As published in Newsweek, Opinion Section, by Justin Dyer and Kody Cooper, 11/18/21 AT 6:30 AM EST
The Supreme Court’s abortion jurisprudence is on trial in Dobbs v. Jackson Woman’s Health Organization. The case, which asks the Justices to examine the constitutionality of Mississippi’s 15-week abortion ban, is slated for oral argument on December 1. Mississippi argues that a right to abortion is inconsistent with the original meaning of the 14th Amendment, and that the Court should overturn Roe v. Wade.
In response to the state’s contention, abortion rights advocates have argued that the authors of the 14th Amendment acknowledged a right to abortion prior to “quickening.”
Debates about history have been a feature of abortion litigation since Roe, when Justice Harry Blackmun relied on the discredited historical scholarship of Professor Cyril Means to bolster his claim that American women “enjoyed a substantially broader right to terminate a pregnancy” in the 19th century than they did in the 1970s.
Supporters of abortion rights have tried to bolster Roe’s historical claims by presenting tendentious “historians’ briefs” in major subsequent abortion cases, including Webster v. Reproductive Health Services, Planned Parenthood v. Casey, and now Dobbs. The latest such brief was filed on behalf of the American Historical Association and the Organization of American Historians, both of which boast thousands of members.
While abandoning some of the debunked claims used in previous historians’ briefs, the pro-abortion brief attempts to resurrect Roe’s dubious historical claim. It asserts that “under the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move.” But the attempt amounts to more séance than scholarship.
The truth is that, as legal scholar Joseph Dellapenna has documented, common-law authorities from Bracton to Coke to Blackstone treated the prenatal infant as a human being and abortion as a crime. They also consistently applied the “born-alive rule,” which held that a defendant could be charged with felony homicide for inflicting injuries on a preborn child who was born alive but died thereafter from the injuries.
Hence, abortion was always unlawful under common law, even if evidentiary rules made it unindictable in some circumstances. As Professors John Finnis and Robert P. George note, under both English or American law a murder conviction could be sought for a consensual abortion performed at any stage of gestation that resulted in the death of the mother or a child born alive with the marks of abortifacient activity (regardless of how long the child lived after birth).
Nor is it accurate to assert that the early common law did not prevent or punish attempts to abort before quickening. We have records of common-law prosecutions for attempted pre-quickening abortion that stretch back nine centuries, to an era when severe battering was a preferred method of abortion. Notably, the charges and the convictions in these early abortion cases were for homicide or attempted homicide.
English colonists brought the common law, including its approach to abortion, to America. A 1716 New York ordinance forbade midwives to aid or counsel abortion. Prosecutions for abortion occurred in Delaware, Maryland, Rhode Island and Virginia. John Marshall and Patrick Henry took part in a court examination for a Virginia abortion case in 1792.
What was the role of quickening in abortion law at that time? Some American judges emphasized it as an evidentiary rule—a woman’s feeling of fetal movement provided the first physical proof of life and thus the starting point for any abortion prosecution. But the definition of quickening as felt movement co-existed with an older usage of the term. In this usage, “quick” simply meant alive—as in the familiar phrase the “quick and the dead.” Thus, the term “quick” and the phrase “quick with child” often meant simply pregnant with a living child.
Pro-abortion historians conflate quickening and quick with child. To channel a line from Justice Antonin Scalia, their argument carries “verbal wizardry” past the forbidden land of the sophists and into the realm of arcana.
The earliest common-law authorities did not identify “quickening” as a discrete point in pregnancy before which abortion was licit. Rather, the relevant point for determining when a crime had been committed was when a woman was “quick with child,” that is, pregnant at all. The same is true of Lord Ellenborough’s Act of 1803, the first English statute on abortion. Quickening, when taken to mean felt movement, was relevant, if at all, as evidence of life.
As the scientific and medical evidence of when fetal life begins advanced in the 19th century, British and American doctors urged Parliament and the states to discard quickening as an evidentiary rule and adopt comprehensive protection of prenatal infants as soon as new life begins. State legislatures in the U.S. progressively did so for four decades leading up to the ratification of the 14th Amendment.
The pro-abortion historians acknowledge this fact, but try to dismiss it by impugning Horatio Storer, a leading 19th-century pro-life advocate for broader legislative protections for the unborn, whom they accuse of having constitutionally suspect, nativist motives. This is rather like saying that, since contraception crusader and Planned Parenthood founder Margaret Sanger had constitutionally suspect eugenicist and racist motives, the Supreme Court acted unconstitutionally by siding with the Planned Parenthood League of Connecticut in the landmark case that established the right to privacy. If the argument singling out Storer proves anything, it proves too much.
In short, there is simply no historical basis for the notion that “liberty” under the 14th Amendment incorporated a common-law right to pre-quickening abortion.
Is it any surprise that no scholars have actually signed their names to the latest pro-abortion historians’ brief? Do they know that the brief transmutes historical sources to serve a pro-abortion agenda, and hope to avoid sharing the professional embarrassment experienced by signatories of past historians’ briefs? Prominent abortion historian James Mohr acknowledged that he did not consider the brief he signed in Webster v. Reproductive Health Services “to be history, as I understand the craft.”
Pro-abortion forces are using historical alchemy to attempt to raise the dead pseudo-history that underlay Roe and its progeny. This time, however, a majority originalist Supreme Court is apprised of the cynical game.
Justin Dyer is professor of political science and director of the Kinder Institute on Constitutional Democracy at the University of Missouri. Kody Cooper is UC Foundation Assistant Professor of Political Science and Public Service at the University of Tennessee at Chattanooga.
The views expressed in this article are the writer’s own.