Opinion | The Movement That Put Alito on the Court Isn’t Finished – The New York Times

To establish this, Alito looks to the law as it existed in 1868, when the 14th Amendment took effect. Roe roots the right to an abortion in its due process clause, but Alito finds statutes “making abortion a crime” in 27 of what were then the nation’s 37 states. Thus, he concludes, lawmakers couldn’t have had abortion in mind when drafting, passing and ratifying the amendment.

Scholars disagree. Weighing in last year on Mississippi’s argument in the case in question, Dobbs v. Jackson Women’s Health Organization, Aaron Tang, a law professor at the University of California, Davis, disputed the claim that most states had banned abortion by the 1860s. At the time of the founding, he writes, “every state respected the right to abortion before the quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy.” By the time the 14th Amendment was ratified, he continues, “21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding.”