The American Historical Association and the Organization of American Historians have jointly issued a statement expressing dismay that the US Supreme Court “declined to take seriously the historical claims of our [amicus curiae] brief” in its Dobbs v. Jackson Women’s Health Organization decision. “Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than thirty years. … These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country.”

To date, 30 organizations have signed onto the statement.

Download the statement as a PDF.

History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians

In September 2021, the American Historical Association and the Organization of American Historians submitted an amicus curiae brief to the US Supreme Court presenting the relevant history to the Dobbs v. Jackson Women’s Health Organization case. We are dismayed that the court declined to take seriously the historical claims of our brief. Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years. The opinion inadequately represents the history of the common law, the significance of quickening in state law and practice in the United States, and the 19th-century forces that turned early abortion into a crime.

Historians might note that the court’s majority opinion refers to “history” 67 times, claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of “quickening,” the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in US “history and traditions” at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.

These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country. We expect that historians will continue to correct the court’s misinterpretation about the history of legalized abortion in the US in their own research, teaching, and public speaking, while also addressing the multifaceted dilemmas presented by this decision.

The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The court’s majority opinion in Dobbs v. Jackson does not meet those standards and has therefore established a flawed and troubling precedent.

The following organizations have signed onto this statement:

American Association for the History of Medicine
Academic Council of the American Jewish Historical Society
American Association for State and Local History
American Society for Environmental History
American Society for Legal History 
American Society for Theatre Research
Association of African American Museums
African American Intellectual History Society
Association for the Study of African American Life and History
Berkshire Conference of Women Historians
Business History Conference
California Scholars for Academic Freedom
College Art Association
Conference on Latin American History
German Studies Association
History of Science Society
Immigration and Ethnic History Society
National Women’s Studies Association
North American Conference on British Studies
Radical History Review
Roy Rosenzweig Center for History and New Media
Shakespeare Association of America
Society for Historians of the Gilded Age and Progressive Era
Society for the History of Children and Youth
Society for the Study of Early Modern Women and Gender
Society for US Intellectual History
Society of Architectural Historians
Urban History Association
Western History Association
Western Society for French History