Justice Samuel Alito’s leaked draft opinion could be even stronger in refuting the notion that Anglo-American law ever recognized a right to abortion. The draft addresses the common-law history in detail and is powerful in assembling the historical data and describing the contemporary medical context.
But nowhere does the February 10 draft discuss the common-law born-alive rule. The rule — and, more important, its prenatal application — demonstrates conclusively that Anglo-American law never recognized any right to abortion, even before quickening. This is particularly relevant in rebutting the claim of the U.S. solicitor general, Elizabeth Prelogar, who told the Supreme Court that “at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages.”
As the draft opinion shows, abortion law was necessarily limited by contemporary medical understanding. The era of the common law — before 1803 when the first English abortion statute was adopted by Parliament — was a time of primitive medicine and high infant mortality. (The stethoscope, for example, wasn’t invented until 1816.) Before modern medicine, the mother’s first sense of fetal movement — called quickening — was the most reliable evidence of a viable (progressing) pregnancy and a live child in utero. That generally occurs around 16 to 18 weeks of pregnancy.
Before quickening, all “signs” of pregnancy were ambiguous, evanescent, and unreliable. The law focused on quickening as the most reliable evidence of pregnancy and fetal life. The quickening rule was an evidentiary rule, as numerous treatises and common-law cases confirm, not — as abortion advocates claim — a substantive rule of humanity or personhood.
Proof that an abortive act caused a miscarriage (abortion) was not enough to show homicide — that the act killed a living child. The child might have died after quickening, and it was difficult to show in the case of a stillbirth whether the death was caused by natural or human causes.
So the born-alive rule was adopted as a standard of sufficient evidence of homicide. Live birth — showing signs of life outside at any time of pregnancy — was necessary at the time to connect the dots, to show that an abortive act killed a living prenatal human being. Evidence of live birth was accepted at any stage of pregnancy. There was no gestational limit.
Pro-abortion advocates have for decades alleged a right to abortion before quickening. And they make that claim again in Dobbs. The pro-abortion “history” brief filed by the American Historical Association (AHA) and Organization of American Historians (OAH) claims a “right” to abortion before quickening.
The claimed right to an abortion before quickening suffers from three major defects. First, by ignoring the contemporary medical context of the law, the claim assumes that there was reliable evidence of a pregnancy before quickening. If quickening was essential to show there was a pregnancy, it was necessary to show its termination (abortion). Talk of any recognition of a “right” to abortion before proof of pregnancy (quickening) is nonsense. How could there be a right to abort something for which there was no reliable evidence? In effect, pregnancy didn’t exist before quickening. The Alito draft shows that there was never any legal recognition of any such “right.”
Second, the claimed right assumes but never attempts to show that a safe and effective method of abortion existed early in pregnancy. Joseph Dellapenna, the foremost historian of abortion and abortion law in the Western world, rebuts that assumption through an exhaustive examination of contemporary medicine in his 2006 treatise, Dispelling the Myths of Abortion History. Dellapenna shows that any supposed method of abortion was either deadly or ineffective or both. Evidence of a safe and effective method is virtually nonexistent. As Brooklyn Law professor Anita Bernstein, an advocate of abortion rights, conceded in the Buffalo Law Review (2015), “Dellapenna argues persuasively that this combination [safety and effectiveness] did not come together until the nineteenth century.” The brief filed by the AHA-OAH in Dobbsnever dares to confront Dellapenna’s evidence.
Nevertheless, folklore about potions or herbs that acted as abortifacients persisted. Why? The obvious reason is that since medicine was so primitive, and the determination of pregnancy was so uncertain, any “remedy” that might be taken could be “connected” to the disappearance of virtually any symptom of pregnancy, at least before quickening. Signs appeared, potion taken, signs disappeared, the potion must have ended a pregnancy.
Given the lack of any safe and effective method of abortion, the real “method of choice” for dealing with an unwanted pregnancy was infanticide, not abortion. Because killing the child in utero was ineffective and deadly for the mother, the method of choice was to wait until the child was outside and kill the child outside — infanticide. The evidence of infanticide, and of the law’s prosecution of infanticide, is abundant. As historian Mary Kenny wrote, “the traditional forms of abortion have been infanticide and abandonment.”
Finally, the claim of a right to abortion before quickening ignores the born-alive rule. The born-alive rule dictated that the killing of a child in utero — resulting in a stillbirth — could not be a homicide due to unreliable evidence. Only if the child was injured in utero and delivered alive and died thereafter could the perpetrator be charged with homicide — the killing of a human being. The born-alive rule, like the quickening rule, was an evidentiary rule. And if the infant was born alive, that evidence of life outside eclipsed the need for the quickening rule.
Some common-law writers mention the born-alive rule as early as the 1300s. And it was confirmed by cases and legal authorities such as Coke for centuries, but the clearest statement was by William Blackstone in his influential Commentaries on the Laws of England in the 1760s. He held: “To kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.” This is the clearest statement of the prenatal application of the born-alive rule.
The born-alive rule shows two things of legal importance that utterly refute Roe v. Wade. First, there was no “right” to an abortive act. An abortive act that resulted in death after birth was a homicide. Second, it shows that the connection of the prenatal act in utero to the death after birth from the prenatal act proved the elements (corpus delecti) of homicide. It showed that the prenatal being and the child after birth were the same individual. If the child was not a human being until after birth — as Justice Blackmun suggested in Roe — then no prenatal act could be relied upon to prove homicide. The prenatal application of the born-alive rule showed that the human entity inside and outside the womb was the same entity in the view of the common law.
The born-alive rule is stronger and clearer than the quickening rule in showing that Anglo-American law never recognized a right to abortion, that the law considered the prenatal entity to be a human being, and that proof of killing from an abortive act could be treated as a homicide.