The leaked draft opinion that would overturn Roe v. Wade also takes aim at its version of history, challenging decades of scholarship that argues abortion was not always a crime.History, and arguments about history, have long been central to abortion jurisprudence.In its 1973 decision in Roe v. Wade, the Supreme Court found a constitutional right to abortion, grounded in what it described as a “right to privacy” provided in the Fourteenth Amendment. And that legal argument was bolstered by a historical narrative.State laws prohibiting abortion at all stages of pregnancy, Justice Harry Blackmun wrote in the opinion, were not of ancient or even common-law origin, but dated mostly to the late 19th century. Before that, he wrote, citing various scholars, abortion early in pregnancy was legal in most states.The leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, which would overturn Roe, offers a very different history. The 98-page draft, written by Justice Samuel A. Alito Jr., asserts that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”Roe, Justice Alito writes, “either ignored or misstated this history.” And “it is therefore important,” he continues, “to set the record straight.”The claim of an “unbroken tradition” of criminalizing abortion set off strong criticism from many historians, including some whose work was cited in an amicus brief submitted by the American Historical Association and the Organization of American Historians, the two main organizations of professional historians in the United States.Here are some of the historical claims in question.Justice Alito on the History of Abortion RestrictionsJustice Alito begins his historical argument by saying that the right to abortion is a recent invention. “Until the latter part of the 20th century,” he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”By contrast, he claims, “abortion had long been a crime in every single state.” Until the 19th century, he maintains, American law followed common law, which criminalized abortion “in at least some stages of pregnancy.” And the records of prosecutions, however scant, “corroborate that abortion was a crime.”In the 1800s, he writes, states began passing laws that “expanded criminal liability.” By the time the 14th Amendment was adopted, three-quarters of the states outlawed abortion at all stages of pregnancy, with the rest to follow within a few decades.How Historians See the StoryThe Constitution includes no references to abortion. And it wasn’t until the second half of the 20th century, Justice Alito writes, that people began claiming the idea of a basic right to abortion.Mary Ziegler, the author of several books on the history of abortion (and a critic of the draft decision), said that part was correct. But the opinion, she and others argue, underplays the fact that for most of the first 100 years of American history, early abortions — before fetal “quickening” (generally defined as the moment when the fetus’s movements can be detected) — were not illegal.This is the argument made in the historians’ brief, which outlines the history of abortion regulation up to 1866. For decades after the founding of the United States, common law did not regulate abortion, or even recognize that abortion was happening at that early stage. “That is because common law did not even acknowledge a fetus as existing separately from a pregnant woman” before quickening, the historians argue.The central historical claims in Roe “were accurate,” the brief says, “and remain so today.”Leslie J. Reagan, the author of “When Abortion Was a Crime: Women, Medicine and Law in the United States, 1867 to 1973,” said in an interview that abortion was common in the early 19th century, perhaps even more so than Roe depicted.And regulation relied on women’s own experience, since they were the ones who would know when “quickening” occurred. And before “quickening,” Professor Reagan said, taking medications or other treatments wasn’t even considered abortion, but “trying to get your menses” — menstrual period — “back.”“It was after quickening that it was against the law, and considered immoral,” she said. “After quickening, women themselves would stop trying to get their menses back. It was considered a life.”Justice Alito’s SourcesWhile the draft makes references to the historians’ brief, it relies more heavily on other sources, including “Dispelling the Myths of Abortion History,” a 2006 book by Joseph W. Dellapenna that challenged Justice Blackmun’s historical arguments in Roe.Professor Dellapenna, a law professor at Villanova University, cited (using a phrase Justice Alito echoes in the draft opinion) what he called an “unbroken tradition” of laws protecting unborn life, which stretched from English common law into the 1970s.His book has been hotly debated by historians. But Justice Alito also draws on other sources, including a brief submitted by the legal scholars Robert P. George and John M. Finnis, who challenged the historical scholarship supporting Roe.By the late 1860s, they argue, the legal distinction of “quickening” had been abandoned, “because science had shown that a distinct human being begins at conception.” When the Fourteenth Amendment was passed in 1868, they argue, fetuses were understood as “persons” deserving protection.In a post on Tuesday in Mirror of Justice, a Catholic legal blog, Professor George wrote that the term “person” in the Fourteenth Amendment “was publicly understood at the time of the framing and ratification of the amendment as including the child in the womb.”He added on Twitter that “bizarrely, some critics of the leaked Alito opinion in Dobbs are trying to cast doubt on his historiography by reviving discredited claims” about abortion history included in Roe, claims he said he and Finnis had “refuted.”In a telephone interview, he declined to comment further on the substance of the draft opinion, calling the leak a highly damaging breach of trust. But he said that history had always been crucial to the abortion debate, since analysis of history was “at the core of Roe.”By focusing on history, Professor George said, Blackmun was able to claim — falsely, he said — “that the Court wasn’t inventing a new right, but restoring an old common-law right.”How Abortion Restrictions Changed Over TimeIn 1827, Illinois became the first state to criminalize abortions pre-quickening. In 1829, New York elevated the offense from a misdemeanor to a felony.These laws were driven by various motivations. According to the historians’ brief, the stricter statutes enacted through the 1840s and 1850s “were often in response to alarming newspaper stories about women’s deaths from abortions. Yet despite these new laws on the books,” the brief says, “abortion convictions remained rare.”This echoes Professor Reagan’s book, which argues (citing the historian James C. Mohr) that the earliest laws regulating abortion were poison-control measures meant to protect women from dangerous abortifacient drugs, rather than to restrict abortion itself.But in 1857, Professor Reagan writes, the newly founded American Medical Association “initiated a crusade to make abortion at every stage of pregnancy illegal.” The organization was driven not only by concern for fetal life but also by the desire to take control from midwives. And some members expressed concern that middle-class “Anglo-Saxon” women were not having as many children as Catholic immigrants and people of color.Dr. Horatio R. Storer, a leader of the medical campaign against abortion, asked who would settle the nation as it spread westward. Would the frontier “be filled by our own children or by those of aliens?” he asked. “This is a question that our own women must answer; upon their loins depends the future destiny of the nation.”Debating the Connections Between Abortion and RaceIn the draft opinion, Justice Alito notes the argument that the restrictive abortion laws adopted starting in the mid-19th century were meant to bolster the white, Protestant birthrate. But he dismisses the claim, saying it is based on only a handful of supporters of abortion bans. “It’s quite a leap to attribute these motives to all the legislators whose votes were responsible” for the new laws, he writes.Instead, he writes, “there is ample evidence” that anti-abortion laws were “spurred by a sincere belief that abortion kills a human being.”Instead, Justice Alito notes arguments that proponents of abortion rights were the ones with racist motives. In a footnote, he refers to an amicus brief submitted in an unrelated 2019 abortion case, which argued that early 20th-century proponents of “liberal access to abortion” were motivated by a desire to reduce the Black population.“It is beyond dispute that Roe has had that demographic effect,” Justice Alito writes, citing government data showing that “a highly disproportionate percentage of aborted fetuses are Black.”He also cites Justice Clarence Thomas’s much-noted fiery concurrence in that 2019 abortion case, in which he assailed early birth control advocates like Margaret Sanger as racist eugenicists who wanted to suppress the births of “undesirable” individuals and populations.While Sanger herself did not support abortion, Justice Thomas wrote, other family planning advocates did so “for eugenic reasons.” And today, he warned, abortion retains the potential “to become a tool of eugenic manipulation.”The historical relationship between the early family planning movement and eugenicist beliefs (which were widely held across American society in the early 20th century) is complex and intensely disputed.But Professor Ziegler questioned how Justice Alito could dismiss the notion that abortion restrictionists in the 1850s were motivated even in part by bigotry, while citing claims that it was a motivation of some 20th-century supporters of abortion.People on both sides of the issue, she said, were driven by a mix of motives. “The idea the Court thinks it can weed out the nativist impulses” on one side, while emphasizing those impulses on the other, she said, “is historically implausible.”

As one museum has pledged to return skulls held in an infamous collection, others, including the Smithsonian, are reckoning with their own holdings of African-American remains.The Morton Cranial Collection, assembled by the 19th-century physician and anatomist Samuel George Morton, is one of the more complicated holdings of the University of Pennsylvania Museum of Archaeology and Anthropology.Consisting of some 1,300 skulls gathered around the world, it provided the foundation for Morton’s influential racist theories of differences in intelligence among races, which helped establish the now-discredited “race science” that contributed to 20th century eugenics. In recent years, part of the collection was prominently displayed in a museum classroom, a ghoulish object lesson in an infamous chapter of scientific history.Last summer, after student activists highlighted the fact that some 50 skulls had come from enslaved Africans in Cuba, the museum moved the displayed skulls into storage with the rest of the collection. And last week, shortly after the release of outside research indicating roughly 14 other skulls had come from Black Philadelphians taken from pauper’s graves, the museum announced that the entire collection would be opened up for potential “repatriation or reburial of ancestors,” as a step toward “atonement and repair” for past racist and colonialist practices.The announcement was the latest development in a highly charged conversation about African-American remains in museum collections, especially those of the enslaved. In January, the president of Harvard University issued a letter to alumni and affiliates acknowledging that the 22,000 human remains in its collections included 15 from people of African descent who may have been enslaved in the United States, and pledging to review its policies of “ethical stewardship.”And now, that conversation may be set to explode. In recent weeks, the Smithsonian Institution, whose National Museum of Natural History houses the nation’s largest collection of human remains, has been debating a proposed statement on its own African-American remains.Those discussions, according to portions of an internal summary obtained by The New York Times, have involved people who have long prioritized repatriation efforts as well as those who take a more traditional view of the museum’s mission to collect, preserve and study artifacts, and who view repatriations as potential losses to science.In an interview last week, Lonnie G. Bunch III, the secretary of the Smithsonian, declined to characterize the deliberations but confirmed the museum was developing new guidance, which he said would be undergirded by a clear imperative: “to honor and remember.”“Slavery is in many ways the last great unmentionable in American discourse,” he said. “Anything we can do to both help the public understand the impact of slavery, and find ways to honor the enslaved, is at the top of my list.”The anthropologist Samuel George Morton began collecting the skulls in the 1830s, as part of an effort to prove differences in intelligence across races.Hulton Archive/Getty ImagesAny new policy, Dr. Bunch said, would build on existing programs for Native American remains. It could involve not just the return of remains to direct descendants, but possibly to communities, or even reburial in a national African-American burial ground. And the museum, he said, would also strive to tell fuller stories of individuals whose remains stay in the collection.“It used to be that scholarship trumped community,” he said. “Now, it’s about finding the right tension between community and scholarship.”The quantity of enslaved and other African-American remains in museums may be modest compared with the estimated 500,000 Native American remains in U.S. collections, which were scooped up from burial grounds and 19th-century battlefields on what Samuel J. Redman, an associate professor of history at the University of Massachusetts at Amherst, termed “an industrial scale.”But Dr. Redman, the author of “Bone Rooms,” a history of remains collecting by museums, said the moves by Harvard, Penn and especially the Smithsonian could represent a “historical tipping point.”“It puts into shocking relief our need to address the problem of the historical exploitation of people of color in the collecting of their objects, their stories and their bodies,” he said.The complexities around African-American remains — who might claim them? how do you determine enslaved status? — are enormous. Even just counting them is a challenge. According to an internal Smithsonian survey that has not previously been made public, the 33,000 remains in its storerooms include those from roughly 1,700 African-Americans, including an estimated several hundred who were born before 1865, and so may have been enslaved.A page from from Morton’s “Crania Americana,” one of a series of works outlining a supposed hierarchy of intelligence based on skull size, with Europeans on top.via National Library of MedicineMorton’s work helped establish the dubious “race science” that flourished in the 19th century and went on to contribute to 20th century eugenics.via National Library of MedicineSome remains come from archaeological excavations. But the majority are from individuals who died in state-funded institutions for the poor, whose unclaimed bodies ended up in anatomical collections that were later acquired by the Smithsonian.In addition to the 1990 Native American Graves Protection and Repatriation Act, which requires museums to return remains to tribes or lineal descendants that request them, the Smithsonian allows remains from named individuals of any race to be claimed by descendants. While many African-American individuals in the anatomical collections are named, none have ever been reclaimed, according to the natural history museum.Kirk Johnson, the museum’s director, said that the anatomical collections, while disproportionately gathered from the poor and marginalized, included a cross-section of society in terms of age, sex, race, ethnicity and cause of death, which had made them extremely useful for forensic anthropologists and other researchers.But when it comes to African-American remains, a broader approach to repatriation — including a more expansive notion of “ancestor” and “descendant” — may be justified.“We’ve all had a season of becoming more enlightened about structural racism and anti-Black racism,” he said. “At the end of the day,” he added, “it’s a matter of respect.”Dr. Bunch, the Smithsonian’s first Black secretary, said he hoped its actions would provide a model for institutions across the country. Some who have studied the history of the trade in Black bodies say such guidance is sorely needed.In early April, new research claiming that the collection included roughly 14 skulls of Black Philadelphians taken from pauper’s graves in the 1830s and 1840s prompted renewed protests.Sukhmani Kaur“It would be wonderful to have an African-American Graves Protection and Repatriation Act,” said Daina Ramey Berry, a professor of history at the University of Texas and author of “The Price for Their Pound of Flesh,” a study of the commodification of enslaved bodies from birth to death.“We’re finding evidence of enslaved bodies used at medical schools throughout the nation,” she said. “Some are still on display at universities. They need to be returned.”Penn’s Morton collection vividly embodies both the sordid side of the enterprise, and the way the meanings of collections change.Morton, a successful doctor who was an active member of the Academy of Natural Sciences of Philadelphia, has sometimes been called the founder of American physical anthropology. He was a proponent of the theory of polygenesis, which held that some races were separate species, with separate origins. In books like the lavishly illustrated “Crania Americana,” from 1839, he drew on skull measurements to outline a proposed hierarchy of human intelligence, with Europeans on top and Africans in the United States at the bottom.Morton’s skull collection was said to be the first scholarly anatomical collection in the United States and, at the time, the largest. But after his death in 1851, it fell into obscurity, even as his racist ideas about differences in intelligence remained influential.In 1966, the collection was relocated to the Penn Museum, from the Academy of Natural Sciences in Philadelphia. And it quickly became a useful tool for all sorts of scientific research — including studies aimed at debunking the racist ideas it had helped create.In a famous 1978 paper (later adapted for his book “The Mismeasure of Man”), the paleontologist Stephen Jay Gould argued that Morton’s racist assumptions had led him to make incorrect measurements — thus turning Morton into a symbol not just of racist ideas, but of how bias can affect the seemingly objective procedures of science.The Smithsonian’s National Museum of Natural History, which has the country’s largest collection of human remains, is debating a statement on potential repatriation of African-American remains.Robert Alexander/Getty ImagesGould’s analysis of Morton’s measurements has itself been hotly disputed. But in recent years, the appropriateness of possessing the skulls at all has been sharply questioned by campus and local activists, particularly after student researchers connected with the Penn & Slavery Project drew attention to the remains of the enslaved Cubans.Christopher Woods, who became the museum’s director earlier this month, said the new repatriation policy (which was recommended by a committee) would not change the collection’s status as an active research source.Although there has been no access to the actual skulls since last summer, legitimate researchers can examine 3-D scans of the entire collection, including those of 126 Native Americans that have already been repatriated.“The collection was put together for nefarious purpose in the 19th century, to reinforce white supremacist racial views, but there’s still been good research done on that collection,” Dr. Woods said.When it comes to repatriation, he said, the moral imperative is clear, even if the specific course of action may not be. For the skulls of Black Philadelphians taken from pauper’s graves (a major source for cadavers of all races at the time), he said the hope is they can be reburied in a local African-American cemetery.The enslaved remains from Cuba, however, would require future research and possibly testing, as well as a search for an appropriate repatriation site, possibly in Cuba or West Africa, where most of the individuals were likely born.The Black remains may have become a particularly urgent issue, he said. But repatriation requests for any skulls would be considered.“This is an ethical question,” he said. “We need to consider the wishes of the communities from whence these people came.”