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. It is thus 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 Court in 1891. (2) Therefore, instead of implying that centuries of historical support must predicate recognition of a given right, this series explains 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. The Court drew on two areas of history to reach its “inescapable conclusion” that the right to pre-viability abortion fails the first criterion: English and early American common law, and 19th-century state abortion statutes.

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. (5) 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 exclusively on the 19th century to demonstrate how the Court mistakenly relied on state statutes as evidence that the Fourteenth Amendment does not cover pre-viability abortion under substantive due process. 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 abortion 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. (6) Although quickening refers to a different gestational demarcation than fetal viability, as the two typically occur during the fifth (7) and sixth month of pregnancy, respectively, this series will use the terms interchangeably with respect to supporting Roe’s “central holding,” upheld 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 abortion.” Condemnations of post-quickening abortions alone, for example, are deemed equivalent to only regarding post-viability abortions. 

The second and third distinctions concern self-managed versus administered and procedural versus medication abortions. The former refers to abortions induced by the mother next to those that are not, whereas the latter alludes to abortions performed through the use of instruments compared to those induced 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 ignores the foregoing bifurcations almost entirely. Notably, however, by overruling Roe’s “essential holding,” in relevant part, the Dobbs majority carried the burden of establishing that pre-viability abortion—whether administered or self-managed, procedural or induced through medication—was not “deeply rooted in this Nation’s history and tradition.” Not a single one of the Court’s historical examples helps it do so. Some are irrelevant to abortion altogether. (8) Many solely regard post-viability abortion. (9) Others are constrained to the administrative, procedural, or medication contexts. (10) And the few remaining after considering the distinctions ignored by the Court concern non-consensual abortions or non-authoritative anecdotes that occurred over a century before the Constitution was written. (11) Therefore, regardless of whether the Court’s omission of legally and historically significant distinctions was intentional or merely negligent, this series will explain how they are fatal to its historical analysis and support the constitutional protection owed to pre-viability abortion.

Dobbs v. History, Part One: English Common Law

After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision. (12)

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. 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.” 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 abortion is irrelevant to the legality of pre-quickening abortion. (13) Thus, taken uncritically, the Court’s first common-law argument only regards the supposed illegality of post-quickening, or post-viability, abortions.

Argument II: English Case Law

The Dobbs Court next submitted that “English cases dating all the way back to the 13th century” support the notion that abortion was considered a crime. (14) The Court did not substantively expand on that claim and instead cited two sources that do not convincingly reinforce it. The first source concerns non-consensual abortions or miscarriages (15) and instances where the “main concern was something other than the abortion itself.” (16) Meanwhile, the second source evaluates various cases allegedly concerning abortion that are irrelevant to its legality, for varying reasons. (17)

The Dobbs majority seemed to find persuasive Rex v. Beare (1732). (18) 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.” (19) 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.” (20) The Court also neglected to observe 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. (21) 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 indictability of performing non-consensual abortions under common law. (22)

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. First, Hale is quoted as stating that a physician’s provision of a “potion” resulting in the mother’s death was murder because “it was not given to cure her of a disease, but unlawfully to destroy her child within her.” (23) The Court subsequently used Hale’s 17th-century reference to an abortifacient’s administration as “unlawful[]” to imply that all abortion was illegal. However, Hale plainly avoided condemning pre-quickening abortions in both of his cited treatises, thus limiting the relevance of the “unlawful” comment to the administrative-medicinal context in which he made it. (24)

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.” (25) The Court did not attempt to explain how Blackstone’s statement “explained a way in which a pre-quickening abortion could rise to the level of a homicide,” as it said the proto-felony-murder rule did. 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.” (26) 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. First, as the Kentucky Court of Appeals recognized in 1888, inducing 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. (27) 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 death of “her child” alone. 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 [sic] abortions” in any other circumstance.

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 as a whole: “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[.]” (28) Thus, the proto-felony-murder rule, as described by one of the Court’s sources, only implies the common law’s disapproval of post-quickening administrative abortions and its punishment of those responsible for accidentally killing of a woman while attempting an abortion, neither of which are relevant to the legality of self-managed or pre-viability abortions. (29)

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. (30) Adherence to that standard is not only contrary to the extant substantive due process evaluation, but it is also an intellectually dishonest way to discount the evident legality of pre-quickening abortion under common law. (31) Matthew Hale, for example, albeit appearing to condemn abortion in some contexts, patently declined to condemn pre-quickening abortions. (32) Moreover, a state court of appeals unequivocally held that inducing an abortion was not indictable under common law unless the “child ha[d] quickened” or the mother was accidentally killed. (33) 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]” plainly considered pre-quickening abortions perfectly legal.

Conclusion

The Dobbs Court’s English common-law arguments abjectly failed to prove that pre-viability 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. (34)

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1. 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 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)).
   3. This series will generally avoid disputing the authority of the Court’s sources, no matter how reprehensible or undeserving of authority, to cohere with the premise of rebuking Dobbs on the Court’s terms. 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://perma.cc/AS79-HWAX. 
   4. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2249 (2022) (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. 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 liberty 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. 
   6. See Roe, 410 U.S. at 132–33 (internal quotation marks omitted) (“It is undisputed that at common law, abortion performed before quickening… was not an indictable offense.”). 
   7. See id. at 132 (citing Dorland’s Illustrated Medical Dictionary 1261 (24th ed. 1965)). 
   8. See discussion of a “proto-felony-murder rule” infra note 34.
   9. See Dobbs, 142 S. Ct. at 2249, 2251 (emphasis added) (describing the supposed opinions of certain common law authorities on post-quickening abortions, noting that specific early American legal texts contained statements on post-quickening abortions, and observing that “courts frequently explained that the common law made abortion of a quick child a crime” by the 19th century).
   10. See cases cited infra note 34.
   11. See cases cited infra note 17.
   12. Dobbs, 142 S. Ct. at 2347 (joint opinion of Breyer, Sotomayor, and Kagan, JJ., dissenting). 
   13. See Means, supra note 5, 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). 
   14. Dobbs, 142 S. Ct. at 2249. The Court attempted to obfuscate the quickening distinction early in its historical analysis, describing English case law as “corroborat[ing] the [common law] treatises’ statements that abortion was a crime,” immediately after quoting various common law scholars on the status of post-quickening abortions alone. Id.
   15. See Joseph Dellapenna, Dispelling the Myths of Abortion History 126 (2006). 
   16. Carla Spivack, To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England, Wm. & Mary J. Women & L. 107, 117–18 (2007) (citing id. at 177–78) (noting that in one of the cases Dellapenna cites to support abortion’s illegality, a woman who died while self-inducing an abortion was condemned for committing suicide, not for the attempted abortion); see Dobbs, 142 S. Ct. at 2249.
   17. See John Keown, Abortion 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.
   18. See Dobbs, 142 S. Ct. at 2249–50.
   19. Id. (quoting Dellapenna, supra note 15, at 233–34) (internal quotation marks omitted). 
   20. Dellapenna, supra note 15, at 233–34.
   21. 2 The Gentleman’s Magazine 931 (1732).
   22. Objectors may rush to point out that Ms. Beare was also indicted for inducing an abortion for an unknown woman, with no mention of coercive circumstances. See id. But even without the consent issue, Beare still does not cover self-managed abortions. 
   23. Dobbs, 142 S. Ct. at 2249–50 (quoting Matthew Hale, Historia Placitorum Coronae (“The History of the Pleas of the Crown”) 429 (W.A. Stokes & E. Ingersoll ed. 1847) (1736)). 
   24. Hale, supra note 23, at 429 (not mentioning pre-quickening abortions); see Matthew Hale, Pleas of the Crown 53 (P.R. Glazebrook ed. 1972) (1678).
   25. Dobbs, 142 S. Ct. at 2250 (quoting 4 William Blackstone, Commentaries on the Laws of England 201 (7th ed. 1775)).
   26. Peoples v. Commonwealth, 87 Ky. 487, 493 (Ky. Ct. App. 1888) (emphasis added). 
   27. See id.
   28. Hale, supra note 23, at 454m (emphases added). 
   29. See id.
   30. 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). 
   31. See Glucksberg, 521 U.S. 703, 720–21 (1997). 
   32. See Hale, supra note 23, at 429–30, 433 (labeling abortion “unlawful” and a “great crime” in the limited administrative-medicinal and post-quickening contexts, respectively). 
   33. Peoples v. Commonwealth, 87 Ky. 487, 493 (Ky. Ct. App. 1888) 
   34. 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 or administered abortions; briefly discussing Rex v. Beare; referencing a collection of cases that contained additional factors or non-consensual abortions; discussing a “proto-felony-murder rule” that only confirmed the illegality of accidentally killing a woman while inducing an abortion and indicated Hale’s disapproval of post-quickening administrative abortions).