Dobbs v. History, Part Two: American Common Law

Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that “bedrock principles are founded . . . in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government.” (1)

INTRODUCTION

Excluding citations, the Dobbs Court dedicated only 152 words to reviewing American common law. The flimsiness of this section of the opinion is thus plainer than the comparatively wordy 632 words of the Court’s insubstantial English common-law analysis, as discussed in Part One. However, the examination of American common law is arguably even more flawed than that of English common law in two respects: reliance on the Court’s prior unfounded conclusions and the conflation of post-quickening restrictions with abortion’s general legality. (2) Regarding the former, the Court not only declined to substantiate common-law arguments in an American context but, as though attempting to construct the second floor of a building without a first, referenced unpersuasive arguments this series has already refuted. (3)

The latter derives, perhaps, from the Court’s realization that it could not find a “tradition” of common-law prohibitions on pre-quickening abortion, requiring it to rely on post-quickening restrictions to purportedly discern abortion’s broader legality. In any case, because the right to pre-viability abortion without undue government interference constituted the relevant segment of what Casey termed Roe’s “essential holding,” this series will continue its adherence to the question that should have guided the Court’s historical analysis: Did such a tradition of restriction exist for pre-quickening (or pre-viability) abortion, whether self-managed or administrative, medical or procedural? As in the previous article, the evidence supports an unequivocal answer: No.

ARGUMENT I: LEGAL TEXTS

The Court’s first American common-law argument concerned legal texts falling into two categories: an American edition of Blackstone’s Commentaries (a common-law treatise), and manuals for justices of the peace. The Court began by noting that the cited edition of the Commentaries contains Blackstone’s view of post-quickening, and thus extraneous, abortion as a misdemeanor. The Court also observed that the given edition includes Blackstone’s “discussion of the proto-felony-murder rule,” referring to the common law’s treatment of a woman’s accidental death during an abortion as murder or manslaughter, which the Court contorted into an ahistorical reproof of abortion broadly. (4) Thus, as the prior article noted, both observations are inconsequential to the legality of pre-quickening abortion.

The Court then posited that manuals for justices of the peace “typically restated the common-law rule on abortion” and “some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder if the woman died.” (5) However, the “unlawful[]” comment and its presence in some manuals do not contribute to a common-law “tradition” of prohibiting pre-quickening abortion, to use the standard the Court should have applied, due to the comment’s limited scope. (6) Namely, although Hale condemned as “unlawful[]” the provision of abortifacients and later called administrative or self-managed medication abortions performed after quickening “great crime[s],” the statements do not regard the majority of pre- or even post-quickening abortion categories. (7)

Likewise, whereas the Court portrayed both Hale and Blackstone as considering the provision of abortifacients “unlawful[],” only Hale did. (8) Blackstone, on the other hand, manifestly declined to condemn pre-quickening abortion in the germane sections of the cited Commentaries, even citing Hale when repeating the proto-felony-murder rule but specifically excluding the term. (9) And although the Court noted that Blackstone deemed post-quickening abortion a “heinous misdemeanor,” it ignored the implication, contained in the same paragraph, that no legal restrictions existed before quickening: “Life . . . begins in contemplation of law as soon as an infant is able to stir in the mother’s womb” (i.e., quicken). (10) Therefore, irrespective of the precise meaning of Hale’s “unlawful[]” comment, Blackstone’s rejection of his terminology creates two distinct possibilities: either the phrase did not concern pre-quickening abortion—making it immaterial—or it did, in which case Blackstone declining to adopt the term breaks the continuity of pre-quickening restrictions under common law. (11)

Not even the atypical, more-restrictive manuals exceeded the condemnation of abortion in the three narrow categories reached by Hale, as the Court tacitly admitted, or curtailed its implied allowance in the others. (12) Notably, the apparent final edition of a particular manual, Conductor Generalis, of which the Court cited numerous other editions, did not contain the “unlawful[]” comment or mention abortion. (13) Furthermore, Hale’s comment is the only statement among the cited works that so much as tenuously concerns a category of pre-quickening abortion, excluding a treatise that misstated the common law. (14) Consequently, even if the comment related to pre-quickening abortion, it does not contribute to a meaningful “tradition” of prohibition because of its restriction to the administrative-medication context and neither Blackstone nor the seemingly final edition of the manual most cited by the Court adopting it. (15)

One potential counterargument, relying on the arbitrary quality of defining a “tradition” under common law, is that Hale’s History and certain manuals for justices of the peace including the “unlawful[]” comment could suffice to establish a tradition of restricting pre-quickening abortion. (16) However, even if a more limited period of existence than the one offered by the Court were sufficient to establish a tradition, the comment still would not reach beyond the administrative-medication context, let alone support a tradition of wholly barring pre-quickening abortion. (17)

ARGUMENT II: CASE LAW

The Dobbs majority gave American case law as its final common-law argument against a right to abortion, covering over 200 years in three sentences. (18) The Court began with colonial America, citing a specious analysis of half a dozen cases mainly from the 17th century, none of which are relevant to the legality of (implicitly voluntary) pre-viability abortion under common law. (19)

Admittedly, the noted cases slightly vary in their degrees of irrelevancy. One case, given by the Court’s cited author as arising from abortion due to “injury techniques,” does not even refer to a criminal proceeding. (20) Instead, it alludes to a civil complaint regarding a miscarriage resulting from battery. (21) Two other cases arose from an abortion administered by a woman’s rapist and a man’s repeated battery of his wife, apparently to induce miscarriage. (22) Another two cases identified by the cited work, including the only one the Dobbs Court attempted to describe in this section, concerned forced abortions. (23) Yet another proceeding solely sought to determine the paternity of a stillborn child conceived out of wedlock, with no ultimate prosecution of the mother or the man she identified as the father, who she claimed caused the stillbirth by battering her. (24)

It does not require a legal scholar—not to mention a majority of the Supreme Court—to discern that the abortions and miscarriages in the given cases were non-consensual. (25) Therefore, instead of exhibiting contemporary abortion restrictions, the cases at most regarded the prosecution of those responsible for a forced abortion or continued the common-law tradition of permitting the victim of one to seek recourse in an action akin to modern-day tort suits. (26) Yet the Court either ignored or overlooked the axiomatic distinction between consensual and non-consensual abortion cases: the latter “do not involve voluntary efforts by a pregnant woman to terminate her pregnancy,” making said cases utterly irrelevant to delineating the legal right to do so. (27)

The Court’s reference includes a single colonial-era instance in which a woman’s punishment was directly related to an abortion, occurring in 1683 Rhode Island. (28) However, that case, in which one Deborah Allen was indicted for fornication and then attempting the “[destruction] of the [c]hild in her womb,” does not signify that abortion was prohibited in 1680s Rhode Island, much less that it was prohibited under common law, for several reasons. (29) First, three other sentences on the same page as Ms. Allen’s contest abortion’s purported criminality, as each of the former was prosecuted for fornication and sentenced to a fine, fifteen lashes, and orders to pay the court’s administrative expenses. (30) Meanwhile, Deborah Allen received the two latter punishments but was not fined. (31) Interpreting Ms. Allen’s indictment as evidencing abortion’s illegality is thus inconsistent with at least three other women receiving harsher sentences during approximately the same time as her for committing fewer alleged offenses. (32)

Moreover, the court never identified attempted abortion as a separate offense in its account of the indictment, leaving open the possibility that the indictment was not referring to it as a distinct offense but as an aggravating circumstance to fornication. (33) That view is buttressed both by the indictment exclusively mentioning the attempted abortion in connection with the named offense and from the court sentencing Ms. Allen for a singular “transgression,” fornication—as opposed to fornication and attempted abortion—or even mentioning abortion in a distinct capacity. (34) It would be one matter, for instance, if the court specified that Ms. Allen was found not guilty of an attempted abortion, as that would at least indicate the court’s cognizance of it as a separate offense. (35) However, because it neither did so nor otherwise implied that abortion was itself a crime, the Allen indictment solely denotes that abortion may have been considered an aggravating circumstance for certain crimes in early 1680s Rhode Island. (36) Notably, even the court’s explicit contemplation of abortion as criminal would not necessarily reflect the common-law rule, given the theocratic quality of Puritan New England and inconsistencies between its law and the common law. (37) Therefore, it would be unsurprising if the Puritans had adopted the “judicial law of Moses” and criminalized abortion, but there is no proof that they did. (38)

CONCLUSION

As upheld by Casey, Roe’s “essential holding” of fetal viability as the crucial legal demarcation before which the state could not unduly interfere with the right to abortion required the Court to find that the common law had long prohibited pre-quickening abortion, such that it was not a liberty so “deeply rooted in our history and tradition” as to warrant Fourteenth Amendment protection. The Court failed to meet that burden. Not only was the Court unable to provide, in text or citation, a single source evidencing a tradition of pre-quickening abortion restrictions under common law, but it relied on arguments that disintegrate after the slightest scrutiny, including: exclusively post-quickening restrictions this series has already addressed, a single phrase from a work published half a century before the Constitution was ratified that is limited in both scope and temporality, (perhaps accidentally) misrepresenting William Blackstone’s position on abortion (39), and non-consensual abortion cases. (40)

 

—————————————————————–

 

1. Students for Fair Admissions v. Harvard, No. 20-1199, slip op. at 37 (U.S. June 29, 2023) (Sotomayor, J., dissenting) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).
2. Compare Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, at 2249–50 (generally observing when a given authority made a quickening-based distinction), with Dobbs, 142 S. Ct. at 2251 (excluding quickening distinctions even when authorities included them).
3. See id. at 2248 (mentioning a “proto-felony-murder rule”).
4. See Peoples v. Commonwealth, 87 Ky. 487, 493 (Ky. Ct. App. 1888) (discerning a woman’s accidental death as one of two exceptions under which the common law punished the performance of an abortion, the other being if it was after quickening).
5. Dobbs, 142 S. Ct. at 2251 (emphasis added).
6. 1 Matthew Hale, Historia Placitorum Coronae (“The History of the Pleas of the Crown”) 429–30, 433 (1736).
7. Id. at 430.
8. Dobbs, 142 S. Ct. at 2253–54 (quoting id. at 429–30).
9. See 4 William Blackstone, Commentaries on the Laws of England 201 (7th ed. 1775).
10. 1 id. at 129 (emphasis added).
11. 1 Hale, supra note 6, at 429–30; see 4 id. at 201.
12. See Dobbs, 142 S. Ct. at 2251 (emphases added) (noting that manuals “typically restated the common-law rule on abortion,” without saying what the Court considered that to be, “and some” reiterated the “unlawful[]” comment).
13. See 1 Hale, supra note 6, at 429–30; A New Conductor Generalis (Albany, E. F. Backus, 1819).
14. See 1 Hale, supra note 6, at 429–30; Dobbs, 142 S. Ct. at 2251 n.30 (citing John Davis, A Treatise on Criminal Law (Philadelphia, C. Sherman & Co., 1838)). The treatise stated that a fetus’ “destruction . . . is a misdemeanor at common law.” John Davis, A Treatise on Criminal Law 339 (Philadelphia, C. Sherman & Co., 1838). The first authority cited is an English treatise that discussed an indictment for a pre-quickening administrative abortion under a statute, not the common law. See id.; 3 Joseph Chitty, A Practical Treatise on the Criminal Law 797–98 (Philadelphia, Edward Earle, 1819). Although that source did note an indictment arising from common law, see 3 Chitty, supra, at 798–801, it arguably only concerned assault with the resulting abortion constituting a “circumstance[] of aggravation” and “contain[ed] no count for the mere procuring of an abortion[.]” State v. Cooper, 22 N.J.L. 52, 56 (N.J. 1849). Moreover, even if the latter indictment regarded abortion as a separate offense, it was exclusively in the post-quickening context, given the repeated description of the woman as “big.” 3 Chitty, supra, at 799–800; see Cooper, 22 N.J.L. at 55 (“big” is synonymous with “quick”). The second source cited contains several portions about abortion, but none deeming it illegal before quickening. See Davis, supra; 1 William O. Russell, A Treatise on Crimes and Misdemeanors 617–18, 659–60, 796–99 (London, J. Butterworth, 1819).
15. See 4 Blackstone, supra note 9; A New Conductor Generalis, supra note 13.
16. 1 Hale, supra note 6, at 429–30; see, e.g., J. Parker, Conductor Generalis 65 (New York, John Patterson, 1788).
17. See supra notes 6–7 and accompanying text. This argument also moves the goalposts created by the Court, which all but stated that Blackstone adopted the comment despite him doing no such thing. See Dobbs, 142 S. Ct. at 2251; 4 Blackstone, supra note 9.
18. See Dobbs, 142 S. Ct. at 2251.
19. See id. (citing Joseph Dellapenna, Dispelling the Myths of Abortion History 215–28 (2006)).
20. Joseph Dellapenna, Dispelling the Myths of Abortion History 215 (2006) (citing a so-called “Rex v. Powell,” available in 7 Susie M. Ames, Am. Hist. Ass’n, County Court Records of Accomack-Northampton, Virginia, 1632-1640 (1954)).
21. See 7 Susie M. Ames, Am. Hist. Ass’n, County Court Records of Accomack-Northampton, Virginia, 1632-1640 43 (1954). Note that even if the case had been criminal, the miscarriage detailed was non-consensual. See id.
22. See Dellapenna, supra note 20, at 215–20 (describing Proprietary v. Lumbrozo, 53 Md. Archives 387–91 (1663) and Proprietary v. Brooks, 10 Md. Archives 464–65, 486–88 (1656)).
23. See id. at 218–25 (citing Proprietary v. Mitchell, 10 Md. Archives 171–86 (1652), in which the defendant forced a woman to ingest an abortifacient, and Rex v. Hallowell, 9 Super. Ct. Records Nos. 113, 173, 175 (Conn. State Library, Hartford, Windham County Super. Ct. Files, box 172) (1747), wherein the defendant coerced and frightened a woman into having an abortion, which caused her death).
24. See Brief for Am. Hist. Ass’n & Org. of Am. Hists. as Amici Curiae Supporting Respondents 12–13, Dobbs, 142 S. Ct. 2228 (No. 19-1392).
25. Cf. Dobbs, 142 S. Ct. at 2251 (citing Dellapenna, supra note 20, at 215–28) (implicitly deeming the gathering of three cases involving miscarriage following battery and three cases including coercive circumstances, making those in both categories non-consensual, as “collecting cases” regarding abortion).
26. See, e.g., cases described supra note 23; Carla Spivack, To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England, Wm. & Mary J. Women & L. 107, 136–42, 140 (2007) (quoting Dellapenna, supra note 20, at 135) (describing women’s ability to seek redress for miscarrying due to assault and battery under English common law and Dellapenna’s misunderstanding of such proceedings as “’abortion’ cases”).
27. Brief for Am. Hist. Ass’n & Org. of Am. Hists. as Amici Curiae 12; see Dobbs, 142 S. Ct. at 2251.
28. See Dellapenna, supra note 20, at 220 (citing Newport Cnty. Gen. Ct. Trials: Rec. Book, Vol. A 67 (Sept. 4, 1683 sess.)).
29. See Newport Cnty. Gen. Ct. Trials: Rec. Book, Vol. A 67 (Sept. 4, 1683 sess.) (available on request from the Archives of the Rhode Island Supreme Court Judicial Records Center and on file with author).
30. See id. (detailing the sentences for Rebeckah Hobson, Sarah Dye, and Hannah Dicken).
31. See id.
32. See id. This alone is not dispositive, as the court had any number of reasons to give Ms. Allen a lesser sentence than the three other women, but it does support the view that abortion itself was not a crime.
33. See id. Deborah Allen’s case evokes the Chitty indictment that arose under common law, as discussed by the New Jersey Supreme Court; the abortion in each is noted as an additional factor to a given offense—fornication and assault, respectively—but is never acknowledged as separately indictable. See id.; State v. Cooper, 22 N.J.L. 52, 56 (N.J. 1849); Chitty, supra note 14, at 798–801.
34. Newport Cnty. Gen. Ct. Trials, supra note 29.
35. See id.
36. See id.
37. See generally Alpheus Thomas Mason & Richard H. Leach, In Quest of Freedom 26–44 (1959) (describing the near-total blending of church and state in Puritan New England); see Cornelia Hughes Dayton, Women before the Bar 9 (1995) (contending that the “seventeenth-century Puritan courtroom occupies an anomalous position in the long histories of Anglo-American law”).
38. 1 Hale, supra note 6, at 433.
39. See supra notes 8–9 and accompanying text.
40. See supra notes 20–24 and accompanying text.