The laws Alito cited in striking down Roe were passed before women could vote

No say
No say
Image: Reuters/Michael Mccoy
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Justice Samuel Alito, who authored the US Supreme Court’s majority opinion overturning Roe v Wade, rooted it in a historical review of abortion in the US, finding “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

This isn’t exactly correct. And as many have noted, he cites decisions made by the same people who endorsed slavery, among other crimes. But there is something else especially telling in the long list of anti-abortion laws listed in the decision: They were passed before women could vote.

About women, without women

“In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy,” Alito writes, explaining the context of the court’s ruling. The opinion notes that by 1868, when the 14th amendment was passed (the amendment grants the right to privacy and was referred to in the original Roe decision), 28 out of 37 states had made abortion a crime.

“Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. The trend in the Territories that would become the last 13 States was similar: All of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico),” Alito continues.

But it wasn’t until 1920, the year after New Mexico made abortion a crime, that white women won suffrage, and it wasn’t until 1965 that all Black women had their right to vote recognized, too.

In other words, the court decided that a woman doesn’t have a right to decide over her own body when it comes to pregnancy, based on a corpus of laws in which no woman was ever allowed to give her opinion.

And as a result of this latest opinion, abortion in the US is now a matter of state regulation, which means more than half the country will likely not have a right to it.