VII. The States Provided Due Process Protection of the Lives of Unborn Children.

The writ de ventre inspiciendo, to ascertain whether a woman convicted of a capital crime was quick with child, was allowed by the common law, in order to guard against the taking of the life of an unborn child for the crime of the mother. (258)

--Justice Horace Gray

The common law required a stay of execution of a female should she be found to be pregnant with a living child--"quick with child." (259) Per the introductory quote from the Union Pacific R. Co. v. Botsford (260) decision, the common law writ de ventre inspiciendo was recognized by the Supreme Court as a due process protection for the life of the unborn child whose mother was convicted of a capital crime. Cyril Means (NARAL's General Counsel at the time Roe was decided) admitted in The Phoenix, "this had been the rule in England from at least as early as 1349." (261) There is a unanimity of opinion that the several states adopted this common law rule by decision or statute. (262) In 1914, Bouvier's Law Dictionary attested to the writ, also known as pleading pregnancy, being "recognized in America" under an entry for "jury of women." (163) Bouvier's continues:

"While the cases are very rare, there is no evidence (or authority, it might be added) that a jury of women is not a part of the machinery of the law in those states in which the common law prevails." 12 A. & E. Encyc. of L. 331. Such a jury was impaneled in a criminal case in Chester county, Pa., June 27, 1689; 5 Haz. Pa. Reg. 158; Records of Upland Court now in the Pennsylvania Historical Society. See 48 Am. L. Rev. 280. It may be safely affirmed that no woman who pleads pregnancy in delay of execution will in any common-law jurisdiction be sentenced to death without examination into the truth of the fact pleaded, and in absence of other statutory provision, it is difficult to see how she could be deprived of this common-law right. (264) The Chester county Pennsylvania case from June 27,1689 was recorded by Samuel Hazard in his Register of Pennsylvania. (265) It was reported as a criminal conversation case, which would in the present times be considered a civil proceeding for the tort of alienation of affections. (266) Yet, in colonial Pennsylvania it was a criminal proceeding; the record reads:

On the 27th of the 6th too. 1689--A case of crim-con came before the court; the parties having confessed themselves guilty of the charge were presented by the Grand Inquest, "upon which they are both called to the bar, where they made their appearance, and upon her further confession and submission a jury of women, whose names are under written order to inspect." (267) The reporting of sexual matters at the time was rather cryptic, as is this case, the exact nature of the crime is not mentioned. (268) Yet, we are informed of the jury of matrons finding, "They make a return that they cannot find she is (as charged) neither be they sure she is not." (269) Bouvier's also cites two cases involving capital offenses wherein the writ was issued, State v. Arden, (270) a 1795 case in South Carolina, and the 1778 Massachusetts case of Commonwealth v. Bathsheba Spooner. (271)

The State v. Arden case is significant in that the criteria of "quick with child" is replaced with simple "pregnancy": "The prisoner was then asked if she had any thing to offer why sentence of death should not be pronounced against her? Upon which she pleaded pregnancy." (272) An explanatory note in the margin states, "Pregnancy may be pleaded by a woman, after conviction, before sentence of...