Contrary to Alito’s opinion, history and tradition actually support a constitutional right to abortion for much of early pregnancy.
Roe v. Wade
on the basis of a particular legal test: The Constitution, it says, can only protect the right to abortion if it is “deeply rooted in our nation’s history and tradition.” Alito recognizes that this test is actually terrible for him as of the founding because the “distinction between pre- and post-quickening abortion” and treated the former as no crime at all.His response is to assert that this tradition changed by the time the 14th Amendment was adopted in 1868. By then, Alito claims, “three quarters of the States made abortion a crime at all stages of pregnancy.
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