Politics & Policy

The Historical Roots of Abortion Law

How deeply rooted is the prohibition of abortion?

This week marks the 800th anniversary of Magna Carta. Signed at Runnymede on June 15, 1215, the Great Charter was an agreement between King John and his barons that the King was subject to the law and could not rule arbitrarily. Given current clashes in American courts over the president’s authority — or lack of it — to suspend or amend congressional legislation, this momentous document has never been more relevant.

A good summary of the significance of Magna Carta was published by the British politician and historian Daniel Hannan in the May 30–31 issue of the Wall Street Journal. Hannan quotes the 20th-century British jurist Lord Denning, who called Magna Carta “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

But in another remarkable 13th-century development, English law was also beginning to protect human life by prohibiting abortion, a lesson from history that too few are aware of. 

Given recent pro-life trends in our state legislatures — and as the Supreme Court considers this month whether to hear future cases on abortion — the legacy of English law from the 13th century has a direct bearing on whether any abortion right is “deeply rooted” in American law and tradition.

The earliest English legal authorities, Bracton (writing c. 1256) and the anonymous author of Fleta (1290), held that abortion was homicide (the killing of a human being). A few centuries later, the most respected English legal authorities, who influenced the American Founders and American law, Sir Edward Coke (1552–1634) and Sir William Blackstone (1723–1780), affirmed the criminality of abortion from the time that medical practitioners could determine that a woman was pregnant with a living child.

These common-law understandings were taken as authoritative until challenged in the 1960s by abortion advocate Cyril Means Jr., the general counsel for NARAL (the National Association for the Repeal of Abortion Laws, as it was then called). And the Supreme Court in Roe v. Wade relied heavily on Means’s writings to override the history of the law presented by Bracton, Fleta, Coke, and Blackstone.

But were the English legal authorities correct?

We now have abundant legal evidence that they were. A number of court records scattered across English counties had been lost in the mists of time until they were searched for and uncovered by the renowned British legal historian Sir John Baker over the past few decades. Dozens of prosecutions for abortion have been found in the 13th, 14th and 15th centuries; these are described in detail in Villanova law professor Joseph Dellapenna’s treatise Dispelling the Myths of Abortion History (Carolina Academic Press, 2006). In these cases, the unborn entity was consistently regarded and named as a “child.”

Eventually, English criminal law adopted two evidentiary rules: the quickening rule and the born-alive rule. Initially, abortion was prohibited after “quickening” — the first fetal movements detected by the mother, the best available evidence of life at a time of less advanced medicine.

In 1601, English law adopted the born-alive rule, which meant that the killing of an unborn child was held to be homicide only if the child was injured in the womb (whether by an attempted abortion or by battery committed against the mother) and born alive, dying only after birth. The born-alive rule was implemented to distinguish natural causes from criminal causes for an infant’s death. An abortion or battery that resulted in live birth and then death was a homicide.

Numerous common-law prosecutions against abortionists formed the backdrop to Lord Ellenborough’s Law of 1803, the first English prohibition of abortion by statute. Among other things, the 1803 law strengthened the prohibition of abortion by increasing the crime of pre-quickening abortion to a felony; post-quickening abortion was punished even more severely.

This history repudiates the spurious account that the Court offered in Roe v. Wade to legalize abortion.

The American colonies adopted the English common-law prohibition on abortion. Maryland, for example, applied the prohibition in the 1652 case of William Mitchell. Rhode Island applied it in the 1683 case of Deborah Allen, and Connecticut in the 1747 case of John Hallowell. In 1716, New York City prohibited midwives from performing abortions. In the 19th century many American states strengthened the law against abortion by eliminating the quickening distinction and extending the prohibition throughout pregnancy, and by increasing the penalties.

For a century before Roe v. Wade, the states uniformly enforced abortion law against the abortionist and considered the woman the second victim of abortion.

This history — the traditional understanding reinforced by contemporary research — repudiates the spurious account that the Court offered in Roe v. Wade to legalize abortion and shows that America has a legal heritage going back eight centuries protecting human life, as well as liberty.

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