Roe v Wade got its legal history wrong, say experts
This is an amicus curiae brief to the US Supreme Court by one of America’s leading constitutional lawyers, Professor Robert P. George, of Princeton, and Oxford philosophy professor John Finnis. They are advising SCOTUS about a case which could overturn Roe v Wade -- Mississippi’s appeal against a decision that struck down its ban on abortion at 15 weeks of pregnancy. The article is long but well worth reading for its historical background. It has been slightly abridged. For the full version, with footnotes, click here.
The originalist case for holding that unborn children are persons is at least as richly substantiated as the case for the Court’s recent landmark originalist rulings. The sources marshalled in such decisions— text, treatises, common-law and statutory backdrop, and early judicial interpretations—here point in a single direction.
First, the Fourteenth Amendment, like the Civil Rights Act of 1866 it was meant to sustain, codified equality in the fundamental rights of persons—including life and personal security—as these were expounded in Blackstone’s Commentaries and leading American treatises. The Commentaries’ exposition began with a discussion (citing jurists like Coke and Bracton) of unborn children’s rights as persons across many bodies of law.
Based on these authorities and landmark English cases, state high courts in the years before 1868 declared that the unborn human being throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.”
From the earliest centuries at common law, (1) abortion at any stage was to “no lawful purpose,” and functioned as a kind of inchoate felony for felony-murder purposes, and (2) post-“quickening” abortion was an indictable offense. By the 1860s, the “quickening” line for indictments had been abandoned because science had shown that a distinct human being begins at conception. Obsolete limits to the common law’s criminal-law protection of the unborn were swept away by a cascade of statutes in a strong majority of states leading up to the Amendment’s ratification.
In the 1880s, this Court reckoned corporations “person[s]” under the Equal Protection and Due Process Clauses. The rationale—a canon of interpretation first expounded by Chief Justice Marshall and central to originalism today—itself blocks any analytic path to excluding the unborn. Indeed, the originalist case for including the unborn is much stronger than for corporations.
These textual and historical points show that among the legally informed public of the time, the meaning of “any person”—in a provision constitutionalizing the equal basic rights of persons—plainly encompassed unborn human beings.
Second, the only counterarguments by any Justice—and by the sole, widely discredited writer cited in Roe—rest on groundless extrapolations and plain historical falsehoods exposed in scholarship and still unanswered.
Finally, acknowledging unborn personhood would be consistent with preserving the nation’s long tradition of deference toward state policies treating feticide less severely than other homicides, and guarding women’s rights to pressing medical interventions that may cause fetal death. Nor would recognizing the unborn require unusual judicial remedies. It would restore protections deeply planted in law until their uprooting in Roe.
Unborn children are constitutional persons entitled to equal protection
The Fourteenth Amendment bars States from depriving “any person of life” “without due process of law” or denying “to any person” “the equal protection of the laws.” It was adopted against a backdrop of established common-law principles, legal treatises, and statutes recognizing unborn children as persons possessing fundamental rights.
Authoritative treatises—including those deployed specifically to support the Civil Rights Act of 1866, which the Fourteenth Amendment aimed to codify — prominently acknowledged the unborn as persons. Leading eighteenth-century English cases, later embraced in authoritative American precedents decades before ratification, declared the general principle that unborn humans are rights-bearing persons from conception.
And even before a nationwide wave of statutory prohibitions of abortion in the mid-nineteenth century, the common law firmly regarded abortion as an offense from the moment—established by science—when there emerged a new individual member of the human species, a human being.
Blackstone’s Commentaries expressly taught that unborn human beings are rights-bearing “persons” and contributed enormously to the term’s shared legal meaning in 1776-91 and 1865-68. Little wonder that when House Judiciary Committee Chairman James F. Wilson introduced the Civil Rights Act of 1866, he said:
[T]hese rights … [c]ertainly … must be as comprehensive as those which belong to Englishmen…. Blackstone classifies them … as follows: 1. The right of personal security ... great fundamental rights ... the inalienable possession of both Englishmen and Americans ....
Wilson was quoting Blackstone’s Commentaries’ first Book, “Of the Rights of Persons,” and its first Chapter, “Of the Absolute Rights of Individuals.” Wilson observed approvingly that the leading American treatise on common law—Kent’s Commentaries—explicitly adopted Blackstone’s categorization of these rights and description of them as “absolute”—natural to human beings.
Blackstone’s analysis, presented as uncontroverted and familiar to Wilson’s listeners in Congress, begins with the “right of personal security”—“a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health ....” And Blackstone’s unfolding of this right of persons opens immediately after Wilson’s quotation with two paragraphs about the rights of the unborn:
Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.
This paragraph continues with two sentences about a shift or ambiguity in criminal law about homicide and abortion, addressed below. Then comes Blackstone’s second paragraph on unborn children’s rights:
An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.
… Blackstone’s second paragraph on unborn persons’ rights states an even more pervasive common-law doctrine (construing common law broadly to include established equitable principles). Also essential to the legal context and meaning of “any person” in the 1868 Clauses, this doctrine treats the unborn as rights-bearing persons from conception, in many fields besides criminal law.
English and early state court cases
The leading case of Hall v. Hancock, which cited many English cases, formulated this doctrine thirty-two years before the debates on the Civil Rights Act of 1866. The Massachusetts Supreme Judicial Court ruled unanimously, per Chief Justice Shaw:
[A] child is to be considered in esse [in being] at a period commencing nine months previously to its birth.... [T]he distinction between a woman being pregnant, and being quick with child, is applicable mainly if not exclusively to criminal cases [and] does not apply to cases of descents, devises and other gifts; and … a child will be considered in being, from conception to the time of its birth in all cases where it will be for the benefit of such child to be so considered....
Lord Hardwicke says, in Wallis v. Hodson, “ that a child en ventre sa mere is a person in rerum naturâ, so that, both by the … civil and common law, he is to all intents and purposes a child, as much as if born in the [testator’s] lifetime.... Doe v. Clarke is directly in point[,] stat[ing] as a fixed principle that, wherever [it] would be for his benefit, a child en ventre sa mere shall be considered as absolutely born.
This doctrine about the real and legal personhood of the unborn from conception was enunciated by an esteemed state chief justice not as a technical rule for one purpose but as a “fixed principle” “to all intents and purposes”: The unborn is “a child, as much as if born” and “is a person in rerum naturâ.” The Georgia Supreme Court, too, in 1849, expressly applied that principle, paraphrasing Hardwicke and Shaw.
Given this general but pointed principle, and the doctrinal architecture of Blackstone’s Commentaries and thus of American legal education for the century preceding 1868, the original public meaning of “any person” in the fundamental-rights-regarding Equal Protection Clause included living preborn humans.
The unimportance of “quickening”
This conclusion is not undermined by the (limited, shifting, ultimately transient) relevance at common law of a child’s being “quick” or “quickened.”
Archaic views of human generation held sway down into the mid-nineteenth century. Such views mostly supposed that generation involved an unformed fleshy mass undergoing successive “formations” (receptions of new forms—vegetable, animal, etc.) until it was differentiated enough, at around six weeks, to receive a distinctly human form. Such animation by a rational soul (anima ) was supposed to make it a human organism.
This misperception, despite scientific advances, plagued the public (making “quick” and “quicken” ambiguous) until the mid-nineteenth century. Uncertainty led some courts to leave reform of common law abortion offenses to legislatures. But this did not affect the legal question whether prenatal humans—whenever science showed they existed—were “person[s]” entitled to life and security. All along, they have been, as proven by courts’ and lawmakers’ swift extensions of protection as general opinion caught up with science.
The historical legal field is illuminated by distinguishing three distinct senses of “quick(en)”:
i. “quick with child” meant pregnant — from pregnancy’s start, conception—but was also sometimes used interchangeably with having
ii. “a quick child” (a live child), understood to emerge when an embryo had developed enough to receive a rational animating principle (soul) and so had become a truly human individual. This term applied—in Bracton’s mid-thirteenth century, Coke’s early seventeenth, and the educated opinion of Blackstone’s time— from the sixth week of pregnancy.
iii. “quickening” (a “quickened child”, etc.), from the pregnant woman’s perception of a shift in the uterus’s position or her child’s movements, sometime between the twelfth and the twentieth week (or not at all), but normally about the fifteenth or sixteenth week.
With this clarification, we return to the two sentences earlier left aside in the Commentaries’ first paragraph on the rights of the unborn:
For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
The first sentence’s footnote quotes a line from Bracton in Latin ; the second’s cites a passage in Coke’s Institutes quoting the same line from Bracton. That line plainly addresses “quick”-ness in the second sense—a supposedly not-yet-human entity’s change (by animation) into a human organism. So both Coke and Blackstone effectively taught that abortions were common-law heinous misdemeanors from the sixth week of pregnancy.
Roe contradicts this, launching its discussion of the common law by citing Coke and Blackstone for its claim that “[i]t is undisputed that at common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy— was not an indictable offense.”
Again, Coke and Blackstone cited only Bracton, who was referring to a living child, animated by a human form or soul, months before the mother would feel “recognizable movement” around the “16th to the 18th week.” A leading American case cited by Roe made this clear. Relying on Bracton-Coke-Blackstone, Chief Justice Shaw for the Supreme Judicial Court of Massachusetts held in Commonwealth v. Parker that indictments for abortion must aver that the woman “was quick with child,” but explicitly declined to hold that this means she has “felt the child alive and quick within her.” …
Antebellum and ratification eras
The high-water mark of treating quickening (felt movement) as relevant was the early nineteenth century; by the last third, that line was virtually gone as it was always destined to be—denounced by the medico-legal treatises as groundless because formation and animation occur at conception. The same treatises also regarded the old Bracton-Coke-Blackstone version of “quick with child” (around six weeks) as equally ridiculous.
With modern scientific embryology, that Bracton test was compelled, by its own rationale, to recognize personhood from conception even in the cramped, defendant-solicitous criminal law. Thus, the influential and widely circulated 1803 textbook Medical Ethics explained that “to extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man.”
What these treatises taught about the unborn— many describing their destruction as murder or indistinguishable from infanticide —was vigorously promoted and re-asserted in professional medical associations, legal education, and state legislatures. The American Medical Association in 1859 dismissed the fiction “that the foetus is not alive till after the period of quickening” and urged correction of any “defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.”
The leading American treatise on criminal law mocked the pegging of legal protection to felt quickening and effectively buried the Bracton-Coke quickening-as-animation criterion.
Wharton’s Criminal Law, from its first edition in 1846, argued that the criminal law of offenses against unborn persons should be aligned with the law of property, guardianship and equity as expounded in cases such as Hall v. Hancock, adopting authoritative English equity precedents, which recognized unborn rights at all stages of development.
Thus, by 1866 Chief Justice Tenney of the Maine Supreme Court could accurately report that “the [quickening] distinction ... has been abandoned by jurists in all countries where an enlightened jurisprudence exists in practice.”
Whatever the confusions about “quick” and “quickening,” the common law indisputably, always and everywhere, made any attempted abortion a serious indictable offense from at least 15 weeks (give or take three). Virtually unanimous legislative, professional, and public support for this part of the nation’s tradition of ordered liberty, and then for following the science and removing the temporal limit in the criminal law’s protection, has been extensively documented by scholars since Roe and Casey. This confirms that “any person” in the fundamental-rights-regarding Equal Protection and Due Process Clauses includes all unborn human beings.
So does the fact that, while prevailing (though not universal ) nineteenth-century common law made only post-“quickening” abortion indictable, the common law always regarded pre-quickening abortion as “an action without lawful purpose,” as Chief Justice Shaw mildly put it in 1849, such that abortions accidentally causing consenting mothers’ deaths constituted murders. So even pre-quickening abortion was always a kind of inchoate felony for felony-murder purposes.
State abortion statutes
The Union in 1868 comprised 37 States, of which 30 had statutory abortion prohibitions. Most were classified as defining “offenses against the person,” with 27 applying before and after quickening. And Congress, legislating for Alaska and the District of Columbia shortly after ratification of the Fourteenth Amendment, referred to unborn children as “person[s].”
Many such statutes were adopted or strengthened within a year or two of the Amendment’s ratification, as in New York, Alabama, and Vermont. In Florida, Ohio, and Illinois, the very legislatures ratifying the Amendment also banned abortion at all stages.
About a month after ratifying the Amendment, Ohio’s senate committee concluded that given the “now ... unanimous opinion that the foetus in utero is alive from the very moment of conception,” “no opinion could be more erroneous” than “that the life of the foetus commences only with quickening, that to destroy the embryo before that period is not child murder.”
Thus, state legislators not only viewed these laws as consistent with the Fourteenth Amendment, but also—like any legally informed reader—would have understood equality of fundamental rights for “any person” to include the unborn …
Roe and Casey’s arguments against fetal personhood are unsound
Since Roe, the only Justice to defend Roe’s denial of constitutional personhood—Justice Stevens—clung to a single plank: Roe’s claim that unborn children’s right to guardians ad litem to protect their property interests is no recognition of personhood because those interests are not perfected until birth.
This plank is no affirmative case, merely a response to one counterargument, and still it fails—attempting to drum up a constitutional principle from one narrowly stated sub-constitutional technical rule while ignoring others reflecting the principle declared by Blackstone, Shaw and the Lord Chancellors whose rulings they cited: The unborn child “is a person in rerum naturâ” under “the civil and common law” and “to all intents and purposes[.]”
Thus, the child in utero has had substantive rights to receive income or get an injunction against waste, sufficiently vested to serve her seamlessly through birth and infancy. Then there are the vested rights of the unborn, enforced by courts against their parents’ competing rights-claims, in parens patriae cases ordering blood transfusions, etc. These civil rights to life—which could hardly override parental rights unless the unborn were themselves persons—had to be ignored by Roe and by Justice Stevens. Likewise, the convictions, now as then, for violations of unborn children’s right to life as enforced in feticide laws.
Roe’s grounds are utterly untenable
Roe’s counterarguments merit no deference, Roe having disqualified itself from constitutional-settlement status by refusing to appoint a guardian ad litem or hear the contemporaneous Illinois appeal involving an unborn child so represented —and its points fail anyway.
Roe produced three reasons not to recognize unborn humans as persons. Its textual reason, that “person” as used elsewhere in the Constitution gave no “assurance” of “pre-natal application,” was concededly inconclusive, and in fact proves too much. Its pragmatic reason was so implausible that it was framed in questions, not propositions. And its historical reason was a cluster of gross errors drawn solely from two articles by Cyril Means. (No other writer on legal history was cited.) His first article, written while he was general counsel of National Abortion Rights Action League, had been refuted.
The second was so recent that no scholar had gotten to examine its sources, and so flawed that it was known to “fudge” the history even by counsel for Jane Roe who cited it. Once scrutinized, its sources crumbled, as did Roe’s consequent assertion of a historic “right to terminate a pregnancy.” …
Finally, Roe uncritically reported Means’s view that “Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law.” That case, R v. Sims, actually disproves the charge: The King’s Bench itself authoritatively stated the unborn-child-protective principles at issue.
Recognizing unborn children as persons requires no irregular remedies or unjust penalties
Recognizing unborn personhood would be a natural exercise of courts’ power to bind parties to a case by applying the law to the facts, disregarding unconstitutional laws, directing lower courts, and enjoining unlawful executive actions. Such a holding would bar lower courts from enjoining prosecutions or vacating convictions of abortionists. Injunctions would lie against officials asked to facilitate abortions, as in cases like Garza v. Hargan, where guardians ad litem could be appointed for the unborn, as before Roe.
While state homicide laws would need to forbid elective abortion, here too courts would be limited to customary remedies. Most States have laws tailormade for “feticide” ; any carve-outs for elective abortion would be disregarded by courts as invalid. New laws reducing unborn protection would face legal challenge like any statute today that decriminalized homicides of some class—say, the cognitively disabled. State regimes invalidated for denying minimal prenatal protection would, absent amendment, revert to the default, general homicide law.
Moreover, equal protection allows States to treat different cases differently, for legitimate ends.
States may consider degrees of culpability as mitigating factors or altogether immunize from prosecution certain participants in wrongful killings. Here such policy choices serve legitimate purposes by fairly balancing the child’s humanity and her unique physical dependence and impact on her mother. And the mother’s constitutional rights could require States to allow urgent or life-saving medical interventions even when these would unavoidably result in fetal death.
An enforcement responsibility would fall to Congress if States failed in their duties, which could follow a personhood holding with proportional legislation under Section 5 of the Amendment to protect the unborn.
The Court should reverse the judgment of the Fifth Circuit and hold that Mississippi’s law is permissible—and required—because the unborn are “person[s]” guaranteed equal protection and due process by the Fourteenth Amendment.
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