Thread by @AaronTangLaw

Want a quick break to read a 114 year old story that literally would not exist if Alito’s draft were right about the history of abortion law?

It’s a tale of scandal, intrigue, and *most of all* what ppl actually understood about the rt to abortion in early America. Thread:

In 1908, Oregon prosecutors charged an electrotherapist named J.D. Dunn w/ sexually abusing a 14-year-old patient. At trial, Dunn’s defense turned on a single witness, a certain Mrs. Kruse who said she was in the office during the alleged abuse and that it never happened. 2/13

Kruse’s testimony was a major problem for prosecutors. So they did what anyone who’s seen Law & Order would do: they tried to discredit her on cross-examination. After hard questioning, they got Kruse to admit she was Dunn’s former patient. But she refused to say more. 3/13

So prosecutors called another witness who would. That witness revealed that Dunn had performed an abortion on Kruse when she was three months pregnant.

What do you suppose happened next?

The answer reveals so much about the accuracy of Alito’s historical analysis. 4/13

In Alito’s world, this should’ve been the most jaw-dropping moment in open court. Under Oregon’s 1864 law, it was manslaughter to perform an abortion on “any woman pregnant w/ child.” To Alito, Dunn was just accused of an offense far more severe than what he was on trial for!5/13

But in the real world, prosecutors never charged Dunn. Quite the opposite. Appearing in the Oregon Supreme Court, attorneys for the state confirmed w/ little fanfare that “abortion is not a crime” under the 1864 abortion law unless it results in the death of “a quick fetus.”6/13

This meant that because he performed Kruse’s abortion at three months in gestation—well before quickening, or the fetus’s first noticeable movement around 16 weeks—Dunn had committed no crime at all.

This is devastating for Alito. Here’s why:7/13

Alito’s opinion says the Ct’s governing test is whether abortion is “deeply rooted in history & tradition” in America. He knows history & tradition as of the founding and at common law are terrible for him b/c EVERY state allowed pre-quickening abortion at those times. 8/13

Alito’s response is to claim most states changed their laws to ban pre-quickening abortion by the time the 14th Amendment was ratified. This move is so crucial that he includes a 23-page appendix (longer than most opinions!) listing every state law he says is on his side. 9/13

Alito claims Oregon is one such state. But as we’ve seen, that can’t be correct. Not unless Oregon’s prosecutors LIED to their SCt when they affirmed the state’s longstanding position that pre-quickening abortions were perfectly legal under the 1864 abortion law. 10/13

With the Oregon miscount revealed, the rest of Alito’s analysis crumbles. Many other state abortion laws used similar language—and were also understood as applying only after quickening. I describe them in detail here: papers.ssrn.com/sol3/papers.cf… 11/13

One final note. All my sources are public record, in particular the Oregon Supreme Court’s opinion in JD Dunn's case. See cite.case.law/or/53/304/

This opinion would’ve been easy to find if Alito or a clerk had searched ANY legal database for “abortion” and “quick”. 12/13

That Alito wrote his draft overruling the rt to abortion based on a mistaken historical conclusion without EVER bothering to do such a basic search—or worse, having done it, only to suppress inconvenient facts—says it all. Alito’s opinion has nothing to do w/ law or history. /end

Postscript: The jury voted to convict JD Dunn, and he was sentenced to a one year prison term. In all the local newspaper coverage of his trial, not a single mention is made of Kruse’s pre-quickening abortion—more evidence it was a total non-issue. See oregonnews.uoregon.edu/lccn/sn8302513…