"Abortion" in the Founding Era: A Reply to Methodological Critiques of Miller & Bacallao, Justice Alito's Question

Abstract

On May 18, 2022, the Harvard Journal of Law & Public Policy published online an essay by Stephanie Nicole Miller and Mary Kay Bacallao. Miller is a current student at the Georgia State University College of Law; Bacallao graduated in 2022. After both had completed a course on Linguistic Analysis of Legal Texts at the GSU College of Law, they conducted independent research during the Spring 2022 semester prompted by the question posed by Justice Samuel Alito on December 1, 2021, at oral argument in Dobbs v Jackson’s Women’s Health: “[C]an it be said that the right to abortion is deeply rooted in the history and traditions of the American people?”

Using the methods of corpus linguistics Miller and Bacallao researched 18th century use of the word “abortion.” They found that “abortion” was generally used differently in the Founding Era, to refer to involuntary termination of pregnancy, much as “miscarriage” would be used today. They further looked for phrases referring to voluntary termination of pregnancy and concluded nothing they found showed that abortion was described as a right or privilege at the time of Founding.

Publication of the Miller & Baccalao essay was publicized by the GSU College of Law on Twitter. On June 24, 2022, within an hour of release of the Supreme Court’s decision in Dobbs, a number of questions, comments and critiques appeared on Twitter regarding Justice Alito’s Question directed specifically at the author as the teacher and supervisor of Miller and Bacallao. Prompted by these comments, the methodology used for Justice Alito’s Question is explained along with replies to some of the critiques posted on Twitter.