Justice Alito’s history of abortion in leaked draft opinion? It’s debatable, experts say.

  • Scholars have fought for decades over how states viewed abortion in the 1860s.
  • Alito: Majority of states had criminalized abortion when 14th Amendment was ratified.
  • Historians on both sides of the abortion debate accuse the other of ignoring context, nuance.

WASHINGTON – Associate Justice Samuel Alito’s draft opinion in Mississippi’s challenge to Roe v. Wade is reenergizing a brawl over the history of abortion in the United States – a debate almost as fraught as the one over the procedure itself.

Legal scholars and advocates have fought for decades about how states treated abortion when the 14th Amendment was ratified in 1868, guaranteeing states could not deprive Americans of “liberty” without due process of law. The framing of that history will be key as the justices deliberate over how Americans defined “liberty” 150 years ago. 

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