Conservatives, in particular, have made freedom of religion so central in their rhetoric that Alito cannot draw directly on (Catholic) canon law to justify his claims.
However, as we have seen with battles over things like Ten Commandments monuments, Christians often get around this issue by claiming that appeals to Christian tradition are “historical” and not “religious.” Alito is trying to establish social norms without directly using (whatever version of) Christianity to authorize it. SCOTUS needs “tradition” in order to portray specific historical time periods as universal divine timelessness or, in other words, to use the tools we usually ascribe to religion without being “religious.”
Broad appeals to the past or to “roots” or “tradition” take social standards (especially ones that are contested and constantly negotiated) and create the appearance that the “norm” stands outside of history, society, and politics. Even without the language that directly appeals to divine forces or gods, the idea that “things have always been this way” gives it that immutable and enduring air. Of course, this strategic use of “tradition” is not new or not unique to the abortion debate — “traditional marriage” is another highly recognizable example of the phenomenon. In Traditional Marriage: One Man, Many Women, Some Girls, Some Slaves, Jay Michaleson showed the diverse and varied practices of marriage across time and space. Despite the varieties of marriage practices within the Bible alone, some still marshall the “tradition” claim as if it were transcendent or universal in attempts to naturalize it beyond the possibility of contestation.
In fact, some see marriage equality and even access to birth control as the next target for SCOTUS. Alito used similar language in his dissent in Obergefell v. Hodges (which required states to liscence same-sex marriage) when he wrote that marriage equality was not “deeply rooted” in American history and that it ran “contrary to long-established tradition.” This history-and-tradition strategy solidifies a mythic idea of early America that renders the contemporary diversity (of religion, of ideas about marriage, etc.) as unAmerican.
This particular American mythic history is what led scholars and journalists to actually historicize Alito’s claims and to unpack the centuries-old “traditions” which are internally diverse and don’t easily map onto contemporary categories and ideas. This type of nuance and complexity goes against the idea behind constitutional originalism or biblical literalism: that textual authority is simple, clear, and timeless. While “history” and “tradition” may seem like obvious, self-evident terms, moments like this highlight just how constructed these things really are. Indeed, what counts as “history” and what “traditions” are viewed as deeply rooted are decided by those whose claims are taken as normative. What does it mean to “acknowledge roots” and who gets to decide what those “roots” are?
Of course, appeals to tradition, roots, or origins are not relegated to this particular debate– making something “great again” is a core argument mobilized by conservatives and Trumpists. Once we unpack what is going on with these claims, we can recognize how (1) there is no clear “past” and (2) that these debates are actually not about the past at all. As the historians’ social media posts show, the past was both worse (e.g. the thread on Sir Matthew Hale) and better (in other ways, women actually more free). While none of those historians were suggesting we “go back” to the middle ages, they point out how our own narratives of progress have blinded us to the fact that other societies in other times and places are not “backward” while we are “advanced;” indeed, that idea that humans are evolving on some sort of linear progression is dangerous precisely because it allows to overlook the issues in our own society.
In fact, the notion of progress held in tension with the idea that the golden age is in the past lies at the core of American exceptionalism: we were both greater then and better now. We have the best “roots” but also are evolved and more sophisticated. Those were the good ol’ days and things are going to hell in a handbasket but also we are the best and we know it. Unraveling this paradox while saddled with the assumption that “tradition” is clear and self-evident rather than a set of discourses we can both work with and fight against seemingly makes us choose one of the two mutually exclusive assumptions. Thus in unpacking this tension it becomes clear that Alito’s narrative is not really about how Americans or English people in centuries past actually organized themselves but rather a cultural tool to be used in the present in order to authorize the claims of a minority.
The work of the historians on social media is important not only because they poke holes in this specific historical narrative, but even more so because they highlight how the idea of a singular and linear “tradition” surrounding abortion (or whatever else) is simply inaccurate. There is no enduring or coherent Christian belief about marriage, pregnancy, or the beginning of life because they are shaped by contemporary social reality (history, politics, science), just like everything else.
When we take the time to unpack modern appeals to the past, we can see that our contemporary interests don’t just influence our accounts of the past, they create it.
