The Webster Brief, or How NOT to be a Historian Activist

In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. Claiming that the “life of each human being begins at conception,” the law said that no public facilities could be used for abortions unless the mother’s life was in danger, it was illegal to counsel women to have abortions, and physicians were required to perform viability tests upon pregnant women. Lower courts struck down the restrictions and the case of Webster v. Reproductive Services wound up in the U.S. Supreme Court, where it was eventually argued on April 26, 1989.

Since the case had the potential to overrule Roe v. Wade, the pro-choice movement scrambled to mount an insurmountable defense based on many factors, including the history of abortion in America.

In 1989, NYU Law Professor Sylvia A. Law gathered a group of historians to advocate for the pro-choice position.

According to Law, “When the Supreme Court indicated that it was open to overruling Roe v. Wade, I contacted my…friends in the history profession.” She tasked her team of historians to write and file a brief that had three objectives – “to preclude the Court from relying on history in a stupid way, to tell the truth, and to support a political mobilization of pro-choice voices.”

Now, for anyone remotely familiar with how historians conduct their trade, this is about as egregious an example of how NOT to do good history as you are likely to find – to begin with a pre-conceived conclusion and work backward to make the data support that conclusion is taboo.

Nonetheless, Ms. Law was able to get 281 historians to initially sign on to the brief. When all was said and done, there were over 400 signatories.

The amicus brief was based on the work of historian James Mohr, who is currently teaching at the University of Oregon. Mohr’s book Abortion in America: The Origins and Evolution of National Policy, 1800-1900 is still considered one of the standard works in the field, and having such a prestigious expert sign on to the brief added much weight to the final document. One of Mohr’s fellow signers would later say:

The message of the brief is unequivocal. Roe v. Wade reached the correct outcome and should be upheld. The history of abortion, and especially abortion regulation, the historians lectured the court, supports the right of women to choose.

Other signatories included authorities on the history of architecture, early modern France, North China and yes, in some cases, abortion.

In summary, the brief claimed that:

  1. abortion was not illegal at common law at the time the Federal Constitution was adopted and was a common practice that the Founding Fathers were well aware of
  1. late-19th-century laws against abortion had nothing to do with a desire to preserve the life of the fetus and were the work of doctors who wanted to protect their professional status by shutting out the “irregular” physicians who performed abortions.

Concerning the second allegation, the brief commented that “fetal rights” was a ruse designed to provoke gender and class fears that allegedly fueled the opponents of abortion.  In the words of the brief, “we must…question whether protection of the unborn has become a surrogate for other social objects that are no longer tolerated.” At this point the brief veered from history to political commentary by smearing the modern pro-life movement by implying that they are feigning concern for the unborn as a cover for their own inherent racism and sexism.

But ad hominem attacks were the least of the brief’s problems – as it turns out, the two fundamental conclusions that are touted as historical fact in the brief are problematic at best and complete falsifications at worst.

Historian John Keown, author of Abortion, Doctors, and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, has conducted deep research that shows that abortion was illegal under English common law (which, of course, was the basis of American common law.) Keown examined thousands of legislative records, judicial opinions, speeches, medical and jurisprudential textbooks, and other sources to show that a concern for the fetus was central to common law prohibitions on abortion.

There is also abundant evidence – much of which is contained, ironically, in the works of the historians who signed the brief – to suggest that abortion was actually quite rare in America prior to the mid to late 19th century.

Finally, the most important reason why 19th century doctors advocated for tighter restrictions on abortion was their belief that an innocent human being lost its life. One of the best sources for this conclusion is none other than Mohr’s Abortion in America! Confronted with the fact that he signed on to a brief that patently contradicted the claims of his own research, Mohr fudged by saying that the brief was not “history, as I understand the craft” but a “political document” that he signed as a historian and a civilian.

When these discrepancies were brought before Sylvia Law, she doubled down by saying “the document is constructed to make an argumentative point rather than tell the truth.”

Historian Michael Grossberg (currently at Indiana University Bloomington) defiantly said, “As a historian who has written on the history of abortion, I signed the original brief; upon reflection, I would sign it again.”

Criticism of the brief was immediate, but made no appreciable impact.

Writing in New York University Law Review, Jonathan D. Martin aptly concluded, “As amici curiae, [the historians] have smoothed over complexity, ignored countervailing evidence, and contradicted their own scholarship – all in the name of advocacy.”

In an article titled “Academic Integrity Betrayed,” Gerard V. Bradley cried, “Were Mohr called as an expert witness (i.e., to testify orally) at a trial of precisely the issues raised in Webster, he would with such behavior be liable to indictment for perjury.”

And George McKenna, in an article styled “Lying: Occasional and Organized” pronounced – “This was not just sloppy work, it was fraudulent.

Amazingly, the historians who signed on to the Webster Amicus Brief never offered a word of explanation over the glaring discrepancies and falsifications found in their document, nor have they retracted a single word of it.

They wrote the history that they wanted to be true, and found a receptive audience all too eager to accept their claims as gospel.

With no serious challenge to the brief ever mounted from academia, an altered version of the same brief was resubmitted in the 1992 case of Planned Parenthood v. Casey, which tragically reaffirmed Roe v. Wade. The brief still shows up in the footnotes of works that claim to offer “objective” analysis on abortion policies in the United States.

The Webster brief offers a case study in how not to wear the duel hats of historian and activist – regardless of the position one is arguing for, sound scholarship based on thorough historical investigation should be the only acceptable criteria used to advocate for it.

Such a decisive moment in America’s abortion debate begs the question – where are the pro-life historians?

Next up: a post in honor of African American History Month

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