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In his 98-page draft opinion, Alito looked to the history of abortion policies in the U.S. to bolster his conclusion that Roe and Casey “must be overruled.”

Abortion is not a constitutionally protected right, Alito wrote, pointing out that the Constitution itself makes no reference to abortion. While he acknowledged that the court has interpreted the 14th Amendment to guarantee some rights that are not explicitly spelled out, Alito cited precedent stating that those rights must be deeply rooted in U.S. traditions and “implicit in the concept of ordered liberty.”

“The right to abortion does not fall within this category,” Alito’s draft said. “Up until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

The justice wrote that abortion was outlawed in three-fourths of the states at the time the 14th Amendment was adopted in the 1860s, and that 30 states had banned the procedure at all stages of pregnancy at the time Roe was argued before the court.

But the American Historical Association, which boasts of being the world’s largest organization of its kind, argued in a 2021 court brief that “American history and tradition under the common law undergirds Roe v. Wade’s holding that women have a constitutional right” to choose to have an abortion.

The group said that early Americans followed English common law, which did not regulate abortion prior to the detection of fetal movement — known at the time as “quickening.” That was the point at which the fetus was legally acknowledged to exist separately from a pregnant woman, the group said, adding that that common-law reasoning on abortion persisted in a majority of states up to the Civil War.

Abortion laws grew harsher in many states in the mid-1800s, aided by physicians in the American Medical Association. They were driven in part by fears about the reproduction rates of Catholic immigrants and women avoiding motherhood, according to the group.

The American Society for Legal History in a separate brief told the high court that abortions continued after those laws were passed, and accelerated during the Great Depression. That led some hospitals to craft reasons for abortions to be allowed, which “destabilized an already contentious status quo,” the organization said.

Medical advances in the mid-20th century made pregnancy and delivery much safer for women, diminishing the prevalence of abortion as a life-saving procedure. That, in turn, increased the risk of prosecution for abortion-performing physicians. It prompted many doctors in the 1960s to call for relaxing abortion regulations, the group said.

By the early 1970s, “both pro-life and pro-choice groups began advancing arguments rooted in the Constitution,” according to the brief.