Popular pro-choice lies about legal history

How often have you been told that abortion was always safe and legal before the Victorians, and that medieval people used abortion casually all the time? Dubious sources like Carl Sagan and of course the US supreme court quote sources such as Mohr and Means as an authority, but how reliable were such people as historians?

It turns out such people created a pseudo-historical myth by ignoring inconvenient evidence that they knew was available, selectively interpreting that which was, and oversimplifying complex concepts like ‘quick with child’ that have no real equivalent in use today.

It looks like I’ve got another book to purchase…

How the Supremes Flunked History
Mary Meehan


“Dellapenna is also a fierce critic of Roe v. Wade, and has been for more than 30 years. As a young professor, he was studying population policy when the Supreme Court decided Roe in 1973. Justice Harry Blackmun had relied on two articles by law professor Cyril C. Means, Jr., for his Roe history of abortion law, so Dellapenna read the Means articles. He found some of their claims to be “seriously deficient even based on the evidence Means himself presented.” Dellapenna started researching and writing about the history of abortion law and eventually submitted friend-of-the-court briefs in major abortion cases.”

“His main focus is the history of abortion law in England and the United States. The English emphasis is important because English common law – the customary law, based on cases and precedents rather than statutes – often was decisive in early U.S. history unless replaced by specific statutory law. American lawyers and judges had to know the common law.”

“Dellapenna shows that the late Prof. Means, who taught at the New York Law School, was wrong in claiming there was a common-law liberty to have an abortion. (If there were such a liberty, there might be a strong argument that the Constitution’s Ninth Amendment protects it as a right “retained by the people.”) He says the “history embraced in Roe could not withstand careful examination even when Roe was written.” Research since that time has shown the Roe version of history to be even worse than many critics had thought. Sir John Hamilton Baker, an expert on English legal history who teaches at the University of Cambridge, has found and translated early case records that previously were available only in Latin or “Law French” (a leftover from the Norman conquest of England). California attorney Philip Rafferty, with much assistance from Baker, has gone deeply into those common-law cases. Dellapenna has drawn on their work and has done much of his own research on the medical history of abortion.”

“Rafferty, in his Roe v. Wade: The Birth of a Constitutional Right, documents over 100 English abortion-related cases that occurred before the American colonies declared their independence from England in 1776. His appendices, consisting mainly of verbatim case reports, provide an enormous amount of information on these and later cases. The information shows that Justice Blackmun was clearly wrong about the common law. Legally speaking, Roe v.Wade is already tottering on the edge of a cliff.

Prof. Means, he says, was general counsel of the National Association for the Repeal of Abortion Laws (NARAL) when he wrote one of the articles cited by Justice Blackmun in Roe. Dellapenna charges that Means “designed his research to support the political task of changing the abortion laws,” missed much key evidence, and distorted other evidence. Other scholars – including Linda Gordon, Angus McLaren, James C. Mohr, Leslie J. Reagan, John M. Riddle, and Laurence Tribe – come in for their share of criticism as well.

Henry de Bracton, the first major compiler of the common law, wrote in the mid-1200s that if someone “strikes a pregnant woman or gives her a potion in order to procure an abortion, if the foetus is already formed or animated, especially if it is animated, he commits homicide.”

“The distinctions between formed or unformed, animated or not animated, have bedeviled the abortion debate – and discriminated against the youngest of the unborn – at least since the time of Aristotle. In the Middle Ages, as in ancient times, people had no knowledge of genetics and did not understand embryonic and fetal development. They had no ultrasound, fetoscopy, or other “windows on the womb.” St. Thomas Aquinas and other leading theologians accepted Aristotle’s theory of delayed ensoulment; they believed that early abortions were gravely sinful, but not homicide. And lawyers had major evidentiary problems when dealing with abortion. In an early abortion, what was visible to the naked eye might not seem human to a witness. If someone beat a woman severely, and she miscarried weeks later, how could one prove that the beating caused the miscarriage? If a child was stillborn, how could one prove that he or she was alive when the abortion occurred?

There was, though, some protection for the unborn before the time of formation – or of quickening, when that later became the norm. In the Middle Ages, and for some time after the Reformation, church courts in England prosecuted some abortion cases, including ones that involved “potions” or drugs. And for at least part of that period, doctors, midwives, and druggists took oaths that they would not do abortions or provide drugs for them.”

One assault case, known at the time of Roe and heavily relied on by Cyril Means, was known only by an incomplete report – and thus had been misinterpreted by major commentators. Means also misinterpreted it, claiming it established that abortion “was not a felony at all at common law.” In the 1327-28 case, Rex v. de Bourton, Richard de Bourton was accused of beating a woman late in pregnancy. She was carrying twins; the beating allegedly killed one in the womb and caused the other to die soon after birth. The brief report upon which Means relied said the judges “were unwilling to adjudge this thing a felony.”

Prof. Baker found original court records of the case showing that Bourton had been accused of a felony with respect to at least one of the twins, and possibly both. One record quotes a message from King Edward III. Relying on information from his chief justice, the King wrote that Bourton had been indicted for beating a tailor’s wife, Alice Carles, who was “greatly pregnant” with twins, so that “he feloniously killed one of the aforesaid children in the belly of the same Alice its mother, and broke the head and arm of the other…so that it was forthwith born and baptized by the name of Joan,” and immediately died. Other court documents refer to Joan’s death alone as a felony, although Prof. Baker has suggested this “may have been clerical shorthand.” Bourton’s case was delayed when he was arrested on another allegation, and delayed again when jurors failed to appear for the twins’ case. Meanwhile, Bourton obtained a royal pardon that ended the twins’ case. Dellapenna notes that pardons were then “issued to many on condition that they agree to serve in the Scottish wars.” Bourton, though, “appears to have been exempted from such a condition, perhaps indicating that he was well connected at court.”

Baker, Dellapenna, and Rafferty, all say the judges’ unwillingness “to adjudge this thing a felony” was just a preliminary conclusion related to bail. In other words, the judges thought that if Bourton had beaten Alice Carles, he may not have acted with “malice aforethought” in the sense of intending to kill the twins. But the question of whether Bourton had, in fact, committed a felony was left open – until the royal pardon ended the case.

Sir Edward Coke, a colossus of English legal history, dealt with abortion in his Third Institute (1644). He said that when a woman who was “quick with childe” aborted herself, or was beaten by a man, and the child was born dead, then “this is a great misprision, and no murder.” (Elsewhere he described this type of misprision as “some heynous offence under the degree of felony.”) But if the child was born alive, and then died of an injury received in the abortion attempt, Coke said, the offense was murder. Coke thus modified Bracton and created the “born-alive rule.” It’s hard to be sure what Coke meant by “quick with childe.” The term usually is interpreted to mean “quickening” – that is, the time when a pregnant woman first feels fetal movements. Medical authorities today generally place this at 16-20 weeks of pregnancy. But Dellapenna and Rafferty say the term “quick with child” sometimes meant simply that the child was alive, and Rafferty makes a strong case on this point.

Prof. Means, who claimed to have presented English common law on abortion “thoroughly,” managed to miss most of the cases. This enabled him to say the sketchy record of what he called The Abortionist’s Case (1348) proved that abortion was not a crime of any type at common law. The case record stated: “One was indicted for killing a child in the womb of its mother, and the opinion was that he shall not be arrested on this indictment since no baptismal name was in the indictment, and also it is difficult to know whether he killed the child or not, etc.” Yet the issue of baptismal name was not even raised in most abortion cases. And if the authorities felt the evidence was insufficient for trial in The Abortionist’s Case, that said absolutely nothing about evidence in other cases.

Justice Harry Blackmun, relying on the writing of Prof. Means, wrote in Roe v. Wade that it seemed “doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.” Compare that remark with Agnes’s Appeal, Juliana’s Appeal, Rex v. Scharp, Rex v. de Bourton, Regina v. Webb, and the following cases scattered over several centuries. Relying on Rafferty’s appendices, I have noted the outcome of each case where known; but the key item is the charge or indictment, since it shows the criminal status of abortion…

“As it evolved through the centuries, English common law did not treat abortion as ordinary homicide. This was partly due to confusion about formation, animation, and quickening; but the vexing problem of evidence was also a major factor. The record shows concern about the lives of both mothers and children, but clearly not enough for sufficient protection. In 1803 Parliament passed a law that made abortion a felony, and one punishable by death when done while the mother was “quick with child.” An 1837 law deleted the “quick with child” distinction; it also substituted imprisonment or transportation (exile) for the death penalty. According to Dellapenna, the penalty was changed because “juries were increasingly reluctant to convict abortionists if the penalty were death.” He says this reluctance wasn’t unique to abortion, but “extended to all capital crimes.” He emphasizes that legal changes in the 1800s were “primarily directed at the protection of fetal life” and that new scientific evidence about conception had much to do with those changes.”

American interpretation of the common law generally followed William Blackstone, whose 1765-69 volumes, Commentaries on the Laws of England, were a key authority for U.S. lawyers and judges both before and after the American Revolution. Blackstone wrote that abortion of a woman “quick with child” that resulted in the birth of a dead child “was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor.” He supported Sir Edward Coke’s born-alive rule.

Dellapenna shows that in the United States, as in England, new scientific evidence about fetal development led to much anti-abortion legislation in the 1800s. While early laws often made a quickening distinction, later ones generally did not. Dellapenna presents much information on changes in abortion techniques and social life that led to major increases in abortion in the late 1800s and the 1900s. Taking the story through the year 2003, he deals with Roe v. Wade and other major abortion cases at length.

In breaks between long sessions of reading his book, I began to wonder why it had taken the Supreme Court so long to deal with abortion. From research in other sources, it was my impression that the Court’s first abortion decision was in United States v. Vuitch, a 1971 case about District of Columbia law. Returning to Dellapenna, I was amazed to find five Supreme Court cases, long before Vuitch, that were related to abortion or mentioned it. The cases, from 1877-1949, didn’t involve constitutional challenges to anti-abortion laws. But they showed that the Court took for granted the criminal nature of abortion. None of the justices suggested any constitutional problems with anti-abortion laws. In fact, two or three of the decisions upheld state action against abortionists. Dellapenna notes that Justice Blackmun “did not even bother to cite, let alone to discuss” the five cases in his Roe opinion.

About skadhitheraverner
I'm a young freelance writer from the UK, with an interest in anthropology, the outdoors and rightist politics.

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