Back to the future of abortion law: Roe's rejection of America's history and traditions.

• Author: Keown, John

Abstract: In Roe v. Wade much of Justice Blackmun's 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 nation's history and traditions. This article respectfully questions Justice Blackmun's conclusion and the historians' claim.

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Constitutional litigation, perhaps more than any other kind of legal determination, should be based on fact not fiction, truth not untruths, reality not myth. For it makes a unique contribution to shaping us as the people, the community, we constitute, and the persons, the individuals, we are. (1) In Washington v. Glucksberg 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 Nation's history, legal traditions, and practices." (2) 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 (3) the Court went on to reject the claim that the Constitution contains a fight to assisted suicide.

In determining whether the Constitution contains a right to abortion the nation's history and traditions concerning abortion are no less relevant. It is not surprising, therefore, that in Roe v. Wade, (4) which established such a right, much of Justice Blackmun's 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, (5) 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." (6) 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 (7) It proved influential in both academic and non-academic circles. It was, for example, relied upon by Ronald Dworkin in his argument rejecting constitutional personhood for the unborn. (8)

At the heart of the Brief lay three claims:

* "At the time the Federal Constitution was adopted, abortion was known and not illegal." (9)

* "Nineteenth-century abortion restrictions sought to promote objectives that are today plainly either inapplicable or constitutionally impermissible." (10)

* "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." (11)

This article questions each of these claims. It concludes that Roe was a radical break with the law's historical protection of the unborn child and thereby with its adherence to the principle of the inviolability of human life. (12) It consists of three parts. The first part presents a short history of Anglo-American abortion law. Part two, the main body of the article, illustrates the misunderstanding of that history by Justice Blackmun in Roe and challenges the above three claims made by the Historians' Brief. The third part raises questions about the propriety of so-called "advocacy scholarship."

Anglo-American Law Against Abortion: A Brief 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 law's prohibition of the destruction of a "quick" (formed and ensouled fetus) with the mother's experience of "quickening." In short, the common law consistently prohibited abortion at least after quickening and did so, as the offense's focus on the initiation or at least proof of fetal life illustrates, in order to protect the unborn. (13)

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. (14) 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 and the Historians' Brief 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 Amendment's concept of personal liberty or in the Ninth Amendment's reservation of rights to the people, was sufficiently broad to encompass a woman's 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 woman's 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. (15)

Much of Blackmun's 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 man's attitudes toward the abortion procedure over the centuries." (16) Blackmun continued that before addressing the appellant's 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." (17) 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." (18) 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. (19) "This is of some importance," continued the opinion, because American courts had followed Coke's 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." (20) Blackmun then reviewed the development of anti-abortion legislation in England. He began with Lord Ellenborough's 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...