Abortion v. Fetal Murder - Article Example

Abortion        In Roe v. Wade much of Justice Blackmuns judgment was devoted to the history of abortion in Anglo-American law. He concluded that a constitutional right to abortion was consistent with that history. In Webster v. Reproductive Health Services, 281 American historians signed an amicus brief which claimed that Roe was consistent with the nations history and traditions. This article respectfully questions the basis of such conclusions and the 281 historians claim. (Finis, 1994)       In Washington v. Glucksberg (1997) the Supreme Court was faced with the question whether legislation prohibiting physician-assisted suicide was unconstitutional. Delivering the judgment of the Court Chief Justice Rehnquist observed: “We begin, as we do in all due-process cases, by examining our Nations history, legal traditions, and practices.” In light of the fact that for over 700 years the Anglo-American common law tradition had punished or otherwise disapproved of suicide and assisted suicide the Court went on to reject the claim that the Constitution contains a right to assisted suicide. In determining whether the Constitution contains a right to abortion the nations history and traditions concerning abortion are no less relevant. It is not surprising, therefore, that in Roe v. Wade (1973) which established such a right, much of Justice Blackmuns leading opinion for the Court was devoted to the history of abortion in Anglo-American criminal law. Blackmun concluded that a right to abortion was consistent with that history. In Webster v. Reproductive Health Services, (1989) a case which was widely viewed as providing an opportunity for the Court to reconsider its holding in Roe, 281 American historians filed an amicus curiae Brief urging that Roe v. Wade was “consistent with the most noble and enduring understanding of our history and traditions.” (The Brief, 1989) The Brief, which was eventually to attract the signatures of over 400 historians, was drafted by Sylvia Law, a professor of law at New York University. (Roundtable, 1990) It proved influential in both academic and non-academic circles. It was, for example, relied upon by Ronald Dworkin (1989) in his argument rejecting constitutional personhood for the unborn. At the heart of the Brief lay three claims: (1) “At the time the Federal Constitution was adopted, abortion was known and not illegal;” (2) “Nineteenth-century abortion restrictions sought to promote objectives that are today plainly either inapplicable or constitutionally impermissible;” and (3) “The moral value attached to the fetus became a central issue in American culture and law only in the late twentieth century, when traditional justifications for restricting access to abortion became culturally anachronistic or constitutionally impermissible.” This is a challenge of these claims. It concludes that Roe was a radical break with the laws historical protection of the unborn child and thereby with its adherence to the principle of the inviolability of human life. (Keown, 1997) It consists of three parts. The first part presents a short history of Anglo-American abortion law. Part two, illustrates the misunderstanding of that history by Justice Blackmun in Roe and challenges the claims made by the Brief. The third part is the conclusion. History       As early as the mid-thirteenth century the common law punished abortion after fetal formation as homicide. Fetal formation, the point at which the fetus assumed a recognizably human shape and was believed to be ensouled, was thought to occur some 40 days after conception. By the mid-seventeenth century abortion was prohibited as a “great misprision” or serious misdemeanor. By the early nineteenth-century at the latest the common law appears to have prohibited abortion only after “quickening.” Quickening, which occurs between the 12th and the 20th week of pregnancy, is the point at which the mother first perceives fetal movement. The later common law may have chosen this point because it was the point at which unborn life was believed to begin or because it was the point at which it could be legally proved to have begun or because the judges confused the earlier common laws prohibition of the destruction of a “quick” (formed and ensouled fetus) with the mothers experience of “quickening.” In short, the common law consistently prohibited abortion at least after quickening and did so, as the offenses focus on the initiation or at least proof of fetal life illustrates, in order to protect the unborn. (Rafferty, 1992)       The nineteenth century, both in England and in the United States, witnessed statutory restriction of the prohibition. A main if not exclusive purpose of this legislation, like the common law from which it grew, was the protection of unborn life. This is evident from the nature and wording of the statutory provisions themselves. It is no less evident from the fact that the enactment and shape of the legislation was influenced, most dramatically in the United States, by the emerging medical profession whose discovery that human life began at fertilization exposed the moral irrelevance of quickening. Responding to concerted pressure by the medical profession legislatures gradually abolished the quickening distinction and tightened the law so as to protect the unborn from fertilization. The rationale of the Anglo-American legislation was accurately identified in 1958 by Professor Glanville Williams, an eminent expert on criminal law at Cambridge University (and leading pro-abortion activist). He wrote: “At present both English law and the law of the great majority of the United States regard any interference with pregnancy, however early it may take place, as criminal, unless for therapeutic reasons. The foetus is a human life to be protected by the criminal law from the moment when the ovum is fertilized. Any suggestion that the common law did not prohibit abortion, or was “lenient” on abortion, or that women had a common law “right” or “liberty” to abort, or that the nineteenth-century statutes did not seek to protect the fetus, is groundless. Which brings us to Justice Blackmun in Roe and the 281 historians in Webster. Justice Blackmun in Roe       In Roe, the Supreme Court decided, by a 7-2 majority, that an implied constitutional right to privacy, whether based on the Fourteenth Amendments concept of personal liberty or in the Ninth Amendments reservation of rights to the people, was sufficiently broad to encompass a womans right to terminate her pregnancy. The court summarized its decision as follows: “(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant womans attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”       Much of Blackmuns opinion was devoted to the historical development of the law against abortion. He had inquired into and placed “some emphasis” upon “medical and medical-legal history and what that history reveals about mans attitudes toward the abortion procedure over the centuries.” Blackmun continued that before addressing the appellants claim that the Texan anti-abortion statute infringed her right to abort the Court felt it “desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.” He asserted that it was “undisputed” that at common law abortion before quickening was not an offense and added that whether abortion even after quickening was an offense was “still disputed.” Although, he continued, Bracton (d. 1268) regarded post-quickening abortion as homicide and the later and predominant view of the great common law scholars such as Coke (1552-1634) and Blackstone (1723-1780) held it to be “at most” a lesser offense, a recent review of the common law authorities by Professor Cyril Means of New York Law School had argued that Coke had intentionally misrepresented the law and that even post-quickening abortion was never established as a common law offense. (Means, 1971) “This is of some importance,” continued the opinion, because American courts had followed Cokes exposition of the law and had stated that abortion after quickening was a common law crime. Blackmun added that their reliance on Coke was “uncritical” and that it now appeared “doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.” Blackmun then reviewed the development of anti-abortion legislation in England. He began with Lord Ellenboroughs Act 1803 which inter alia made attempted post-quickening abortion a capital offense and which unambiguously criminalized attempted pre-quickening abortion, and ended with the Abortion Act 1967 which relaxed the law substantially. Turning to U.S. law Blackmun stated: “In this country the law in effect in all but a few States until mid-19th century was the pre-existing English common law .... It was not until after the War Between the States [1861-1865] that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening .... Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most states ....” and concluded: “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. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”       Blackmun noted that the anti-abortion mood in the “late” nineteenth century was shared by the medical profession and that “the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.” He observed that the American Medical Association (AMA) appointed a Committee on Criminal Abortion in 1857 which in its report two years later deplored abortion and its frequency which it felt was due, first, to a widespread belief that the fetus was not alive until quickening; second, to the fact that doctors themselves were often supposed to be careless of fetal life; and, third, to the “grave defects” of both common and statute laws in recognizing the fetus and its inherent rights for civil purposes but in failing to recognize it, and denying it all protection, when “personally and as criminally affected.” He added that the AMA adopted its committees resolutions which protested against “such unwarrantable destruction of human life” and which called upon state legislatures to tighten their abortion laws.       What of the purposes of the legislation? Justice Blackmun stated that those challenging the legislations constitutionality claimed--pointing to “the absence of legislative history” to support fetal protection--that “most” state laws were enacted not to protect fetal life but solely to protect women from the dangers of abortion. Citing two articles by Professor Cyril Means (1968) he noted that there was some scholarly support for this view and stated: “The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the States interest in protecting the womans health rather than in preserving the embryo and fetus.”       Blackmun added that supporters of this view pointed out that in many states, including Texas, the pregnant woman could not be prosecuted for self-abortion or for co-operating in an abortion performed on her by another and that the quickening distinction recognized the greater health hazards inherent in late abortion and repudiated the notion that life begins at conception. The Court concluded that its decision to uphold a constitutional right to abortion and strike down the anti-abortion legislation was consistent with inter alia “the lessons and examples of medical and legal history” and with “the lenity of the common law.” In short, Blackmun appears to have been persuaded that at common law women enjoyed a “right” to abort in early and very possibly later pregnancy and that the legislative restriction of this “right” in the last century was due to concern to protect maternal rather than fetal life. The Historians Brief in Webster       The misunderstanding of abortion law history by Justice Blackmun and by the Historians Brief will become patent when the claims made by the Brief in defense of his historiography are subjected to scrutiny. The Brief (1989) claimed: “As the Court demonstrated in Roe v. Wade, abortion was not illegal at common law. Through the nineteenth century American common law decisions uniformly reaffirmed that women committed no offense in seeking abortions. Both common law and popular American understanding drew distinctions depending upon whether the fetus was “quick,” i.e. whether the woman perceived signs of independent life. There was some dispute whether a common law misdemeanour occurred when a third party destroyed a fetus, after quickening, without the womans consent. But early recognition of this particular crime against pregnant women did not diminish the liberty of the woman herself to end a pregnancy in its early stages.” This outline of the common law could have served only to mislead the Court into thinking that abortion was not illegal at common law, even after quickening. The passage stated that the common law “drew distinctions” at quickening but rather than explaining why it did so, namely, so as to punish abortion after quickening proceeded to state that there was some dispute whether non-consensual abortion after quickening was illegal. This distracting assertion (which is in any event erroneous, Mclaren, 1984) was likely to mislead the unwary reader into thinking that consensual abortion after quickening was not illegal. No less misleadingly the passage conflated two distinct questions: first, whether abortion was an offense at common law and secondly, if it was, whether the mother herself was liable. In relation to the first question the Brief asserted that the court in Roe “demonstrated” that abortion was not an offense. The Court did no such thing. It simply observed that it was “doubtful” whether abortion was a common law offense even after quickening. This doubt was, moreover, entirely misplaced. The authorities establish that abortion, at least after quickening, was an offense at common law. Indeed, as the Roe court itself stated, the “predominant” view, following that of the great common law scholars such as Coke and Blackstone, was to this effect.       Chief Justice Coke wrote in his Institutes (1641), the first textbook of the modern common law: “If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder.” Similarly, Sir William Blackstone wrote in his celebrated Commentaries (1765) that life was a gift from God, a right inherent by nature in every individual which “begins in contemplation of law as soon as an infant is able to stir in the mothers womb.” These authorities lend weighty support to the historic proposition that it was illegal at common law for a woman, or a third party, to procure abortion after she was “quick with child.”       Why did the Supreme Court in Roe doubt such high authorities? The answer appears to lie in the Courts reliance on Professor Means. His article (which did not disclose that he was counsel to NARAL, a national association seeking the repeal of the anti-abortion legislation) argued that Cokes statement of the criminality of abortion was an “outrageous attempt” to create a new common-law misdemeanour and a “masterpiece of perversion of the common law of abortion.” It claimed that subsequent commentators such as Hawkins and Blackstone uncritically accepted Cokes exposition of the law and that there were plenty of dicta but no decisions supporting Coke, certainly none holding the woman herself guilty of an offense. As observed earlier the Court in Roe regarded Meanss thesis as “of some importance” because most U.S. courts had followed Coke and held that post-quickening abortion was a common law offense.        Scholarship since Roe has confirmed that the “masterpiece of perversion of the common law of abortion” flowed from the pen of Means not Coke. For example, exhaustive research by Philip Rafferty confirms that the early common law prohibited abortion from fetal formation, the later common law from quickening. (Destro, 1975) Examples of precedents unearthed by such scholars, precedents which Means denied existed, include the indictment in 1602 (before Cokes Institutes) of one Margaret Webb for taking poison with intent to destroy the infant in her womb. (Keon, 1997) Another is the trial and conviction of one Elizabeth Beare in 1732 (evidently reported verbatim) for procuring the abortion of another woman by the use of an instrument. (Turner, 1775) A more recent trawl of the authorities by Professor Dellapenna, in his recent volume dispelling the mythology about abortion history which has been spun by writers such as Means, confirms that abortion was an offense at common law both in England and its American colonies. He points out that the precedents unearthed hitherto (in Connecticut, Delaware, Maryland, Rhode Island and Virginia) show that the prohibition on abortion was at least as strict as in England. (Dellapenna, 1979)       After the paragraph in which the Brief misleadingly outlined the legal status of abortion at common law the next three paragraphs considered the incidence of abortion (although the relevance of the supposed incidence of conduct to its constitutionality was not made clear). Although this papers focus is the Briefs treatment of legal history its unreliability as social history should not be overlooked. For example, the Brief asserted, citing social historian Angus McLaren, that “Abortion was not uncommon in colonial America.” Leaving aside the fact that McLaren was writing about England not America, even a signatory to the Brief, Professor Estelle Freedman (1990), has taken issue with this sweeping assertion: “I find it hard to argue,” she later wrote, “that abortion was ‘not uncommon,’ given the economic and religious motives for childbearing within families.” The Brief nowhere acknowledged her concern. To return to the Briefs treatment of legal history it is evident that abortion was not an offense at common law, is insupportable.       In conclusion, while the abortion law may historically have sought to protect women as well as the unborn, and while the role of the medical profession in influencing the statutory restriction of abortion law in the last century may not have been entirely disinterested, it is beyond reasonable doubt that one of the purposes of the common law and the legislation enacted in the last century--indeed the predominant if not the only purpose--was the protection of the unborn. Although part two has not sought to identify all the errors in the Historians Brief, it has, however, sought to show, by challenging three of the Briefs central claims, that its version of history is a travesty of the truth.       As part one indicated, from the thirteenth century the common law, seeking to protect human life from the time it was believed to have begun (or at least could be proved to have begun) proscribed abortion as a serious offense. In the nineteenth century, improved understanding of embryological development showed the common laws criterion of quickening to be morally irrelevant. Pressed by educated medical practitioners to bring the law up to date with this advanced understanding legislators across the United States filled the gap by protecting fetal life from fertilization. Professor Mohrs account of the regulars campaign is a valuable addition to our understanding of the genesis of the nineteenth-century legislation, but his interpretation of Roe as a return to a tradition of “tolerance” is very wide of the mark. For anyone, judge or historian, to portray over 700 years of legal opposition to abortion as evidence of “tolerance” is, quite simply, to stand history on its head. And as for the Historians Brief, it is so gross a misrepresentation of the nations history and traditions that it is small wonder that it has been branded “an utter fraud, riddled with scholarly abuses and inaccurate conclusions.” (Ponnoru, 2006) The primary purpose of the prohibition on abortion, both at common law and by statute, has been the protection of the unborn. There is, moreover, cogent evidence that the laws disapproval of abortion has reflected social mores. Professor Dellapennas recent exhaustive study concludes: “all groups in society (viewed collectively, even though some individuals dissented within any given group), including women, people of color, lawyers, doctors, clergy, journalists, and others, supported the prohibition of abortion until very recent times.” Roes invention of a constitutional right to abortion represented a radical rejection of Americas long-standing history and traditions. The tailoring by the Historians Brief of a historiography to clothe that new right relies on a patchwork of threadbare materials which leaves it embarrassingly exposed. It is to be hoped that just as the Supreme Court brought an accurate understanding of the nations history and traditions to bear on the question of whether the Constitution contains a right to assisted suicide, it will do likewise on the no less important question of whether the Constitution contains a right to abortion. References Dellapenna, J. (1979). The History of Abortion: Technology, Morality and Law. U. PITT. L. R., 40, 359, 366. Dellapenna, J. W. (2006). Dispelling the myths of abortion history. Durham, NC: Carolina Academic Press. Destro, R. (1975). Abortion and the Constitution: The Need for a Life-Protective Amendment. CAL. L. REV., 63, 1250, 1267-73. Dworkin, R. (1989). The Great Abortion Debate. N.Y. REV. OF BOOKS, 36, 11. Finnis, J. (1994). “Shameless Acts” in Colorado: Abuse of Scholarship in Constitutional Cases. ACADEMIC QUESTIONS, 7, 10. Forsythe, C. (1987). Homicide of the Unborn Child: The Born Alive Rule and other Legal Anachronisms. VALPARAISO L. REV., 21, 563. Garrow, D. J. (1994). Liberty and sexuality the right to privacy and the making of Roe v. Wade. New York: Maxwell Macmillan International. Grisez, G. G. (1970). Abortion. New York: Corpus Books. Grossberg, M. (1985). Governing the hearth law and the family in nineteenth-century America. Chapel Hill: University of North Carolina Press. Keown, J. (1988). Abortion, doctors, and the law some aspects of the legal regulation of abortion in England from 1803 to 1982. New York: Cambridge University Press. Keown, J. (1997). Restoring Moral and Intellectual Shape to the Law after Bland. LAW Q. REV., 113, 481. McLaren, A. (1984). Reproductive rituals the perception of fertility in England from the sixteenth to the nineteenth century. New York, NY: Methuen. Means, C. (1968). The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality. N.Y. L. FORUM, 14, 411. Means, C. (1971). The Phoenix of Abortional Freedom: Is a Penumbral or Ninth Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty? N.Y. L. FORUM, 17, 335. Mohr, J. C. (1978). Abortion in America the origins and evolution of national policy, 1800-1900. New York: Oxford University Press. Roe v. Wade, 410 U.S. 113 (1973). Roundtable: Historians and the Webster Case. (1990). PUBLIC HISTORIAN, 12, 9. Washington v. Glucksberg, 138 L. Ed. 2d 772 (1997). Webster v. Reproductive Health Services, 492 U.S. 490 (1989). Williams, G. L. (1957). The sanctity of life and the criminal law. New York: Knopf. Witherspoon, J. (1985). Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment. ST. MARYS L.J., 17, 29, 58. Read More