SERIES INTRODUCTION[1]
In light of Dobbs v. Jackson Women’s Health Organization’s life-altering consequences, discussing abortion’s legal history as far back as the 13th century risks turning what many consider a simple question of bodily autonomy into an overly historical enterprise. Accordingly, it is first necessary to note that this series submits history as only one of the possible bases for recognizing a right to abortion. For example, one could rely on stare decisis by regarding Roe v. Wade (1973) as an extension of the constitutional right to privacy, arguably first recognized by the Supreme Court in 1891.[2] Therefore, rather than imply that centuries of historical support must predicate recognition of a given right, this series will explain how Dobbs collapses on its terms—how, even by limiting oneself to arguments based on centuries-old history, the Court’s position is untenable.[3]
The Dobbs majority primarily relied on an ostensibly objective assessment of history to overrule Roe and Planned Parenthood v. Casey (1992).[4] Specifically, the Court disagreed with Roe’s and Casey’s determination that substantive due process, which protects rights unenumerated in the Constitution but deemed “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” under the Fourteenth Amendment’s Due Process Clause, extended to pre-viability abortion.[5] The Court drew on two areas of history to reach its “inescapable conclusion”[6] that the right to pre-viability abortion fails the first criterion: English and early American common law, and 19th-century state abortion statutes.[7]
This four-part series will disprove the Court’s history-based conclusions and demonstrate how the common law and 19th-century statutes instead support recognizing pre-viability abortion as a constitutionally protected right under the Ninth and Fourteenth Amendments.[8] The first and second installments refute the Court’s mischaracterizations of abortion’s treatment under English and early American common law, respectively. The third focuses on the 19th century to demonstrate that the Court mistakenly relied on state statutes as evidence that the Fourteenth Amendment does not cover pre-viability abortion under substantive due process.[9] Finally, the fourth installment provides a comprehensive perspective on abortion’s legal history and addresses additional arguments made by the Dobbs Court.
Three important distinctions between differing kinds of abortions are crucial to this series. The first concerns the quickening doctrine, which deemed abortions legally permissible if they occurred before the first-felt fetal movement and less so if they happened afterward.[10] Although quickening refers to a different gestational demarcation than fetal viability, as the two typically occur during the fourth or fifth[11] and sixth[12] months of pregnancy, respectively, this series will use the terms interchangeably with respect to supporting Roe’s “central holding,” as stated by Casey, of viability “mark[ing] the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”[13] Condemnations of post-quickening abortions alone, for example, are deemed equivalent to only regarding post-viability abortions.[14]
The second and third distinctions concern self-managed versus administered and procedural versus medication abortions.[15] The former refers to abortions that are self-performed next to those performed by another person, whereas the latter alludes to abortions performed through the use of instruments compared to those brought about through medication. These three distinctions are notable because they relate to different categories of abortion for which legal differentiation is possible, thus limiting the historical condemnation or prohibition of abortions in a given category from concerning the legality of those in the other categories. For instance, a common-law authority’s reproof of post-quickening, administrative-procedural abortions does not pertain to the legality of medication, self-managed, or pre-quickening abortions.
With the occasional exception of pre- versus post-quickening, Dobbs entirely disregarded the foregoing bifurcations.[16] Notably, however, by overruling Roe’s “essential holding,” in relevant part, the Dobbs majority carried the burden of establishing that pre-viability abortion was not “deeply rooted in our history and tradition.”[17] Not a single one of the Court’s historical examples helped it do so. Some are nearly irrelevant to abortion altogether.[18] Many solely regard post-viability abortions.[19] Others are constrained to the administrative, procedural, or medication contexts.[20] And the few remaining after considering the distinctions ignored by the Court concern non-consensual abortions or non-authoritative anecdotes that occurred nearly two-hundred years before the Constitution was written.[21]
Dobbs declined to utilize the history it purported to rely on. Accordingly, whatever else might be said about the decision, its eventual demise will be self-inflicted—by supporting the notion that history should control its outcome, yet reaching the opposite conclusion of what history supports, Dobbs laid the groundwork for its undoing. This series will show how wrong Dobbs got that history, and why it instead supports affording constitutional protection to pre-viability abortion.
DOBBS V. HISTORY, PART ONE:
ENGLISH COMMON LAW
It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.[22]
—O. W. Holmes, The Path of the Law (1897)
INTRODUCTION
The Dobbs Court gave three distinct English common-law arguments: the opinions of common-law authorities, case law, and the so-called proto-felony-murder rule.[23] As given, these arguments are almost entirely irrelevant to the legality of pre-viability abortion, much less supportive of the Court’s position.
ARGUMENT I: WRITINGS OF COMMON-LAW AUTHORITIES
The Court first argued that the “eminent common-law authorities,” such as Matthew Hale, William Blackstone, and Edward Coke, “all describe abortion after quickening as criminal.”[24] Even without examining the overall consistency of the cited authorities with the common law or their possibly contentious motives, the legal status of post-quickening abortions is irrelevant to the legality of pre-quickening abortions.[25] Thus, taken uncritically, the Court’s first common-law argument is immaterial to pre-viability abortions.[26]
ARGUMENT II: ENGLISH CASE LAW
The Dobbs Court next contended that “English cases dating all the way back to the 13th century” support the notion that abortion was considered a crime.[27] The Court did not substantively expand on that claim and instead cited two sources that do not convincingly reinforce it.[28] The first source primarily concerns non-consensual abortions or miscarriages[29] and instances where the “main concern was something other than the abortion itself.”[30] Meanwhile, the second source evaluates various cases allegedly concerning abortion that are unconvincing for varying reasons.[31]
The Dobbs majority seemed to find persuasive Rex v. Beare (1732).[32] As the Court observed, Eleanor Beare was convicted for “destroying the Foetus in the Womb” of one Grace Belfort and “thereby causing her to miscarry.”[33] However, the Court ignored or failed to notice that the case was only ever reported in a magazine, with historians unable to find an official record “[d]espite considerable searching.”[34] The Court also neglected to acknowledge that Ms. Belfort was intoxicated—having testified that she and Ms. Beare were “full of Liquor” when the abortion occurred—which the English court could have viewed as sufficiently incapacitating for the abortion to be non-consensual.[35] Given Ms. Belfort’s arguable lack of consent and non-prosecution, with her instead serving as a witness against Ms. Beare, the case at most supports the common-law indictability of performing a non-consensual abortion.[36]
ARGUMENT III: THE PROTO-FELONY-MURDER RULE
The Court’s final English common-law argument concerned the so-called “proto-felony-murder rule,” referring to Hale and Blackstone describing physicians as committing murder if they provided a pregnant woman with an abortifacient and taking it resulted in her death.[37] First, Hale was quoted as stating that a physician’s provision of a “potion” resulting in a pregnant woman’s death constituted murder because “the potion was given ‘unlawfully to destroy her child within her.’”[38] The Court then argued that Hale’s comment indicated disapproval of all abortions, including pre-quickening ones.[39] However, Hale plainly avoided condemning abortion outside of the administrative-medicinal and post-quickening contexts in both of his cited treatises, limiting the relevance of the “unlawful” comment.[40]
The Court next quoted Blackstone, who, after giving the prototypical example of the transferred intent doctrine under tort law of one committing murder if they mean to shoot Person A but instead shoot Person B, wrote “[s]o also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.”[41] The Court did not attempt to explain how Blackstone’s statement “explained a way in which pre-quickening abortions could rise to the level of a homicide,” as it said the proto-felony-murder rule did.[42] Regardless, the common law rule on the matter was unambiguous: “Conceding it to be the common law rule that one is not indictable for the commission of an abortion unless the child has quickened, yet all the authorities agree that if, from the means used, the death of the woman results, it is either murder or manslaughter.”[43] Therefore, the common law explicitly only punished post-quickening abortions or instances in which the woman was accidentally killed.
The Court interpreted Hale’s and Blackstone’s writings as total denunciations of abortion because neither specified that a woman must be “with quick child,” yet missed or ignored four points that contradict its own.[44] First, as the Kentucky Court of Appeals recognized in 1888, performing an abortion was not indictable under common law unless it was after quickening or the woman died as a result, thus permitting pre-quickening abortions.[45] Second, the notion that the proto-felony-murder rule indicates any common-law condemnation of abortion is self-defeating because Hale and Blackstone describe the given circumstances as constituting murder if the woman died, thus requiring more than the loss of “her child” alone.[46] Third, neither scholar’s statements reach beyond the context of administrative-medicinal abortions, demonstrably falling short of justifying the Court’s conclusion that either applied to “prequickening abortions” as a whole.[47]
Finally, even the Court’s cited edition of Hale’s History explains that the common law was concerned with non-consensual and—at most—post-quickening abortions instead of the act itself: “The unintentional killing of a female, in an attempt to produce an abortion, with her own consent, was not in itself murder, although at the common law, if she was quick with child, it formed a very aggravated case of felonious homicide.”[48] Consequently, the proto-felony-murder rule, as described by one of the Court’s sources, only loosely implies the common law’s disapproval of post-quickening administrative abortions and its punishment of those responsible for accidentally killing a woman while attempting to perform an abortion.[49] Both condemnations are irrelevant to the legality of consensual pre-quickening, or pre-viability, abortions.
THE ATTEMPTED “POSITIVE RIGHT” REDOUBT
The Court concluded its English common law section by advancing an unprecedented demand for substantive due process analyses: a positive historical right.[50] Adherence to that standard is not only contrary to the extant substantive due process evaluation, but it is also an underhanded way to discount the evident legality of pre-quickening abortions under common law.[51] That legality is indicated not only by the authorities the Court ignores, but also by those it relies on—Matthew Hale, for example, albeit appearing to condemn abortion in some contexts, patently declined to condemn pre-quickening abortions that were self-managed or procedural.[52] Moreover, a state court of appeals unequivocally held that performing an abortion was not indictable under common law unless the “child ha[d] quickened” or the woman was accidentally killed.[53] Thus, although there exists no evidence to satisfy the Court’s extraordinary demand of a positive right to abortion during the given period, several “common-law case[s] or authorit[ies]” clearly considered pre-quickening abortions—or at least certain subcategories, in Hale’s case—perfectly legal.[54]
CONCLUSION
The Dobbs Court’s English common-law arguments abjectly failed to prove that pre-quickening abortions were prohibited under common law. The Court’s arguments either concerned the legality of post-quickening abortions alone, only described cases including non-consensual abortions or additional factors, were completely irrelevant to abortion, or constituted a combination thereof.[55]
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[1] I’d like to thank Bekah Bass, Marissa Sable, Emily Ross, and Hannah Katz for their invaluable comments and editing. I also want to thank Christopher Kinch and Andrew Smith from the Rhode Island Supreme Court Judicial Records Center, who found the original account of a colonial Rhode Island case, and Elsie McLaughlin from the Rhode Island State Archives, who located obscure Rhode Island statutes from the 19th century.
[2] See Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).
[3] This series will generally avoid disputing the authority of the Court’s sources to cohere with the premise of rebuking Dobbs on its terms. But see Ken Armstrong, Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Ideas on Rape, PROPUBLICA (May 6, 2022, 1:50 PM), https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale [https://perma.cc/AS79-HWAX].
[4] See Dobbs, 142 S. Ct. at 2249 (characterizing the Court’s account of abortion’s legal history as “set[ting] the record straight” due to “Roe either ignor[ing] or misstat[ing] [abortion’s legal] history, and Casey declin[ing] to reconsider Roe’s faulty historical analysis”).
[5] Id. at 2242 (internal quotation marks omitted) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
[6] Id. at 2253.
[7] Id. at 2249–53.
[8] Some scholars have argued that the historical right to abortion extends further. See Cyril C. Means Jr., The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335, 336 (1971) (claiming that women in England and the United States had a common-law right to abortion at every stage of gestation from 1327 to 1803 and 1607 to 1830, respectively). Although these claims merit exploration, they are beyond this series’ narrow concern with pre-viability abortion as the nadir of warranted constitutional protection.
[9] See Dobbs, 142 S. Ct. at 2252–53.
[10] See Roe, 410 U.S. at 132–33 (quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1261 (24th ed. 1965)) (“It is undisputed that at common law, abortion performed before ‘quickening’ . . . was not an indictable offense.”).
[11] See id. at 132 (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1261 (24th ed. 1965)).
[12] Facts Are Important: Understanding and Navigating Viability, AM. COLL. OF OBSTETRICIANS & GYNECOLOGISTS: ADVOC., https://www.acog.org/advocacy/facts-are-important/understanding-and-navigating-viability [https://perma.cc/N7SR-TMKN] (last visited March 18, 2025). This series refers to “viability” in the second possible circumstance acknowledged by ACOG—as shorthand for “whether a fetus might survive outside of the uterus.” Id.
[13] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992) (plurality opinion), overruled by Dobbs, 142 S. Ct. at 2242.
[14] Cf. Webster v. Reprod. Health Servs., 492 U.S. 490, 553–54 (1989) (Blackmun, J., concurring in part and dissenting in part) (“As a practical matter, because viability follows ‘quickening’ . . . and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy.”).
[15] ACOG Guide to Language and Abortion, AM. COLL. OF OBSTETRICIANS & GYNECOLOGISTS, https://www.acog.org/contact/media-center/abortion-language-guide [https://perma.cc/AUF6-CH4U] (last visited March 20, 2025).
[16] See Dobbs, 142 S. Ct. at 2249–53 (largely declining to substantively recognize the noted limitations within treatises, cases, and statutes).
[17] Casey, 505 U.S. at 833–34 (citing Roe v. Wade, 410 U.S. 113 (1973), overruled by id. at 2242); Washington v. Glucksberg, 521 U.S. 702, 727 (1997).
[18] See discussion of a “proto-felony-murder rule” infra notes 37–43 and accompanying text.
[19] See Dobbs, 142 S. Ct. at 2249, 2251 (emphasis added) (describing the supposed opinions of certain common-law authorities and early American legal texts on post-quickening abortions before observing that “courts frequently explained that the common law made abortion of a quick child a crime” by the 19th century).
[20] See various inapposite examples used by the Court infra note 55.
[21] See cases discussed infra note 31.
[22] O. W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
[23] See Dobbs, 142 S. Ct. at 2249–51.
[24] Id. at 2249.
[25] See Means, supra note 8, at 345–48 (claiming that Edward Coke repeated Henry de Bracton’s 13th-century position on abortion, despite intervening contrary authorities, due to a personal animus).
[26] See Dobbs, 142 S. Ct. at 2249.
[27] Id. The Court attempted to obfuscate the quickening distinction early in its historical analysis, describing English case law as “corroborat[ing] the treatises’ statements that abortion was a crime,” immediately after quoting various common-law scholars on the status of post-quickening abortions alone. Id.
[28] See id. (citing JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006); JOHN KEOWN, ABORTION, DOCTORS AND THE LAW (1988)).
[29] See JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY 126 (2006).
[30] Carla Spivack, To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England, 14 WM. & MARY J. WOMEN & L. 107, 117, 117–18 (2007) (citing id. at 177–78) (noting that in one of the cases Dellapenna cites to support abortion’s purported illegality, a woman who died while performing a self-managed abortion was condemned for committing suicide, not for the attempted abortion); see Dobbs, 142 S. Ct. at 2249.
[31] See JOHN KEOWN, ABORTION, DOCTORS AND THE LAW 7–8 (1988) (presenting as supporting abortion’s illegality an instance where a woman suffered a miscarriage after a man battered her and a 1602 indictment concerning the ingestion of an abortifacient that lacked any “citation of authority,” did not explicitly deem abortion illegal, and may have only regarded a post-quickening abortion); Dobbs, 142 S. Ct. at 2249.
[32] See Dobbs, 142 S. Ct. at 2249–50.
[33] Id. (quoting 2 THE GENTLEMAN’S MAGAZINE 931 (1732)).
[34] DELLAPENNA, supra note 29, at 233.
[35] 2 THE GENTLEMAN’S MAGAZINE 931 (1732).
[36] Some might call foul on dismissing Beare because of the consent issue alone, labeling it speculation. Regrettably, analyzing cases that lack official records requires bridging factual and legal gaps. Objectors may also argue that Ms. Beare was separately indicted for performing an abortion on an unknown woman, with no mention of coercive circumstances. See id. Because of word-limit constraints on this article, Part Four will discuss at length why that indictment, and Beare itself, are unpersuasive.
[37] Dobbs, 142 S. Ct. at 2250; see 1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE [THE HISTORY OF THE PLEAS OF THE CROWN] 429–30 (W.A. Stokes & E. Ingersoll eds., Phila., Robert H. Small 1847) (1736); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 201 (7th ed. 1775).
[38] Dobbs, 142 S. Ct. at 2250 (quoting 1 HALE, supra note 37).
[39] See id. at 2250–51.
[40] 1 HALE, supra note 37, at 429–30, 433; see MATTHEW HALE, PLEAS OF THE CROWN 53 (P.R. Glazebrook ed. 1972) (1678) (emphasis added) (“If a woman quick with Child take a potion to kill it . . . .”).
[41] Dobbs, 142 S. Ct. at 2250 (quoting 4 BLACKSTONE, supra note 37, at 200–01).
[42] Id. The implicit argument relies on the transferred intent doctrine comparison—i.e., it would certainly constitute murder if one meant to and in fact did shoot Person A, so Blackstone’s comparison indicates that abortion itself was illegal. See id. However, and fatally for this argument, Blackstone never even impliedly deemed pre-quickening abortions indictable without the woman’s death. See infra note 46 and accompanying text.
[43] Peoples v. Commonwealth, 87 Ky. 487, 493 (Ky. Ct. App. 1888) (emphasis added).
[44] Dobbs, 142 S. Ct. at 2250 (quoting 4 BLACKSTONE, supra note 37, at 201).
[45] See Peoples, 87 Ky. at 493.
[46] Dobbs, 142 S. Ct. at 2250 (quoting 1 HALE, supra note 37, at 430); see 4 BLACKSTONE, supra note 37, at 200–01.
[47] Dobbs, 142 S. Ct. at 2250; see 1 HALE, supra note 37; 4 BLACKSTONE, supra note 37, at 200–01.
[48] 1 HALE, supra note 37, at 454m (emphases added). The distinction warrants a rhetorical question: If the “proto-felony-murder rule” truly indicated that the “common law did not condone even prequickening abortions,” why would it distinguish instances in which the abortion was consensual? Dobbs, 142 S. Ct. at 2250; see id.
[49] See 1 HALE, supra note 37, at 454m.
[50] See Dobbs, 142 S. Ct. at 2251 (“[W]e are aware of no common-law case or authority . . . that remotely suggests a positive right to procure an abortion at any stage of pregnancy.”); Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (describing substantive due process analyses, with no such requirement of a positive historical right).
[51] See Glucksberg, 521 U.S. at 720–21.
[52] See 1 HALE, supra note 37, at 429–30, 433 (labeling abortion “unlawful” and a “great crime” in the limited administrative-medicinal and post-quickening contexts, respectively).
[53] Peoples v. Commonwealth, 87 Ky. 487, 493 (Ky. Ct. App. 1888).
[54] Dobbs, 142 S. Ct. at 2251; see id.; 1 HALE, supra note 37, at 429–30. Part Two will address why Hale’s limited condemnation of abortion does little to advance the Court’s argument.
[55] See Dobbs, 142 S. Ct. at 2249–51 (noting the purported positions of select common-law authorities, citing a work collecting English cases—none of which explicitly deemed abortion illegal and largely involved non-consensual abortions—briefly discussing Rex v. Beare, referencing a collection of cases that contained additional factors or non-consensual abortions, and discussing a “proto-felony-murder rule” that only confirmed the illegality of accidentally killing a woman while performing an abortion).
