"One of the competing narratives about Roe v. Wade is that the Supreme Court invented the constitutional right to abortion out of whole cloth. Nothing in the Constitution or American history or law, so the narrative goes, supports this right. Rather, seven unelected lawyers who are unaccountable to the American public inscribed it into the United States Reporter simply because they thought it was the right thing to do. Not so, says Professor Anita Bernstein in her intriguing new book, The Common Law Inside the Female Body. As Bernstein argues, the common law, a source of law usually associated with the interests of conservative, propertied, old white men, is actually a powerful source of liberty for women. In particular, the common law’s central command—that people are free to say “Do Not Want” with respect to their bodies, property, and money—applies to women. Bernstein’s application of this central command in two different legal contexts arising “inside the female body” means that the common law protects a right for women to say no to penetration and unwanted pregnancy. It is this latter right that directly challenges the notion that the Supreme Court invented the right to abortion in Roe."
January 1, 1970