Alito's surprised there's little mention of abortion in a 4k word, 1787 document crafted by 58 men

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5. its also of interest that the states cited by Alito as his justification don't ban abortion outright

Aaron Tang @AaronTangLaw May 3
Reminder: When Alito claims that the rt to abortion is not "deeply rooted history or tradition" because "28 out of 37 states" banned it throughout pregnancy when the 14A was ratified, he is either being ignorant or willfully deceitful. His own appendix gives him away!

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Two of the states he includes in the 28 count and quoted in his own appendix only forbade abortion via dangerous poisons, not via common surgical procedures. See Nebraska (@ p.82) (abortion via "poison or other noxious" substance)) & Louisiana (@ p.76 (via "drug or potion" )

In other states, abortion statutes merely codified the longstanding common law rule of punishing abortions after quickening (@ roughly 15-16 weeks), but not before. E.g., Alito counts Oregon's ban on abortions on "any woman pregnant with child" as applying throughout pregnancy.

But Oregon's prosecutors admitted in the Oregon Supreme Court (!!) that "abortion is not a crime unless it results in the death of a . . . quick fetus." I.e., to ordinary ppl in the 19th century, being "pregnant with child" meant a quickened pregnancy. See https://cite.case.law/or/53/304/

Alabama's on Alito's 28-count, too. But that completely ignores the Alabama Supreme Court's ruling in 1857 that under the state's abortion statute, abortion was "not punishable by law" unless the mother was "quick with child." See https://cite.case.law/ala/31/45/

Other mistakes abound. Alito cites an incorrect version of the Virginia statute. He counts Florida even though its abortion ban was enacted after the 14th Amendment. I detail all of the errors here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3921358