At common law, as explained by authorities such as Coke and Blackstone, life was deemed legally to begin only when a pregnant woman sensed the fetus stirring in her womb. Accordingly, the common law did not prohibit abortion prior to that point. This common-law principle relied heavily on the woman's experience, as only she could know when this stirring - commonly called quickening - had occurred. Early American law enunciated and followed this same female-centric principle: abortion was not recognized or prohibited until a pregnant woman felt the fetus move.

The common-law principle, under which abortion was not criminal before a woman recognized quickening, reflected a legal tenet, not a moral judgment. As Blackstone explained in his Commentaries on the Common Law, life “begins in contemplation of law a[s] soon as an infant is able to stir in the mother's womb.” 1 St. George Tucker, Blackstone's Commentaries 129 (William Young Birch & Abraham Small eds. 1803) (hereinafter, “Blackstone”). Blackstone's view echoed that of prior authorities, including Coke, Fleta, and Hale. See, e.g., Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes 50 (E. & R. Brooke 1797) (explaining in discussing what constituted murder that, “[i]f a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby *6 the childe dieth in her body, and she is delivered of a dead childe, this is a great misprison [misdemeanor], and no murder”); Matthew Hale, Pleas of the Crown: A Methodical Summary 53 (P.R. Glazebrook ed., 1972) (1678) (similar); Fleta, in 72 Publications of the Selden Society 60-61 (H.G. Richardson & G.O. Sayles eds. trans. 1955) (similar).

*7 Only the pregnant woman could definitively determine whether terminating a pregnancy at a given time was permissible or prohibited, because only she could detect whether this “stirring” - also known as “quickening” - had occurred.² See Alfred Swaine Taylor et al., A Manual of Medical Jurisprudence 421 (Phila., H.C. Lea, 6th ed. 1866) (“No evidence but that of the female can satisfactorily establish the fact of quickening.”). A woman's perception and recognition of movement signified in the common law that the fetus had an existence separate from hers. For the lawyers and judges announcing and applying this principle, “[i]t [was] not material whether, speaking with physiological accuracy, life may be said to commence at the moment of quickening, or at the moment of conception, or at some intervening period.” Cooper, 22 N.J.L. at 54. That is because, “[i]n contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life.” Id. Accordingly, under the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move.

Blackstone's “works constituted the preeminent authority on English law for the founding generation.” Alden v. Maine, 527 U.S. 706, 715 (1999). James Wilson, who crafted the preamble to the U.S. Constitution, quoted and endorsed Blackstone's words in his seminal lectures of 1790: “In the contemplation of law, life begins when the infant is first able to stir in the womb.” James Wilson, Natural Rights of Individuals (1790), reprinted in 2 The Works of James Wilson 316 (James DeWitt Andrews ed., Chi., Callaghan & Co. 1896).

In practice, this meant that early American law did not recognize abortion before the fetus “stir[red],” see id., which nineteenth-century writers on medical jurisprudence acknowledged could occur as late as 25 weeks, see, e.g., L.S. Joynes, M.D., On Some of the Legal Relations of the Foetus in Utero, Va. Med. J. 187 (Sept. 1856). For example, the Massachusetts Supreme Judicial Court wrote in 1845 that, “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.” Commonwealth v. Parker, 50 Mass. *8 (9 Met.) 263, 265-266 (1845). As it explained, the common law considered “the child [to have] a separate and independent existence” only “when the embryo had advanced to that degree of maturity designated by the terms ‘quick with child,” even though an infant in utero was “regarded as a person in being” prospectively for certain civil law purposes, as Blackstone had clarified. Id. at 266; see Blackstone, supra, at 129. In support, Parker cited Blackstone and Coke, and noted that “the more ancient authorities of Bracton and Fleta” agreed. 50 Mass. at 266. Later cases cited Parker's discussion of the common law as definitive precedent. See, e.g., Smith v. State, 33 Me. 48, 55 (1851); Abrams v. Foshee, 3 Clarke 274, 278 (Iowa 1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell, 78 Ky. at 206; Eggart v. State, 40 Fla. 527, 532 (1898).

Other courts reached the same conclusion. In State v. Cooper, the New Jersey Supreme Court explained that, prior to the enactment of the first English statute criminalizing abortion in 1803, there was “no precedent, no authority, nor even a dictum ***which recognizes the mere procuring of an abortion as a crime known to the law.” 22 N.J.L. at 55. It therefore concluded: “[T]he procuring of an abortion by the mother, or by another with her assent, unless the mother be quick with child, is not an indictable offence at the common law ***. There is neither precedent nor authority to support it.” Id. at 58. And because the common law did not criminalize the procuring of an abortion, it also did not criminalize attempting to do so. Id. The court also rejected the prosecution's claim that such an attempt was an offense against the fetus. “[T]he very point of inquiry is, whether that be at all an offence or not, and whether the child be in esse [in *9 being], so that any crime can be committed against its person.” Id. at 54.

The outlier, Mills v. Commonwealth, 13 Pa. 631 (1850), rejected the quickening distinction only in dicta and then was heavily criticized as having no basis in precedent. In Mills, Pennsylvania charged the defendant with “intent to cause and procure the miscarriage and abortion of” a woman who was “pregnant and big with child,” meaning post-quickening. Id. at 633-634; see supra, n.2. Despite this fact, Mills opined that the common law's approach to abortion “never ought to have been the law anywhere” because any abortion was “the destruction of gestation, by wicked means and against nature.” 13 Pa. at 633. This naturalistic view about what the common law should have been lacked any basis in precedent, and other courts rejected it. Mitchell, 78 Ky. at 206-207.³

Legal treatises likewise consistently enunciated the common-law principle, except when describing statutes that states had enacted to replace it. These treatises echoed Blackstone's view about when life began. And, like Blackstone, these sources explained that the reason for this principle was the legal belief that a fetus was not considered a cognizable life for purposes of the law until quickening. See, e.g., Henry Roscoe, et al., A Digest of the Law of Evidence in Criminal Cases 652 (London, William Benning & Co., 3d ed. 1846) (“A child in the womb is considered pars visce-rum matris [part of the mother's body], and not possessing an individual existence, and cannot therefore be the subject of murder.”); Russell, supra, 424, 553; *10 John A.G. Davis, A Treatise on Criminal Law with an Exposition of the Office and Authority of Justices of the Peace in Virginia 339 (Phila., C. Sherman & Co. 1838); Oliver L. Barbour, The Magistrate's Criminal Law, a Practical Treatise on the Jurisdiction, Duty, and Authority of Justices of the Peace in the State of New York in Criminal Cases 30, 60 (Albany, WM. & A. Gould & Co., 1841). Even Dr. John Beck, who disapproved of abortion, had to acknowledge that “[t]he English law ‘considers life not to commence before the infant is able to stir in its mother's womb.”’ John B. Beck, M.D., Researches in Medicine and Medical Jurisprudence 27 (Albany, E. Bliss, 2d ed. 1835) (quoting Blackstone, supra, at 129).

The few mid-nineteenth century treatises outside this consensus usually relied on the critique voiced in Mills. One was authored by Francis Wharton, who opposed allowing any abortion; he argued that the fetus was as injured a week before quickening as a week after. Francis Wharton, A Treatise on the Criminal Law of the United States 456-457 (Phila., James Kay, Jun. and Bro., 2d ed. 1852). Besides the dicta from Mills, he referred to two other cases. But he cited a statement in Commonwealth v. Demain, which was, as he later conceded, not the court's holding but part of the argument Wharton himself had advanced as counsel in the case. See Wharton, supra, at 455-456; Commonwealth v. Demain, 1 Brightly 441, 443 (Pa. 1846). Similarly, a statement from Regina v. Wycherley, an English case that he said distinguished “quick with child” from “with quick child,” see Wharton, supra, at 457 (citing Regina v. Wycherley, 8 Car. & P. 262, 264 (1838)), offered no legal basis for this distinction. Cooper, 22 N.J.L. at 57; Mitchell, 78 Ky. at 207-208; see supra, n.2. The one other significant treatise *11 that refused to acknowledge that the common law did not prohibit abortion in all stages of pregnancy likewise relied solely on Mills and Wycherley. 1 Joel Prentiss Bishop, Commentaries on the Criminal Law § 386 (1856).

Neither Wharton nor Bishop emphasized fetal protection in critiquing the common law on abortion. Rather, they focused on motives they saw as socially desirable in extraneous ways. Wharton wanted to regulate abortion from “a social and a moral point of view,” but his moral arguments focused on “illicit” sexual activity, not on fetal life. Wharton, supra, at 457. He argued that permitting any abortions to occur would “remov[e] ***the chief restraint upon illicit intercourse,” and thereby undermine “the institution of marriage.” Id. Bishop thought that abortion should always be prohibited because it was “a crime against population” - rather than particularly because it harmed the fetus. Bishop, supra, § 387. In his view, by reducing population growth, which Bishop considered the basis for national growth, abortion depleted national wealth. Id. (reiterating this view).

Contrary to the assertion of an amicus for the State, medieval and colonial cases do not support the view that the common law criminalized all abortion throughout pregnancy. See Dellapenna Amicus Br. 7-13. As noted above, the significant common-law authorities recognized abortion as criminal only in the latter part of pregnancy. See supra, pp. 5-7.

The cases identified from the 1200s-1500s deal with felonious percussio (battery) on a pregnant woman, *12 not abortion. These cases concern unwanted assaults that harmed a woman and endangered or ended her pregnancy. A woman so injured could then bring a private action seeking punishment of her batterer.

These are not “abortion” cases as we understand that term today. Wolfgang Muller, The Criminalization of Abortion in the West 75 (2012) (“[P]rocurement of abortion in the modern acceptance of the term, performed with the consent of the pregnant mother, had never held a place among thirteenth-century appeals and indictments. Adjudication of criminal percus-siones had been the sole concern.”). They focused on the injury to the woman, not the termination of the fetus. Carla Spivack, To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England, 14 Wm. & Mary J. of Women & L. 107, 110 (2007) (“[T]hese cases resemble modern torts and are based on recognition of the injury done to the woman.”).⁴ They do not involve voluntary efforts by a pregnant woman to terminate her pregnancy. See Fleta, supra, at 88 (“A woman may bring an appeal ***for a quickened child in her womb wickedly crushed or wickedly killed by a blow.”).

The few known American colonial cases likewise do not suggest that abortions were criminal throughout pregnancy. These cases involved one individual accusing another of wrongdoing, not a prosecution by colonial authorities for a known crime. For example, one supposed “indictment” from colonial Delaware was merely the standard examination of an unmarried woman to ascertain the father of her stillborn *13 “bastard” child; when she named him, she accused him of beating her during pregnancy, but the examiners did not take further action. In re Stillbirth of Agnita Hendricks' Bastard Child (1679), in Records of the Court of New Castle on Delaware 1676-1681, at 274-275 (1904). A supposed “abortion” in colonial Virginia involved only a contested accusation of one neighbor against another. 7 Susie M. Ames, Am. Hist. Ass'n, County Court Records of Accomack-Northamp-ton, Virginia, 1632-1640, at 29-32, 37, 43 (1973). In a Maryland case, a wife sued her husband after he beat her, causing miscarriage, but the wife later retracted her allegation. Proprietary v. Brooks, 10 Md. Archives 464-465 (1656).

Two other supposed “abortion” cases from the Catholic colony of Maryland targeted religious outsiders who did not adhere to community sexual mores. Proprietary v. Mitchell involved a known atheist suspected of murdering his wife, who also committed multiple sexual offenses with three women, including giving one a potion to end her pregnancy (which nonetheless continued to term). 10 Md. Archives 80-81, 177-186 (1652). He was convicted for several offenses at once, including “murderous intention,” but it is unclear whether that referred to his dead wife or the fetus. Id. Proprietary v. Lambrozo targeted a Jewish doctor who raped his servant and then cohabited with her, impregnated her, aborted the pregnancy, then married her. 53 Md. Archives 387-391 (1663). Once they were married, the former servant retracted her story. Id.

Even if these “cases” were to support the claim that abortion was always criminally prosecuted many centuries ago, the State's amicus has no evidence that *14 these cases were known to Americans in the eighteenth and nineteenth centuries. Nor are we aware of any. Rather, ample historical evidence demonstrates that Americans knew of and followed the common law, which allowed extensive decision-making by a pregnant woman.

The common law continued to govern abortion in America until the 1820s and in some states for considerably longer. The earliest statutes, enacted between 1821 and 1839, were written at the time of state code creation or revision; several simply included abortion drugs in legislation punishing poisonous medicines. See James C. Mohr, Abortion in America: The Origins and Evolution of A National Policy, 1800-1900, at 20-45 (1978). Three states, including Mississippi in 1839, codified the common law when creating a first abortion statute. Eugene Quay, Justifiable Abortion - Medical and Legal Foundations, 49 Geo. L.J. 395, 450, 453, 489 (1961). A surge of sensationalized news reports on women's deaths during abortion later in the 1830s and 1840s spurred states to enact further abortion restrictions.

1. Connecticut was first in 1821, when it included abortion in an anti-poisoning statute. Id. at 435, 453. Abortion-inducing methods in the 1820s (like many other health remedies) typically required ingesting potentially risky plant-derived compounds. Edward Shorter, A History of Women's Bodies 179-188 (1982). Connecticut acted in the wake of publicity surrounding the trial of a local minister who had impregnated a 17-year old and then forced her to ingest an abortion-inducing potion. Report of the Trial of Ammi *15 Rogers, viii-x (Oct. 5-7, 1820). Even so, Connecticut's statute codified the common law. Quay, supra, at 453.

Other states took a different approach. New York revised its criminal code completely in 1828, and incorporated restrictions on abortion. The legislator in charge of the revision worked closely with Dr. T.R. Beck of Albany, who had recently published a work of medical jurisprudence highly critical of the significance of quickening. 1 Theodric Romeyn Beck, Elements of Medical Jurisprudence 202-203 (Albany, Webster and Skinners, E.W. Skinner & Co. 1823). Their collaboration produced the first American law to stipulate explicitly that abortion before quickening was punishable by law. James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America 79-82 (1993). But New York retained the common-law tradition by penalizing abortion before quickening lightly, as a misdemeanor only; abortion afterward was a felony. Quay, supra, at 436. Some other states followed, likewise differentiating penalties when they eventually punished abortion. Many also copied New York's innovation, likely due to Dr. Beck's influence, of allowing abortions if needed to save the mother's life, as attested by two physicians. See id.; Beck, Elements of Medical Jurisprudence, supra, at 277, 201.

*16 2. Up to 1839, only eight states regulated abortion by statute, while the other 18 states retained the common law. See Quay, supra, at 435-437. A surge of sensational stories in newspapers, beginning in the 1840s, changed the situation. Mohr, Abortion in America, supra, at 46-85. Newspapers at the time printed detailed trial reports, including witness testimony. Recently digitized newspaper databases reveal only a dozen individual cases reported between 1820 and 1839, growing to roughly 50 cases during the 1840s, and more than 150 in the 1850s, a crescendo resounding in newspapers across the nation.⁵

Abortion cases became newsworthy when they involved a woman's death, triggering a public inquest. In the large majority of trials reported in newspapers, the coverage focused on the death of the woman, not on the fetus. See, e.g., Ralph Frasca, Legacy of Ignorance: Abortion and Journalism in the Early Republic, in Life and Learning XVI: University Faculty for Life Conference at Villanova University 457 (2006) (observing that “solicitations of public sympathy” for the fetus were “absent from newspapers of the Early Republic”). These cases played an outsized role in shaping public attitudes, given that the circumstances of uneventful abortions were not publicized.

Nearly all trial stories presented the narrative of a vulnerable and victimized young unmarried woman, led astray by an aggressive seducer. Trial reports with sordid details occupied newspaper pages for days or weeks, generating sympathy for the victim far beyond her own locale, since the news traveled widely. The fetus was mentioned only to clarify its gestational age, if necessary. See, e.g., The Death of Sarah Decker, Boston Courier, Oct. 11, 1845, at 2; Trial of Madame Restell, alias Ann Lohman for Abortion and Causing the Death of Mrs. Purdy 5-8, 14-17, New York City, 1841.

*17 As these sensationalized reports became common, states began to enact or alter abortion laws. For example, soon after dozens of newspapers lavished attention on two riveting cases in the late 1830s (in Lowell, Massachusetts and Philadelphia), Maine enacted a statute in 1840 that overrode the common law, punishing anyone who performed an abortion with five years in prison. Mohr, Abortion in America, supra, at 41; Quay, supra, at 478; see also The Trial of Doctor William Graves, N.H. Patriot & State Gazette, Dec. 31, 1838; The Murder Trial in Philadelphia, New-Bedford Mercury, Feb. 1, 1839, at 4.

The Massachusetts legislature likewise acted after Boston's Grand Jury implored them, in the midst of three cases that saturated the Boston news in 1844. Municipal Court, Boston Courier, Sept. 9, 1844, at 2. In two cases, a woman died. Trial of Fenner Ballou and Dr. Alexander S. Butler for the Murder of Maria Aldrich, Boston Daily Times, Jan. 1, 1845, at 2; Dr. Ephraim Whitney Discharged, as also Benjamin Welch and Wife, Boston Daily Times: Police Court, Jan. 1, 1845, at 2. The third case concerned three married women receiving abortions. Municipal Court, Boston Daily Times, Dec. 19, 1844, at 2. In response, Massachusetts made providing an abortion at any stage a misdemeanor, but tied the punishment to the fate of the woman: If the woman died, it became an egregious crime deserving a five- to twenty-year sentence in state prison; if the woman survived, the sentence was only one to seven years in a local jail. Quay, supra, at 481.

*18 By 1859, fifteen of thirty-three states continued to follow the common law: in ten, abortion during any stage of pregnancy was not criminalized by statute;⁶ in five, abortion was criminalized by statute only after quickening.⁷ Of the remaining eighteen states, six continued to bear the imprint of the common law by penalizing abortion differently depending on the stage of pregnancy.⁸

Abortion restrictions accelerated in the 1860s because of a national campaign initiated by gynecologist Dr. Horatio Storer in 1857. In Storer's view, neither the American tradition of the common law nor existing state laws sufficiently protected fetal life: “By the Common Law and by many of our State Codes foetal life, per se, is almost wholly ignored and its destruction unpunished; abortion in every case being considered an offence mainly against the mother, and as such, unless fatal to her, a mere misdemeanor, or wholly disregarded.” Horatio Storer, Criminal Abortion in America 1 (Phila., J.B. Lippincott & Co. 1860).

*19 Even in states that criminalized abortion, convictions were rare.⁹ A Boston physician in 1857 questioned the worth of anti-abortion laws: “The law now is strict and severe against the practice, and the penalty high for the offence; but who ever knew of a conviction under it? ***The difficulty is, in getting the proof ***Medicus, Suffolk District Medical Society, 2 Med. World 211, 212 (1857). Multiple hurdles derailed most cases, including the absence of credible witnesses to a private medical procedure, technical flaws in the pleadings, and questions about the woman's reputation for chastity or truth. See, e.g., Conclusion of the Trial of Dr. Moses P. Clark & Elizabeth M. Clark, Boston Herald, June 26, 1850, at 2; Dr. James H. Smith, New London (CT) Daily Star, April 20, 1852, at 2; Acquittal of Dr. Shove, N.Y. Evening Post, Oct. 19, 1846, at 2.

Storer, perturbed by what he viewed as insufficient or lax statutes and enforcement regimes, launched a campaign to shift the course of American abortion law. Indeed, because of the hold of common-law tradition, Storer's initial efforts immediately met resistance from Boston colleagues. When he proposed criminalizing all abortion and holding women criminally responsible too, several colleagues scoffed, one of them predicting that Storer would “fail to convince the public that abortion in the early months is a crime.” “B.” Dr. Charles Buckingham, The Report Upon Criminal Abortions, 56 Boston Med. & Surgical J. 346, 346 (1857).

*20 But Storer enlisted support from the newly-formed all-male American Medical Association (AMA), playing to certain physicians' fears that “abortions are infinitely more frequent among Protestant women than among Catholic,” and encouraging their disapproval of women shirking the maternal duties for which they were “physiologically constituted” and “destined by nature.” Horatio Robinson Storer, Why Not? A Book For Every Woman 64, 75-76 (2d ed. 1868). Storer's message gained acceptance among certain influential physicians who began to repeat his themes, mounting a calculated and widespread attack on abortion that influenced legislators and additional physicians coast-to-coast.

Despite this organized attack on the common-law reasoning embedded in American history and tradition, many states continued to reflect the common-law tenet that not all abortions were prohibited. As of 1868, nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening. Even in states that prohibited all abortions, the common-law view still resonated among the public. As contemporaneous sources demonstrate, ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy.

Historians widely acknowledge that Storer launched a coordinated national attack on abortion beginning in 1857. See, e.g., Mohr, Abortion in America, supra, at 147-159; Simone M. Caron, Who Chooses? *21 American Reproductive History since 1830, at 21-22 (2008); Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States 1867-1973, at 11-12 (1997); see generally Frederick N. Dyer, The Physicians' Crusade against Abortion (2005). Storer believed that abortions were endangering what he saw as the ideal America: a society of white Protestants in which women adhered strictly to their proper “duties” - marriage and childbearing.¹⁰ While Storer believed that abortion was always morally wrong, two other concerns were inextricable from his condemnation of abortion on that ground: his ethnocentric concerns about rising immigrant birthrates and his blame of married Protestant women for abandoning their primary responsibility of motherhood, thus becoming especially culpable for the falling birth rate.

1. Storer claimed that white, American-born, middle-class married women were increasingly using abortion to limit the size of their families, causing precipitous fertility decline in New England. Horatio Storer et al., Suffolk Dist. Med. Soc'y, Report of the Committee on Criminal Abortion 10 (1857) (insisting that “marriage, where the parties shrink from its highest responsibilities, is nothing less than legalized prostitution”). He viewed these women's actions as unnatural, selfish, and contrary to their “duties” as wives. See Storer, Why Not? A Book For Every Woman, supra, at 64, 74-76. Often he cited his own experience, that within six months he was called to attend fifteen married women suffering from the *22 aftereffects of a botched abortion. Storer et al., Report of the Committee on Criminal Abortion, supra, at 4; Horatio R. Storer, M.D., On Criminal Abortion in America 31 (1860).

In contrast, Storer claimed that immigrants, being mostly Catholic, obeyed the Pope's prohibition of abortion. See Storer, On Criminal Abortion in America, supra, at 38-42. Storer warned that foreign immigrants' large families were poised to overwhelm the white Protestant “American” population. Horatio Robinson Storer, On the Decrease of the Rate of Increase of Population Now Obtaining in Europe and America, 43 Am. J. Sci. & Arts 141 (1867) (hereinafter, “On the Decrease”) (first published as Horatio R. Storer, Contributions to Obstetric Jurisprudence: Criminal Abortion, pt. II, 3 N. Am. Medico-Chirurgi-cal Rev., Original Commc'ns art. I, at 260 (1859)). He stressed that in Massachusetts, “the excess of the births over the deaths, has been wholly of those of recent foreign origin,” which was “explained by the watchful protection exercised by the Catholic church over foetal life.” Id. at 145-146, 155.

Storer bolstered his thematic arguments with a cascade of alarming statistics that he claimed showed an epidemic of abortions and its impact on native-born fertility. The native-born population in the Northeast was indeed producing fewer children, owing to a number of causes. Storer blamed abortion alone. See id. at 145-155; cf. J. David Hacker, Ready, Willing, and Able? Impediments to the Onset of Marital Fertility Decline in the U.S., 53 Demography 1657,1687 (2016). Storer's statistical methods began with poor data and were rife with erroneous assumptions. For example, he scoured vital registers for Massachusetts, New *23 York City, and European cities for recorded stillbirths and premature births (of live infants who soon died), and falsely claimed that an accelerating increase in these numbers was due to criminal abortion, when in fact it was due to differing practices in categorizing infant mortality. Fourteenth Report to the Legislature of Massachusetts, Relating to the Registry and Returns of Births, Marriages, and Deaths in the Commonwealth for the Year Ending December 31, 1855, at 98, 106 (1857); Annual Report of the City Inspector of the City of New York for the year ending December 31, 1854, at 3, 8, 10-14, 218 (1855). He also selectively chose data to make comparisons to exaggerate change over time in the frequency of “abortions.” See, e.g., Storer, ON THE DECREASE, SUPRA, at 152-153 (“[T]he frequency of abortions ***is at least 8 times as great in Massachusetts as in the worst statistics of the city of New York.”). Although his numerical data were invented and inaccurate, they covered page after page of his writings and appeared to be unassailable, encouraging readers to believe his shocking conclusions. See, e.g., Montrose A. Pallen, M.D., Foeticide, or Criminal Abortion, 3 Med. Archives 193, 198 (1869) (“such a paper as ***Storer's *** [shows] a national crime of abortion!”); Andrew Nebinger, M.D., Criminal Abortion: Its Extent and Prevention 5-8 (1870) (noting Storer's “figures of unquestioned and unquestionable correctness” and “where the foreign population abounds, we find an abundance of children”).

With these themes and alarming statistics in hand, Storer took his agenda to the AMA. He convinced the nascent organization to sign on to his project, thereby gaining a means to reach other trained male physicians, governors, and legislators nationwide. Storer ghost-wrote a “memorial” that was signed by the AMA *24 president and sent to every governor, urging that laws be made more stringent. See Henry Miller, Memorial to the Governor and Legislature of the State of Rhode Island (1860), reprinted in Caron, supra, app. B. He also ghost-wrote a letter that the AMA sent to every medical society urging it to pressure its state's governor and legislature. See id.; Address of Henry Miller, M.D., 13 Transactions of the Am. Med. Ass'n 55, 56 (1860) (thanking Storer for “preparation of the Memorial as well as of the Address ***to ***State Medical Societies”).

The mailings sent to all of them included Storer's statistical article (introduced by the cover letter as “reliable, and not to be controverted”) and a model statute that made procuring, aiding, or attempting miscarriage on “a woman” - with no mention of pregnancy - a felony, unless advised by two consulting physicians to be “necessary to preserve the life of such woman, or of her unborn child.” Caron, supra, apps. B & C (reprinting model law). The model act criminalized equally a woman seeking abortion or operating on herself, and also punished advertisements or mailings implying abortion services. Caron, supra, app. C. Consistent with Storer's paternalistic and ethnocentric concerns, his model allowed the court to increase the punishment for an aborting woman if she were married. Id.; Dyer, supra, at 77-78.

2. Thanks in large part to his influence over the AMA, Storer's paternalistic and anti-immigrant arguments reached doctors and legislators nationwide. Positive reviews of Storer's writings reiterated his emphases, including “the comparative size of families now and formerly,” “the pecuniary success of known abortionists,” and the “constantly increasing demand *25 for abortion-producing nostrums.” D.F. Condie, Review 19, 78 Am. J. Med. Scis. 465 (1860) (reviewing Horatio R. Storer, M.D., On Criminal Abortion in America (1860)). Colleagues persuaded by Storer broadcast his statistics, his contemptuous portrayal of women, and his anti-immigrant fears. See, e.g., Editorial, Criminal Abortions, 14 Buff. Med. J. 247, 247-251 (1858); Criminal Abortion, 62 Boston Med. & Surgical J. 65 (1860). Storer's claims about “native stock” ceding population growth to “foreigners” traveled intact to the West Coast, where a leader in the California State Medical Society, Dr. Henry Gibbons Sr., thundered against “feticide,” warning of the prospective “deterioration of race ***demonstrated by [Storer's] statistics.” Henry Gibbons, Sr., M.D., On Foeticide, Transactions of the Cal. State Med. Soc'y 4-5 (pamphlet 1878).

*26 Certain doctors seemed to welcome the opportunity to chastise women for abandoning their maternal roles and seeking other opportunities. See D.H., On Producing Abortion: A Physician's Reply to the Solicitations of a Married Woman to Produce a Miscarriage for Her, 17 Nashville J. Med. & Surgery 200, 201 (1876) (“[Y]ou have no right to attempt to escape from what you knew beforehand is one of [marriage's] most natural consequences, and a duty you tacitly promised the State * * *.”). A minority of women of the respectable Protestant sort that Storer reproved for abortion were indeed seeking higher education, professional employment opportunities, and even the right to vote. See generally Alison M. Parker, Articulating Rights: Nineteenth-Century American Women on Race, Reform, and the State (2010). There was much controversy over whether higher education and similar pursuits for women compromised their “natural” role as mothers. See Pallen, supra, at 205 (“Woman's rights and woman's sphere are, as understood by the American public, quite different from that understood by us as Physicians, or as Anatomists, or Physiologists.”); G.L. Austin, M.D., Perils of American Women 143 (1883) (“[W]oman must realize that she shines and thrives best in the home.”).¹¹

*27 Storer's efforts had mixed success. In the initial wake of his campaign between 1860 and 1868, five states enacted new statutes criminalizing abortion;¹² and another five strengthened existing statutes.¹³ More states responded in the 1870s and 1880s. See Mohr, Abortion in America, supra, at 200-230. Storer's direct influence can be seen in legislative committees citing his demographic claims and his views on married women to justify strengthening anti-abortion laws. For example, Ohio cited Storer's writing in support of “proper legislation” to suppress abortion, noting that women “avoiding the duties and responsibilities of married life ***are, in effect, living in a state of legalized prostitution” and would leave “our broad and fertile prairies to be settled only by the children of aliens.” Additional Report from the Select Committee To Whom Was Referred S.B. No. 285, 63 J. of Senate of State of Ohio, app. 233, 235 (1867). A Storer-inspired address to the Vermont Medical Society in 1867 resulted in the group pressing the legislature to adopt overall lengthier punishments for abortion, and longer still if the woman died. L. C. Butler, M.D., The Decadence of the American Race, as Exhibited in the Registration Reports of Massachusetts, Vermont [and Rhode Island]; The Cause and the Remedy, 77 Boston Med. & Surgical J. 89, 96-99 (1867); see Bills Approved and Signed by the Governor, Middlebury (VT) Register (Dec. 3, 1867), at 2. The Medical Society of Rhode Island, upset about a local influx of immigrants, similarly drew on Storer's nativ-ist writings in drafting a bill against abortion and lobbying for it in the state legislature. Caron, supra, at 36-37.

In spite of this campaign, the common-law view per-sisted in American law and popular opinion. By the time the Fourteenth Amendment was ratified in 1868, nearly half of the states retained some vestige of the common law: in eleven states abortions remained legal before quickening;¹⁴ and of the twenty-six remaining states, seven imposed a lesser punishment during that stage.¹⁵

*28 The campaign, too, converted more legislators than ordinary citizens. For example, after an abortion trial in Massachusetts in 1867 resulted in a hung jury, the Northampton Free Press noted that “public sentiment in Hampden county does not deem abortion a crime at all ***and possibly public sentiment is just about the same everywhere else as in Hampden county.” Springfield Daily Republican, Dec. 27, 1867, at 4. Doctors continued to observe the persistence of common-law reasoning among their patients. One doctor, for example, concluded in 1870 that “many individuals, otherwise learned, ***do not look upon abortion as foeticide.” Pallen, supra, at 197. He further noted (among other instances) that a married woman's pastor told her that abortion prior to quickening was “no crime, because the child was not alive.” Id. Numerous other doctors reported to the Philadelphia County Medical Society that their women patients “almost universally” believed that a pregnancy was not meaningfully real “until the fourth and half-month.” Nebinger, supra, at 19.

Abortions continued to take place, legally in some states and illegally in others. Not all physicians participated in the campaign organized by Storer, and *29 some continued to provide abortions. See, e.g., Pallen, supra, at 204 (noting that “[a]mong the medical fraternity” there are doctors “who are thought by the public to be upright, honorable men,” and who provide abortions); Infanticide, Chi. Times, Dec. 12-24, 1888; Reagan, supra, at 50-57 (revealing that many doctors with standard medical degrees, members of medical societies, remained willing to perform abortions or supply referrals).

In the years following the campaign, low prosecution and conviction rates persisted. Several doctors publicly commented on the rarity of convictions of abortion providers. See, e.g., Pallen, supra, at 203 (“[N]o one within my recollection has ever been punished for it.”); O. E. Herrick, M.D, Abortion and its Lesson, Mich. Med. News (Jan. 10, 1882) (“Conviction is the exception, instead of ***the rule.”). Police investigators and prosecutors often concentrated only on abortions in which a woman died, especially if she made a dying declaration that named the abortion provider. Nonetheless, in Chicago in the beginning of the twentieth century, coroners' inquests outnumbered cases going to grand juries by 5 to 1 on the average, and only a small fraction of cases proceeding to trial obtained conviction. Reagan, supra, 116-130; see also Mohr, Abortion in America, supra, at 230-237. A Chicago Medical Society symposium of 1904 emphasized the ineffectiveness of abortion law: Dr. C. S. Bacon, among others, lamented how difficult it was to obtain sufficient evidence of abortion unless the woman died - and even then, her family would cover it up. C. S. Bacon, M.D., The Duty of the Medical Profession in Relation to Criminal Abortion, 7 Ill. Med. J. 18, 18-24 (1905).

*30 Thus even while abortion became more stringently criminalized, the ultimate object of the physicians' campaign was foiled by persisting popular belief that not all abortions were criminal and decision-making over terminating pregnancies belonged to pregnant women. Reagan, supra, at 21-36; see also Nebinger, supra, at 16 (“[M]any ladies of elevated standing in society and even in the church, are in the habit of having abortion produced without the [least] hesitancy as to any impropriety in the procedure.”).

In sum, despite coordinated efforts to undermine the common-law reasoning embedded in American history and tradition, the physicians' campaign did not succeed in displacing longstanding common-law principles. Many state statutes retained the common-law approach. Even where states prohibited abortion, common-law reasoning resonated in public opinion, deeply affecting the practice of abortion. These historical findings confirm that Roe's central conclusion was correct: American history and traditions from the founding to the post-Civil War years included a woman's ability to make decisions regarding abortion, as far as allowed by the common law.

For the foregoing reasons, the decisions below should be affirmed.

Respectfully submitted,

Jessica L. Ellsworth

Kaitlyn A. Golden

Alicia J. Paller

Danielle Desaulniers STEMPEL

Hogan Lovells US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

jessica.ellsworth@hoganlovells.com

September 20, 2021

Amicus Joseph W. Dellapenna is a retired professor of law who has taught at law schools in the United States and abroad for 53 years, primarily at Villanova University in Pennsylvania. He is the author of Dispelling the Myths of Abortion History (Carolina Academic Press 2006), the only study to combine the medical (technical), social, and legal history of abortion in England and America from the birth of the common law to create a richly textured account of abortion practice and law. Amicus has previously submitted briefs on abortion law and history to this Court in Webster v. Reproductive Health Services (1989), Hodgson v. Minnesota (1990), and Planned Parenthood v. Casey (1992). His interest is to bring the Court's attention to the erroneous history on which Roe v. Wade (1973) was based, setting before the Court an accurate account of the common and statutory law relating to abortion in England and America across eight centuries, demonstrating that there is no long-term legal or social tradition of acceptance of abortion that could form the basis of a constitutional right to choose abortion.

Amicus has written, either as sole author or as major contributor, The Encyclopedia of Water Law (Edward Elgar 2021), Waters and Water Rights (LexisNexis 2020), and The Evolution of the *2 Law and Politics of Water (Springer 2009), as well as other books, articles, and chapters. The first edition of Suing Foreign Governments and Their Corporations (BNA 1988; 2d ed. 2003) was cited by both the majority and the dissent in Saudi Arabia v. Nelson, 507 U.S. 349 (1993), and that book and other of his works have been widely cited in lower courts. Amicus also led the drafting of The Regulated Riparian Model Water Code (ASCE 2018), The Appropriative Rights Model Water Code (ASCE 2007), and The Berlin Rules on Water Resources (Int'l Law Ass'n 2004).

The rule of law requires judicial decisions to have a basis other than the judge's personal predilections. This Court has found that basis in historical traditions regarding the relevant behavior.³

This Court in Roe recognized that the historical record on abortion is highly relevant to the constitutionality of abortion laws, devoting more than half of its opinion to that topic.⁴ In that discussion, it recognized that abortion has always been, and now is, treated differently from other issues of reproductive privacy.⁵ Thus, abortion's historical tradition is highly relevant to determining the constitutional power of states to regulate or prohibit abortion, including prior to viability.

The Roe majority, relying on tendentious articles, *4 concluded that “it now appear[s] doubtful that abortion was ever ... a common law crime”⁶ and that American abortion statutes were not generally enacted until after the Fourteenth Amendment's adoption.⁷ Both conclusions are manifestly wrong. A careful historical review makes clear that abortion and other killings of unwanted children were always prohibited in the common law for the purpose of protecting the life of the unborn child.

The majority in Roe relied uncritically on the work of Cyril Means, Jr., who was then general counsel for the National Association for the Repeal of Abortion Laws (NARAL).⁸ Means distorted abortion precedents and statutes and ignored the larger social *5 and technological context in which they were grounded. Abortion advocates also now rely on the work of historian James Mohr, as expressed in the “Historians' Briefs” in Webster and Casey.⁹

These histories of abortion are advocacy pieces with a highly selective examination of the evidence to support a partisan and distorted reading. Mohr and the authors of the “Historians' Briefs” present the law of abortion as a story of oppressors and oppressed, a story unsupported by the increasingly clear history of the law of abortion. Their project relies on recovering “lost voices”¹⁰ of mute classes who, by definition, find no or scant evidence in the historical record. This enables the advocates to discount attitudes that do appear in the historical record and that contradict their preferred theories, regarding them as aberrational, rather than representative.

Recovering “lost voices” allows one to infer at will what the “true” attitudes were. Yet, if the public attitudes of formal, legal institutions did not represent the true values of society, why did those institutions express themselves in such terms, and why did those supposedly unrepresentative terms *6 continue despite major changes in social and political structures spanning more than seven centuries? The “lost voices” project also fails to recognize that the Constitution is a legal document. Ultimately, legal traditions must inform the Constitution; social, medical, and moral contexts usefully illuminate legal traditions, but they are not an independent source of legal rights or duties.

Finally, authors of the Webster Brief admitted deliberate distortions of the historical record to achieve allegedly more effective advocacy. Sylvia Law, counsel of record on the Webster Brief, candidly lamented the authors' “serious deficiencies as truth-tellers.”¹¹ James Mohr does not “consider the brief to be history, as I understand the craft.”¹² Historian Estelle Freedman, who also worked on the brief, signed the brief despite knowing that her own research demonstrated a very different story, explaining her decision in a passage of remarkable candor:

I realize that for the practical purposes of writing this brief, it was necessary to suspend certain critiques to make common cause and to use the legal and political grounds that are available to us.¹³

*7 The difficulties these admissions present are not resolved simply by asserting, as do the other two lawyers on the Webster Brief, that all discourse is necessarily political and that any distinction between scholarship and distortion is illusory.¹⁴

The Casey Brief was written by the same attorneys, relying on the same historians, with only small changes of emphasis. These briefs attempted to buttress the twin claims on which the Roe majority hinged its opinion: that abortion (1) has always been a common social practice and (2) was a common-law liberty before the Civil War. Both of these claims were demonstrably false when Roe was written, and further scholarship has continued to undercut those claims.¹⁵

Despite the relative unpopularity of abortion techniques to rid oneself of an unwanted child due to the serious risks of abortion treatments to the *8 mother, common-law indictments and appeals of felony for abortion are recorded as early as 1200.¹⁶ While the terse records often do not indicate the outcome of the proceedings,¹⁷ the many records indicating punishment¹⁸ and judgments of “not guilty” rather than dismissal¹⁹ prove that the indictments and appeals were valid under the common law. Means was simply wrong to assert that only two cases dealt with abortion before 1600 and that the courts in both cases doubted whether abortion was a crime.

In the first case he cited, the 1327 case of Rex v. de Bourton,²⁰ Means (and the Roe majority²¹) relied on a faulty text, and even the faulty text did not support Means' highly partisan analysis. Bourton was charged with beating a woman, causing one *9 twin to be born dead and the other to die shortly after birth, and he apparently was released on bail to answer for a different charge. The full record reveals the case actually to have been a dispute over whether the offense was bailable, and not over its criminality. In the end, the charges were not dismissed, but he was pardoned, which also demonstrates that abortion was a criminal offense.²²

In the 1348 case of Rex v. Anonymous,²³ the second case Means cited, the defendant escaped conviction for killing a child in the mother's womb for the dubious reason that the indictment failed to state a baptismal name for the victim²⁴ and because it was impossible to know if the defendant had killed the child. In both Bourton and Anonymous, the issues were procedural and evidentiary, not substantive. Bracton, writing in the thirteenth century, also declared abortion (if the child were “formed or animated”) to be criminal homicide.²⁵

Cases in the sixteenth century clearly held abortions to be crimes. A coroner's inquest held *10 death by abortion to be “felonious suicide.”²⁶ Accusing a woman of offering abortifacients to another supported an action for slander, as such words were sufficient grounds to require a judicial bond for good behavior.²⁷ A woman was executed for abortion by witchcraft.²⁸ A woman was “presented” by a coroner's jury for procuring her own abortion.²⁹

Two sixteenth-century writers on criminal pleadings, Staunford and Lambard, denied that abortion was a felony.³⁰ Yet a formbook, with four editions from 1506 and 1544, included a form indictment for abortion by physical assault on the mother.³¹ Staunford and Lambard were wrong if they intended their statements broadly, but their statements most likely reflected that they thought abortion was a crime less than a felony or, even more likely, that abortion properly belonged before a court other than the Queen's Bench.

Sixteenth-century legal activity directed at abortion involved the secularization of ecclesiastical *11 jurisdiction.³² Ecclesiastical judicial activity directed at abortion declined during the Reformation, and common-law courts then took full responsibility for abortion.³³ By the seventeenth century, legal activity regarding abortion was well established.³⁴ In 1601, two Justices of the Queen's Bench in R. v. Sims³⁵ held an abortion in which a child died after its live birth to be murder on grounds that the birth and subsequent death of the child allowed proof of the cause of death. In 1602, in R. v. Webb,³⁶ a woman apparently was saved from punishment for self-abortion only by a general pardon. And Sir Matthew Hale held that the death of a mother from an abortion was a felony homicide.³⁷ Courts in many other seventeenth-century cases treated abortion as *12 a crime.³⁸

Sir Edward Coke, often called the “Father of the Common Law,” had argued R. v. Sims as Attorney-General and discussed the case in his Third Institute,³⁹ generalizing from it a principle that abortion after quickening was “a great misprision [serious misdemeanor], and no murder” if the child died in the womb, but murder if the child died after its birth. Coke's proposition for some time was accepted virtually without question.⁴⁰

Coke did not cite available precedents for his conclusions,⁴¹ but the key point here is that he identified abortion as a common-law crime. Means dismissed Coke's statement as a “masterpiece of perversion,”⁴² but he did not grapple with the mountain of evidence that supported Coke's conclusion.

Most abortion cases before 1700 involved crude physical batterings of the mother, often to her serious injury or death (injury techniques).⁴³ The remaining abortions were induced by “noxious potions” that were nearly as deadly as the batterings (ingestion techniques).⁴⁴ Such ingestion and injury techniques could be effective only with intense pain and a risk of death or permanent injury. Voluntary abortions were rare when the techniques available were often tantamount to suicide.⁴⁵

*14 The unpopularity of injury techniques with women hardly needs demonstration. And, while we cannot know all potions available in medieval England, surveys of the medical literature there and in medically similar societies show that the potions ingested for an abortion were either ineffective or highly dangerous.⁴⁶ For example, savin (juniper), the abortifacient most widely reported in medieval English sources, works by undermining the woman's health generally so she cannot sustain the pregnancy, all too often enfeebling her to the point of death.⁴⁷

The Roe majority accepted the assertion of some historians that abortion was available through other, safer methods.⁴⁸ Representative of them is John Riddle, who attempted to prove this supposition in his 1992 work,⁴⁹ claiming that doctors and midwives during Roman and medieval times knew and used many safe and effective means to procure abortions. To do so, Riddle employed a pharmacologist who *15 strongly and publicly disagreed with Riddle's conclusions.⁵⁰ Riddle himself admitted that his reconstructions of ancient abortifacient recipes were based on uncertain identifications of herbal ingredients and admonished people not to use them because “possibility for error is too great and the risk might be considerable.”⁵¹ Riddle also admitted that the drugs had, at best, highly varied success rates, that success rates approaching 100 percent were “seldom the case,”⁵² and that “[s]ome of the plants ... had marginal value, if any.”⁵³ And Riddle reports that only a little over half (56 percent by the most favorable study) of the drugs he lists have shown any abortifacient or contraceptive effects.⁵⁴ Riddle and others like him are reduced to arguing that, because certain potions were used for centuries in the hope of obtaining an abortion, they must have worked.⁵⁵ Of course, he never asks how innumerable other discredited medical practices, such as bleeding, persisted for centuries, procedures that helped bring about more deaths than cures. Indeed, nineteenth-century courts were well aware of the dangers these *16 potions still posed.⁵⁶

Many still cling to the belief that medically primitive cultures, including medieval England and colonial America, had unrecorded abortion techniques that were safe and effective. If so, why would such folk medicines abruptly disappear in the nineteenth century in favor of highly dangerous intrusion techniques? The answer is that this belief is a fable.⁵⁷ Before the nineteenth century, the usual ways to rid oneself of an unwanted child were infanticide and abandonment (which often amounted to the same thing).⁵⁸

Infanticide was a frequent crime when abortion was still rare.⁵⁹ Royal courts actively punished those convicted of infanticide and denied benefit of clergy to those accused of the crime.⁶⁰ The earliest known *17 regulations of midwives, published in 1512, were adopted to prevent the killing of infants.⁶¹ Parliament enacted ever more stringent statutes prohibiting infanticide, culminating in “An Act to Prevent the Destroying and Murdering of Bastard Children,” legislation that conclusively presumed murder from concealment of the death of a child in order to hide its birth.⁶²

Only the emergence of abortion as a real alternative to infanticide reduced the incidence of infanticide, making it a lesser legal problem. The intimate relationship between abortion and infanticide was demonstrated by Lord Ellenborough's Act, the first English statutory prohibition of abortion, which in its very next section lessened the penalty for concealment of the death of a newborn,⁶³ making explicit the link between abortion and infanticide and recognizing their shifting rates by giving abortion primacy.

The English colonists brought the common law of abortion with them. In just one colony, Maryland, three prosecutions for criminal abortion arose before *18 1660.⁶⁴ Two of the defendants escaped conviction in their cases because, before trial, they married (and thereby disqualified) the principal witness against them. The third was convicted of attempted murder, apparently because of a failure to prove the cause of death for the stillborn child.

Prosecutions for abortion also arose in other colonies. A Rhode Island woman received 15 lashes for fornication and attempted abortion.⁶⁵ Indictments also survive from Delaware⁶⁶ and Virginia.⁶⁷ And a 1716 New York municipal ordinance forbade midwives to aid or counsel abortion.⁶⁸

While abortion and infanticide do not seem to *19 have been common in colonial America,⁶⁹ more colonial legal activity, just as in England, was directed against infanticide than abortion.⁷⁰ Still, one of the few secondary sources of the period concluded that the common law prohibiting abortion was part of New York law.⁷¹

Abortion statutes were enacted throughout the nation and the world in the nineteenth century.⁷² Roe's majority viewed this, and the accompanying increase in prosecutions, as resulting from Victorian sexual attitudes, fears for maternal health, and *20 concern for fetal life.⁷³ Means insisted that only fear for maternal health motivated the legislation.⁷⁴ But neither explained why these reasons became weighty only in the nineteenth century. Mohr and his associates, while recognizing a “moral prejudice” favoring the life of unborn children,⁷⁵ argued that the central reason for the statutes was to ensure the dominance of the newly organized allopathic physicians over competitors, especially midwives, and to a lesser degree to reverse falling birthrates among the native-born middle classes and to ensure paternal dominance in the household.⁷⁶ These reasons, they asserted, were sufficient, without concern over fetal life, to overcome allegedly strong public support, among men as well as women, for the free availability of abortions.⁷⁷

The actual reasons are quite different and rooted in technological change. The first report of an intrusion technique in England was in a case in 1732.⁷⁸ A woman was sentenced to the pillory and to *21 three years in prison for inserting an iron rod into a second woman's womb, inducing an abortion at less than 14 weeks of gestation (well before viability and quickening).⁷⁹ Similar prosecutions arose in 1781 and 1803.⁸⁰

Abortion by intrusion remained highly dangerous; the inserted object served as a highway for infection, and the procedure often was sufficiently painful to induce life-threatening shock.⁸¹ Death was not as certain, however, as with injury and ingestion techniques. Intrusion quickly became the technique of choice.

Lord Ellenborough himself spoke to the sudden upsurge in abortions in the preamble to the eponymous act: It concerned “certain ... heinous offenses ... of late also frequently committed ....”⁸² The drafters of the first Pennsylvania abortion statute made a similar observation.⁸³ The Maryland Court of Appeals made the point even more directly in the 1901 decision of Worthington v. State:

*22 It is common knowledge that death is not now the usual, nor, indeed, the always probable, consequence of an abortion. The death of the mother, doubtless, more frequently resulted in the days of rude surgery, when the character and properties of powerful drugs were but little known, and the control over their application more limited. But, in these days of advanced surgery and marvelous medical science and skill, operations are performed and powerful drugs administered by skillful and careful men without danger to the life of the patient. Indeed, it is this comparative immunity from danger to the woman which has doubtless led to great increase of the crime, to the establishment of a class of educated professional abortionists, and to the enactment of the severe statutes almost everywhere ...⁸⁴

Abortion prohibitions almost invariably were enacted in a general codification of common-law crimes,⁸⁵ suggesting that the statutes were not thought to change the law, but to affirm it. Moreover, all nineteenth-century surgery was dangerous for the same reasons as beset intrusion abortions (infection and shock), yet only for abortion were social or other pressures likely to induce someone to undergo the procedure despite risk to life or limb, indicating that intrusion abortions were just as criminal as either *23 injury or ingestion abortions and that abortions were criminal regardless of the stage of pregnancy. As further discussed in part II infra, the statutes solemnly reaffirmed the criminality of abortion in the face of technological innovations that made it safer to perform.⁸⁶

The nineteenth century saw a steady broadening of abortion statutes to reach all abortions, regardless of the technique used or the stage of pregnancy, with a number of states including punishment for the mother.⁸⁷ This broadening *24 suggests, as contemporary courts generally held, that protection of fetal life was the major purpose of the statutes.⁸⁸ Many religious and social leaders also supported treating abortion as a crime.⁸⁹ Only by impugning the integrity of innumerable social and professional leaders can one argue that protection of unborn children from abortion was not a significant concern.

Historians favoring abortion rights would have us believe that nineteenth-century abortion statutes were adopted as instances of male oppressors subjugating oppressed females, with doctors usurping the market for midwives and husbands dominating their wives in their home life.⁹⁰ This fanciful history is refuted by the stance of nineteenth-century feminists; even the most militant and well-known, including Susan B. Anthony and *25 Elizabeth Cady Stanton, were adamantly opposed to legal abortion.⁹¹ This attitude continued among feminists into the twentieth century, with Margaret Sanger initially advancing her abhorrence of abortion as a major reason for founding what was to become Planned Parenthood Federation.⁹²

Feminist abhorrence of abortion arose because the feminists viewed abortion as the killing of a child. Indeed, Stanton entitled her article published contemporaneously with the adoption of the Fourteen Amendment, “Child Murder.”⁹³ In contrast to their antipathy to abortion, the nineteenth-century feminists supported legal access to contraception because it did not involve the killing of a child.⁹⁴ Even where contraception was illegal, the penalties for abortion were harsher, again recognizing the basic difference.⁹⁵ As the story of the early feminists demonstrates, nineteenth-century legislatures responded to a widely shared consensus that abortion was the taking of human life and, thus, far different from contraception. This history provides no support whatsoever to the manufactured claims of advocacy pieces such as the Means articles *26 on which the Roe majority and the “Historians' Briefs” filed in Webster and Casey relied so heavily.

The claim in Roe that American abortion statutes were not generally enacted until after the Fourteenth Amendment's adoption is inaccurate.⁹⁶ That a unique human life begins at conception was established scientifically by the early 1800's.⁹⁷ An English court promptly interpreted the earlier statutory term “quick with child” to mean conception, rather than the felt movement of the child within the womb, returning to the original understanding of that term.⁹⁸

*27 After these scientific developments in the early 1800's, many states revised their abortion statutes to clarify that, at whatever stage of pregnancy, whether before or after quickening, abortion was a crime that involved the taking of a human life.⁹⁹ The American Medical Association unanimously adopted in 1859 a committee report that called for protection of fetal life because of the “independent and actual existence of the child before birth, as a living being.”¹⁰⁰ Similarly, the Medical Society of New York in 1867 “condemned abortion at every stage of gestation as ‘murder.’ ”¹⁰¹ All of this was well known when the Fourteenth Amendment was ratified in 1868.¹⁰²

American jurisdictions followed suit, both in statutes and decisional law. The nineteenth-century evolution of the statutes underlined that they were crafted to protect human life. By 1900 all states and territories uniformly made abortion a serious crime (except to save the life of the mother).¹⁰³ The large majority of the statutes referred to the fetus as a child. The statutes of 30 states did so by 1868, as well as those of seven territories and one nation (all of which later became states). That of Connecticut is *28 illustrative:

That any person with intent to procure the miscarriage or abortion of any woman shall give or administer to her, prescribe for her, or advise, or direct, or cause or procure her to take, any medicine, drug or substance whatever, or use or advise the use of any instrument, or other means whatever, with the like intent, unless the same shall have been necessary to preserve the life of such woman, or of her unborn child, shall be deemed guilty of felony, and upon due conviction ... [pay a fine up to $1,000 and suffer imprisonment of one to five years].¹⁰⁴

The Pennsylvania Supreme Court in 1850 held that the common law supported an action for abortion at any stage of gestation: “the moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated.”¹⁰⁵ The state legislature in 1860 followed this lead, statutorily criminalizing abortion of “any woman, pregnant or quick with child.”¹⁰⁶ Some states, as illustrated above, removed any ambiguity regarding quickening by defining an unlawful abortion as involving a *29 woman “pregnant with a child”¹⁰⁷ or “any woman then being with child.”¹⁰⁸ Similarly, Texas defined the offense as to “destroy the vitality or life in a child, in a state of being born, and before actual birth ....”¹⁰⁹

Quotes could be multiplied, but the conclusions are obvious: (1) with the advance of medical knowledge, judges and legislators in the 1800's clarified that they understood that a unique human life is formed at conception; (2) in light of that knowledge, they considered the fetus a person and acted to protect that child, including eliminating the distinction in some common-law precedents between children that had already quickened (been felt to move in the womb) and those that had not.

The history of abortion law provided no support for Roe's finding of a fundamental right for a mother to abort her fetus prior to viability (and thereafter if her “health” were implicated). The genius of the common law accommodates underlying principles to changing circumstances and knowledge. For abortion, the underlying principle of the common law was that a gestating, living fetus was entitled to protection from being killed by an abortion. The common law recognized growing scientific knowledge and did away with confused earlier precedents that some read as suggesting that a fetus was only alive after being felt by the mother in *30 the womb. Statutory law in the states and territories codified this scientifically informed understanding, consistently with the principal purpose of the common law, by protecting innocent life of unborn children from conception.

The historical predicates on which Roe was based are incorrect. The common law always made abortion illegal, and the main motivation was protection of the lives of unborn children, from the earliest moment of their life in the womb. By the early nineteenth century, medical science had firmly established that a unique human life begins upon conception. With that knowledge, courts and legislators in England and America confirmed that abortion prohibitions applied uniformly during a woman's entire pregnancy, largely eliminating differences in penalties before and after quickening. The common law never made viability a touchstone for the severity of its penalization of abortion. Indeed, viability occurs later than when a child is normally felt to move in the womb by its mother.

Roe should be overruled, with the Court adopting an accurate statement of the common law and the history of abortion. With that established, the viability distinction of Roe should be abandoned and the Mississippi statute should be upheld.

*31 Respectfully submitted

this 29th day of July, 2021,

Frederick W. Claybrook, Jr.

Claybrook LLC

700 Sixth St., NW, Ste. 430

Washington, D.C. 20001

(202) 250-3833

rick@claybrooklaw.com