The actual history of abortion

In 1973, in Roe v. Wade, the Supreme Court struck down the abortion laws of Texas, and in Doe v. Bolton, the Court struck down the abortion laws of Georgia. The combined result invalidated every state law that prohibited abortion.

Harry Blackmun—a Republican-appointed Supreme Court justice—delivered the Court’s opinions. In the leading case, Roe, the Court focused on the history of abortion.

After discussing the English common law, the Court claimed that “it now appear[s] doubtful that abortion was ever firmly established as a common law crime.”

Turning to American law, the Court wrote that “the law in effect in all but a few States until mid-19th century was the preexisting English common law.” The Court then claimed,

It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. (Italics added.)

The Supreme Court relied on two law review articles written by Cyril Means Jr., a New York law professor and supporter of legal abortion. The Court cited the articles seven times.

Notably, when Roe was decided, there were only a handful of known English cases from the year 1800 or earlier that dealt with abortion. And from these few cases, Means concluded that abortion had not been a common law crime in England, and therefore women had enjoyed a common law liberty to abortion in England and America, which lasted until the 1800s.

Yet none of these cases had said that women enjoyed a right, or common law liberty, to abortion.

Furthermore, the leading common law scholars in England—from Henry de Bracton in the 13th century to Edward Coke in the 17th century to William Blackstone in the 18th century—had said that abortion was a crime.

Nevertheless, Means insisted that these great legal minds—the experts on English common law—were all wrong.

More importantly, in Roe, the Supreme Court accepted the “history” of the common law regarding abortion that was provided by Means.

However, since Roe, a number of previously unknown English cases have been published in the United States; many were uncovered by Philip Rafferty, a California lawyer (with translations from the Latin provided by Sir John H. Baker, the distinguished Cambridge University professor of legal history).

Unlike Means, who merely commented on the few cases that were known in the late 1960s and early 1970s, Rafferty actually did what a legal scholar is supposed to do: Rafferty researched the law.

Covering seven centuries, these cases—from the 1200s, 1300s, 1400s, 1500s, 1600s, 1700s, and 1800s—vindicate Bracton, Coke, and Blackstone, while refuting Means. In short, these cases demonstrate that, under English common law, women did not have a “right” or “liberty” to abortion.

Interestingly, before the Supreme Court handed down its decision in Roe, Means was questioned occasionally by other supporters of legal abortion. For example, in 1971, a report by a member of Roe’s legal team harshly criticized his articles. Nevertheless, the report conceded,

Where the important thing is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.

Ultimately, Means provided the Supreme Court with exactly what it wanted: a legal argument in favor of abortion.

The Court’s justices were intent on striking down the state laws that prohibited abortion. Mark Tushnet, a professor at Harvard, was a clerk for then-Justice Thurgood Marshall at the time the Court decided Roe. And Tushnet explained, “All they wanted was to get those laws off the books.”

Now, although the history of abortion that was relied on by the Supreme Court in Roe has been proven false, the actual history of abortion has still not been reviewed by the Court.

In colonial America, abortion was a crime from the moment the settlers first stepped ashore. The English common law—considered to be a right of every English subject—was in force in Virginia, the first colony.

The precise date of the common law’s origin is disputed. In general, there are three different periods that are cited by historians.

The Anglo-Saxon period of England, which spanned from approximately AD 410 to 1066, is cited by some historians. This is the period that followed the Roman occupation of England. (The Anglo-Saxons were mostly a mixture of people from three separate Germanic tribes: the Angles, the Saxons, and the Jutes.)

The Norman conquest of England in 1066 by William the Conqueror, the Duke of Normandy, is cited by other historians. (The Normans were descendants of Vikings who had settled in northern France.)

Nevertheless, the reign of King Henry II of England, from 1154 to 1189, is cited by most historians.

Regardless of which period is cited, the common law was in existence by the 12th century, at the latest.

For the most part, the 12th century also marks the beginning of written legal records in England. Only a limited number of legal cases from earlier times are known, and the reports of these cases are largely from secondary sources. Thus, in 1275, an English statute fixed the year 1189 as the beginning of English legal records; everything before that year was considered “time immemorial” (beyond legal memory).

The earliest known English common law case regarding abortion is Agnes’s Appeal from 1200. However, the report of the case, like many from this period, is not complete, and the outcome is not known. Regardless of the outcome, though, Agnes’s Appeal shows that, from the time that English legal records began, the killing of a child in the womb had been a crime that could be prosecuted.

Furthermore, the outcome is known from a case later that century. In 1281, in Rex v. Code, three men were each convicted of a felony (a serious crime) for killing a child in the womb; the report described the “abortive child” as being about “the age of one month,” and “eight inches long.” Thus, Rex v. Code shows that, even in the early stages of development, the killing of a child in the womb had been a felony.

The status of the English common law at the time the settlers arrived in America is highlighted by a case from 1602, Regina v. Webb. In Webb, a woman had been indicted for her abortion, which contradicts the claim—made by Cyril Means Jr. and cited by the Supreme Court in Roe v. Wade—that women had enjoyed a “common law liberty” to abortion.

Following the Declaration of Independence and American Revolution, the English common law remained in force in each state, except when it was expressly changed by a state government. And to repeat, not a single English common law case had said that women enjoyed a right or liberty to abortion.

The only significant changes in the English common law regarding abortion between 1200 and 1776 were the development of the “born alive” rule and the development of the “quick with child” rule.

By the 17th century, the courts had, in general, accepted the rule that if a child was born alive, but then died, and the child’s body showed the signs of abortion, the crime was murder; otherwise, the crime was a lesser offense. This rule had developed because, at the time, science could not prove the cause of death when a child died in the womb. In other words, science could not prove whether the act of abortion had killed the child.

The quick with child rule had developed to counter this shortcoming of science. The term “quick with child” meant pregnant with a live child. The quick with child rule meant that a prosecutor only had to prove that a woman had been pregnant and that an act of abortion had been committed; the prosecutor did not have to prove that the act of abortion had killed the child. The courts would hold that such an abortion was a misdemeanor.

Basically, the courts used the born alive and quick with child rules to determine whether a particular act of abortion was a felony (murder) or a misdemeanor.

The next significant change in the English common law regarding abortion did not occur until the 19th century, after the adoption of the U.S. Constitution. As Philip Rafferty explained,

In several abortion cases prosecuted during the period 1808–1832, English judges mistook quickening for the definition of the term quick with child. (Italics in the original.)

To clarify, “quickening” and “quick with child” are two different things. At the beginning of the 19th century, as today, the term quickening meant the first movement of the child in the womb felt by the mother. (Notably, in the past, until the movement of the child was felt, there was no reliable way to determine whether a woman was even pregnant.) In contrast, the term quick with child meant pregnant with a live child, even if the mother had not yet experienced quickening.

Nevertheless, in the 19th century, the English courts started to use quickening (the first movement felt by the mother) instead of quick with child (pregnant with a live child).

The American courts were influenced by the English courts, and in the 19th century, while the courts in some states continued to hold that abortion was a common law crime even before quickening, the courts in other states held that abortion was only a common law crime after quickening.

Now, it is important to point out that, in America, the colonies and subsequently the states did not have statutes (written laws passed by a legislature) protecting individuals against certain acts of private violence, including abortion. To repeat, abortion was a common law crime, as were other acts of private violence. However, in the first half of the 19th century, state legislatures started to codify the common law crimes by enacting statutes. And in 1821, Connecticut became the first state to enact an abortion statute.

Today, supporters of legal abortion, including the media, deliberately mislead the public by claiming that abortion was legal until the 19th century because, before then, the states did not have abortion statutes. Connecticut’s abortion statute is routinely described as the first law in the history of the United States to restrict abortion. Of course, this is a lie.

For supporters of legal abortion, though, facts and logic are merely inconveniences to overcome when rewriting the history of abortion.

In another development that occurred during the first half of the 19th century, scientists made several major advances in embryology, providing clear evidence that a human being’s life begins at conception. And in response, state legislatures started to eliminate the quickening rule, and started to classify abortion as a felony throughout every stage of pregnancy.

By the time the Fourteenth Amendment was ratified in 1868, abortion statutes had already been enacted by over three-quarters of the states. And by 1910, abortion statutes had been enacted by every state.

Notably, in the 19th century, leading feminists, including Elizabeth Cady Stanton, had strongly opposed abortion. Initially, the eugenics movement and the socialist movement, early in the 20th century, were the most vocal supporters of abortion.

The word “eugenics” is Greek for “well born,” and the movement—which included many Progressives—had the goal of “improving” the human race, in part, by discouraging poor people, sick people, disabled people, and unintelligent people from reproducing.

Around the same time, many people on the left of the political spectrum in the United States were inspired by the socialist government in Russia, which had legalized abortion in 1920. But the American public remained opposed to abortion.

The push to legalize abortion in the United States was aided in 1962 when the American Law Institute (ALI) proposed a “model” penal code for the states. Founded in 1923, the ALI is an independent organization made up of lawyers, judges, and law professors.

Essentially, the Model Penal Code recommended the legalization of abortion for three reasons: the physical or mental health of the mother, a physical or mental defect of the child, and pregnancy resulting from rape or incest.

Consistent with Progressive-liberal ideology, the Code did not include abortion in the section that dealt with the killing of a human being.

In 1967, Colorado became the first state to enact a statute that legalized abortion using the ALI model, and in 1970, New York became the first state to enact a statute that legalized abortion on demand. Overall, from 1967 to 1970, twelve states legalized abortion using the ALI model, while four other states legalized abortion on demand.

However, in 1971, in every state where a bill to legalize abortion was proposed, the bill was defeated.

Moreover, in 1972, in New York, the statute that had legalized abortion was repealed by the state legislature, but the repeal was vetoed by the state’s governor. Additionally, in 1972, in Michigan and North Dakota, initiatives to legalize abortion were defeated by 61 percent and 77 percent of the voters, respectively.

After 1970, only a single state enacted a statute legalizing abortion; in 1972, Florida became the thirteenth and last state to use the ALI model.

Thus, in 1973, before Roe v. Wade, abortion was still illegal in approximately two-thirds of the states, and the push to legalize abortion had been mostly unsuccessful and unpopular.

This article is an excerpt from the book Morality and Law in America.

| Paul Pauker