Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

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No. 19-1392

IN THE

Supreme Court of the United States

_________

THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.,

Respondents.

_________

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

_________

BRIEF FOR AMICI CURIAE AMERICAN

HISTORICAL ASSOCIATION AND

ORGANIZATION OF AMERICAN HISTORIANS

IN SUPPORT OF RESPONDENTS

_________

JESSICA L. ELLSWORTH

Counsel of Record

KAITLYN A. GOLDEN

ALICIA J. PALLER

DANIELLE DESAULNIERS STEMPEL

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

jessica.ellsworth@hoganlovells.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT ................................................. 2

ARGUMENT ................................................................ 5

II.

THE EARLY UNITED STATES

FOLLOWED THE COMMON LAW

IN GOVERNING ABORTION ......................... 5

The Common Law Did Not

Criminalize Abortions In All

Stages Of Pregnancy ................................ 5

America Adopted The Common

Law Governing Abortion .......................... 7

Pre-1700 Cases Do Not Support

The View That The Common

Law Or Early America

Criminalized All Abortion ...................... 11

STATES SLOWLY BEGAN

REGULATING ABORTION IN THE

1820s ............................................................... 14

III. STATES RESTRICTED ABORTION

MORE STRINGENTLY

FOLLOWING AN ELITE-DRIVEN

PHYSICIANS’ CAMPAIGN BUILT

ON MIXED AND

DISCRIMINATORY MOTIVES ..................... 18

Constitutionally Impermissible

Motives Influenced Storer, Other

Physicians, And Legislators ................... 20

TABLE OF CONTENTS—Continued

Page

This Campaign Had Only

Partial Success In Replacing The

Common Law With State

Statutes And Did Not Fully

Convince The Public ............................... 26

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Abrams v. Foshee,

3 Clarke 274 (Iowa 1856) ....................................... 8

Alden v. Maine,

527 U.S. 706 (1999) ................................................ 7

Commonwealth v. Demain,

1 Brightly 441 (Pa. 1846) ..................................... 10

Commonwealth v. Parker,

50 Mass. (9 Met.) 263 (1845) ............................. 7, 8

Eggart v. State,

40 Fla. 527 (1898)................................................... 8

Illinois ex rel. McCollum v. Bd. of Educ. of

Sch. Dist. No. 71, Champaign Cnty.,

333 U.S. 203 (1948) ................................................ 2

In re Stillbirth of Agnita Hendricks’ Bastard Child (1679), in Records of the

Court of New Castle on Delaware 16761681, at 274-275 (1904)........................................ 13

Mills v. Commonwealth,

13 Pa. 631 (1850) ........................................ 9, 10, 11

Mitchell v. Commonwealth,

78 Ky. 204 (1879) ..................................... 6, 8, 9, 10

Moore v. City of E. Cleveland,

431 U.S. 494 (1977) ................................................ 2

Proprietary v. Brooks,

10 Md. Archives 464-465 (1656) .......................... 13

Proprietary v. Lambrozo,

53 Md. Archives 387-391 (1663) .......................... 13

TABLE OF AUTHORITIES—Continued

Page(s)

Proprietary v. Mitchell,

10 Md. Archives 80-81, 177-186 (1652) ............... 13

Regina v. Wycherley,

8 Car. & P. 262 (1838).................................... 10, 11

Roe v. Wade,

410 U.S. 113 (1973) ...................................... passim

Smith v. Gaffard,

31 Ala. 45 (1857) .................................................... 8

Smith v. State,

33 Me. 48 (1851) ..................................................... 8

State v. Cooper,

22 N.J.L. 52 (1849) ....................................... passim

State v. Slagle,

83 N.C. 630 (1880).................................................. 9

Thornburgh v. Am. Coll. of Obstetricians

& Gynecologists,

476 U.S. 747 (1986) ................................................ 2

STATUTES:

1 Gen. Laws of the Territory of Kansas ch.

28, §§ 9-10, at 232-233 (1859) (retained

in State of Kansas, 1861) ..................................... 28

30 Gen. Statutes of the State of Rhode Island and Providence Plantations ch. 228,

§ 23, at 541 (1872) ................................................ 26

1867 Ohio Laws 135-136 ........................................ 26

OTHER AUTHORITIES:

Acquittal of Dr. Shove, N.Y. Evening Post,

Oct. 19, 1846......................................................... 19

TABLE OF AUTHORITIES—Continued

Page(s)

Additional Report from the Select Committee To Whom Was Referred S.B. No.

285, 63 J. of Senate of State of Ohio,

app. 233 (1867) ..................................................... 27

Address of Henry Miller, M.D., 13 Transactions of the Am. Med. Ass’n 55 (1860) ............. 24

7 Susie M. Ames, Am. Hist. Ass’n, County

Court Records of Accomack-Northampton, Virginia, 1632-1640 (1973) ........................... 13

Annual Report of the City Inspector of the

City of New York for the year ending December 31, 1854 (1855)......................................... 23

G.L. Austin, M.D., Perils of American

Women (1883) ....................................................... 26

C. S. Bacon, M.D., The Duty of the Medical Profession in Relation to Criminal

Abortion, 7 Ill. Med. J. 18 (1905) ......................... 29

Oliver L. Barbour, The Magistrate’s Criminal Law, a Practical Treatise on the Jurisdiction, Duty, and Authority of Justices of the Peace in the State of New

York in Criminal Cases (Albany, WM. &

A. Gould & Co., 1841) .......................................... 10

John B. Beck, M.D., Researches in Medicine and Medical Jurisprudence (Albany, E. Bliss, 2d ed. 1835).................................. 10

1 Theodric Romeyn Beck, Elements of

Medical Jurisprudence (Albany, Webster and Skinners, E.W. Skinner & Co.

1823) ..................................................................... 15

TABLE OF AUTHORITIES—Continued

Page(s)

Bills Approved and Signed by the Governor, Middlebury (VT) Register (Dec. 3,

1867) ..................................................................... 27

1 Joel Prentiss Bishop, Commentaries on

the Criminal Law § 386 (1856) ............................ 11

“B.” Dr. Charles Buckingham, The Report

Upon Criminal Abortions, 56 Boston

Med. & Surgical J. 346 (1857) ............................. 19

L. C. Butler, M.D., The Decadence of the

American Race, as Exhibited in the Registration Reports of Massachusetts, Vermont [and Rhode Island]; The Cause

and the Remedy, 77 Boston Med. & Surgical J. 89 (1867) .................................................. 27

Simone M. Caron, Who Chooses? American Reproductive History since 1830

(2008) .................................................. 20, 21, 24, 27

Conclusion of the Trial of Dr. Moses P.

Clark & Elizabeth M. Clark, Boston

Herald, June 26, 1850 .......................................... 19

D.F. Condie, Review 19, 78 Am. J. Med.

Scis. 465 (1860) .................................................... 25

Criminal Abortion, 62 Boston Med. &

Surgical J. 65 (1860) ............................................ 25

Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of

the Crown, and Criminal Causes (E. &

R. Brooke 1797) ...................................................... 5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

John A.G. Davis, A Treatise on Criminal

Law with an Exposition of the Office

and Authority of Justices of the Peace in

Virginia (Phila., C. Sherman & Co.

1838) ..................................................................... 10

D.H., On Producing Abortion: A Physician’s Reply to the Solicitations of a

Married Woman to Produce a Miscarriage for Her, 17 Nashville J. Med. &

Surgery 200 (1876) ............................................... 25

Dr. Ephraim Whitney Discharged, as also

Benjamin Welch and Wife, Boston Daily

Times: Police Court, Jan. 1, 1845 ........................ 17

Dr. James H. Smith, New London (CT)

Daily Star, April 20, 1852 .................................... 19

Frederick N. Dyer, Champion of Women

and the Unborn: Horatio Robinson

Storer, M.D. (1999)............................................... 26

Frederick N. Dyer, The Physicians’ Crusade against Abortion (2005) ......................... 21, 24

Editorial, Criminal Abortions, 14 Buff.

Med. J. 247 (1858) ................................................ 25

Fleta, in 72 Publications of the Selden Society (H.G. Richardson & G.O. Sayles

eds. trans. 1955) ............................................... 6, 12

Fourteenth Report to the Legislature of

Massachusetts, Relating to the Registry

and Returns of Births, Marriages, and

Deaths in the Commonwealth for the

Year Ending December 31, 1855 (1857) .............. 23

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Ralph Frasca, Legacy of Ignorance: Abortion and Journalism in the Early Republic, in Life and Learning XVI: University Faculty for Life Conference at

Villanova University (2006)................................. 16

Henry Gibbons, Sr., M.D., On Foeticide,

Transactions of the Cal. State Med.

Soc’y (pamphlet 1878) .......................................... 25

J. David Hacker, Ready, Willing, and

Able? Impediments to the Onset of Marital Fertility Decline in the U.S., 53 Demography 1657 (2016) ......................................... 22

Matthew Hale, Pleas of the Crown: A Methodical Summary (P.R. Glazebrook ed.,

1972) (1678) ............................................................ 6

O. E. Herrick, M.D, Abortion and its Lesson, Mich. Med. News (Jan. 10, 1882) ................. 29

Infanticide, Chi. Times, Dec. 12-24, 1888 .............. 29

L.S. Joynes, M.D., On Some of the Legal

Relations of the Foetus in Utero, Va.

Med. J. 187 (Sept. 1856) ........................................ 7

Medicus, Suffolk District Medical Society,

2 Med. World 211 (1857) ...................................... 19

Henry Miller, Memorial to the Governor

and Legislature of the State of Rhode Island (1860) ........................................................... 24

James C. Mohr, Abortion in America: The

Origins and Evolution of A National

Policy, 1800-1900 (1978) .............................. passim

TABLE OF AUTHORITIES—Continued

Page(s)

James C. Mohr, Doctors and the Law:

Medical Jurisprudence in NineteenthCentury America (1993) ....................................... 15

Wolfgang Muller, The Criminalization of

Abortion in the West (2012).................................. 12

Municipal Court, Boston Courier, Sept. 9,

1844 ...................................................................... 17

Municipal Court, Boston Daily Times,

Dec. 19, 1844 ........................................................ 17

Andrew Nebinger, M.D., Criminal Abortion: Its Extent and Prevention (1870)..... 23, 28, 30

Montrose A. Pallen, M.D., Foeticide, or

Criminal Abortion, 3 Med. Archives 193

(1869) .................................................. 23, 26, 28, 29

Alison M. Parker, Articulating Rights:

Nineteenth-Century American Women

on Race, Reform, and the State (2010) ................ 25

Eugene Quay, Justifiable Abortion—Medical and Legal Foundations, 49 Geo. L.J.

395 (1961) ..................................................... passim

Leslie J. Reagan, When Abortion Was

a Crime: Women, Medicine, and Law

in the United States 1867-1973

(1997) .................................................. 21, 26, 29, 30

Report of the Trial of Ammi Rogers (Oct.

5-7, 1820) ........................................................ 14, 15

Henry Roscoe, et al., A Digest of the Law

of Evidence in Criminal Cases (London,

William Benning & Co., 3d ed. 1846) .................... 9

TABLE OF AUTHORITIES—Continued

Page(s)

1 William Oldnall Russell et al., A Treatise on Crimes and Indictable Misdemeanors (Phila., T. & J.W. Johnson, 4th

ed. 1841) ............................................................. 6, 9

Edward Shorter, A History of Women’s

Bodies (1982) ........................................................ 14

Carla Spivack, To “Bring Down the Flowers”: The Cultural Context of Abortion

Law in Early Modern England, 14 Wm.

& Mary J. of Women & L. 107 (2007).................. 12

Springfield Daily Republican, Dec. 27,

1867 ...................................................................... 28

Horatio R. Storer, Contributions to Obstetric Jurisprudence: Criminal Abortion, pt. II, 3 N. Am. Medico-Chirurgical

Rev., Original Commc’ns art. I, at 260

(1859) .................................................................... 22

Horatio Storer, Criminal Abortion in

America (Phila., J.B. Lippincott & Co.

1860) ..................................................................... 18

Horatio R. Storer, M.D., On Criminal

Abortion in America (1860)............................ 22, 25

Horatio Robinson Storer, On the Decrease

of the Rate of Increase of Population

Now Obtaining in Europe and America,

43 Am. J. Sci. & Arts 141 (1867) ................... 22, 23

Horatio Robinson Storer, Why Not? A

Book For Every Woman 64 (2d ed. 1868) ...... 20, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Horatio Storer et al., Suffolk Dist. Med.

Soc’y, Report of the Committee on Criminal Abortion (1857) .............................................. 22

Alfred Swaine Taylor et al., A Manual of

Medical Jurisprudence (Phila., H.C.

Lea, 6th ed. 1866)................................................... 6

The Death of Sarah Decker, Boston Courier, Oct. 11, 1845................................................. 16

The Murder Trial in Philadelphia, NewBedford Mercury, Feb. 1, 1839 ............................ 17

The Trial of Doctor William Graves, N.H.

Patriot & State Gazette, Dec. 31, 1838 ............... 17

Trial of Dr. John Stevens, Boston Herald,

Mar. 23, 1849 ....................................................... 19

Trial of Fenner Ballou and Dr. Alexander

S. Butler for the Murder of Maria Aldrich, Boston Daily Times, Jan. 1, 1845 ............. 17

Trial of Madame Restell, alias Ann

Lohman for Abortion and Causing the

Death of Mrs. Purdy, New York City,

1841 ...................................................................... 16

1 St. George Tucker, Blackstone’s Commentaries (William Young Birch &

Abraham Small eds. 1803)........................... 5, 8, 10

Francis Wharton, A Treatise on the Criminal Law of the United States (Phila.,

James Kay, Jun. and Bro., 2d ed. 1852)........ 10, 11

xii

TABLE OF AUTHORITIES—Continued

Page(s)

James Wilson, Natural Rights of Individuals (1790), reprinted in 2 The Works of

James Wilson 316 (James DeWitt Andrews ed., Chi., Callaghan & Co. 1896) ................ 7

INTERESTS OF AMICI CURIAE1

This brief, based on decades of study and research

by professional historians, aims to provide an accurate historical perspective as the Court considers the

State of Mississippi’s challenge to a woman’s right to

abortion, a right that was affirmed by the Court in Roe

v. Wade.

The American Historical Association (AHA) is the

largest professional organization (11,500 members) in

the world devoted to the study and promotion of history and historical thinking. It is a non-profit membership organization, founded in 1884 and incorporated by Congress in 1889. The AHA provides leadership to the discipline on such issues as academic freedom, access to archives, professional standards, and

the centrality of history to public culture.

The Organization of American Historians (OAH) is

the largest scholarly organization devoted to the history of the United States, and to promoting excellence

in the scholarship, teaching, and presentation of that

history. An international non-profit membership organization, the OAH has over 5,500 members who are

university and college professors as well as individuals employed in a variety of scholarly and institutional

settings, including libraries, museums, national

parks, and historical societies. The OAH is committed

to the principle that the past is a key to understanding

All parties have consented to the filing of this amicus brief.

Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or in part, and no such counsel or party made a

monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae or their

counsel made a monetary contribution to the preparation or submission of this brief.

(1)

the present, and has an interest—as a steward of history, not as an advocate of a particular legal standard—to ensure that the Court is presented with an accurate portrayal of American history and traditions.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

When the United States was founded and for many

subsequent decades, Americans relied on the English

common law. The common law did not regulate abortion in early pregnancy. Indeed, the common law did

not even recognize abortion as occurring at that stage.

That is because the common law did not legally

acknowledge a fetus as existing separately from a

pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as

the 25th week of pregnancy. This was a subjective

standard decided by the pregnant woman alone and

was not considered accurately ascertainable by other

means.

The history and traditions of the United States inform modern abortion jurisprudence and deserve

great weight. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986);

Moore v. City of E. Cleveland, 431 U.S. 494 (1977);

Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist.

No. 71, Champaign Cnty., 333 U.S. 203 (1948). This

Court recognized as much in Roe v. Wade, examining

the nation’s “history of abortion” to help explain “the

state purposes and interests behind the criminal abortion laws.” 410 U.S. 113, 129 (1973). After parsing

the available historical information, the Court determined that not all abortion was illegal at common law

at the time of the adoption of the Constitution. Id. at

140. Indeed, the Court held: “At least with respect to

the early stage of pregnancy,” meaning prior to quickening, “and very possibly without such a limitation,

the opportunity to make this choice was present in

this country well into the nineteenth century. Even

later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.” Id.

at 140-141.

These central claims were accurate in Roe and remain so today. In the five decades since Roe, our ability to confirm this history has grown through the digitization of historical newspapers and records. These

records show that the influence of the common law

persisted even as states slowly began to create laws of

their own. Up to the Civil War, the majority of state

abortion laws either codified the common law by prohibiting abortion only in later stages of pregnancy, or

followed the common law’s reasoning by punishing

abortion prior to quickening more lightly. Some

states, including Mississippi, continued to conform to

the common law via statute until the mid-twentieth

century.

The new and stricter statutes enacted in the 1840s

to 1850s were often a response to alarming newspaper

stories about women’s deaths from abortion. Yet despite these new laws on the books, abortion convictions remained rare. Frustrated with what he viewed

as lax laws and insufficient enforcement, in 1857, Dr.

Horatio Storer mounted a calculated effort to pass

more stringent legislation and gained the support of

the newly-formed American Medical Association.

Mixed motives drove these physicians’ zeal, including

consternation over immigrant Catholics out-reproducing native white Protestants, and resentment of married women apparently shunning their proper roles as

mothers by choosing abortion. Their concerted efforts

to strengthen abortion prohibitions resulted in more

punitive statutes.

But Storer and his allies were not universally successful. Although they persuaded many doctors and

legislators, abortions continued taking place, and

many ordinary citizens continued to believe that abortion prior to quickening was not a crime. Nor did

Storer’s organized attack result in complete legal rejection of the common law’s reasoning: as of 1868,

nearly one-third of states, including Mississippi, continued to draw on the common law, either by prohibiting only post-quickening abortions, or by imposing a

lighter sentence on pre-quickening abortions.

Newly accessible historical evidence further refutes

any claim that, from the adoption of the Constitution

through 1868, our nation had a settled view on the

criminality of abortion. If it had been widely accepted

that all abortions were criminal, there would have

been no need for the physicians’ campaign. If the common law had been fully rejected, states would not have

continued to differentiate between abortions at different stages of pregnancy. As we understand now better

than ever before, American history and tradition regarding abortion under the common law undergirds

Roe v. Wade’s holding that women have a constitutional right to decide for themselves whether to choose

to terminate a pregnancy.

ARGUMENT

I. THE EARLY UNITED STATES FOLLOWED

THE COMMON LAW IN GOVERNING

ABORTION.

At common law, as explained by authorities such as

Coke and Blackstone, life was deemed legally to begin

only when a pregnant woman sensed the fetus stirring

in her womb. Accordingly, the common law did not

prohibit abortion prior to that point. This commonlaw principle relied heavily on the woman’s experience, as only she could know when this stirring—commonly called quickening—had occurred. Early American law enunciated and followed this same femalecentric principle: abortion was not recognized or prohibited until a pregnant woman felt the fetus move.

A. The Common Law Did Not Criminalize

Abortions In All Stages Of Pregnancy.

The common-law principle, under which abortion

was not criminal before a woman recognized quickening, reflected a legal tenet, not a moral judgment. As

Blackstone explained in his Commentaries on the

Common Law, life “begins in contemplation of law a[s]

soon as an infant is able to stir in the mother’s womb.”

1 St. George Tucker, Blackstone’s Commentaries 129

(William Young Birch & Abraham Small eds. 1803)

(hereinafter, “Blackstone”). Blackstone’s view echoed

that of prior authorities, including Coke, Fleta, and

Hale. See, e.g., Edward Coke, The Third Part of the

Institutes of the Laws of England: Concerning High

Treason, and Other Pleas of the Crown, and Criminal

Causes 50 (E. & R. Brooke 1797) (explaining in discussing what constituted murder that, “[i]f 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 misprison [misdemeanor],

and no murder”); Matthew Hale, Pleas of the Crown:

A Methodical Summary 53 (P.R. Glazebrook ed., 1972)

(1678) (similar); Fleta, in 72 Publications of the Selden

Society 60-61 (H.G. Richardson & G.O. Sayles eds.

trans. 1955) (similar).

Only the pregnant woman could definitively determine whether terminating a pregnancy at a given

time was permissible or prohibited, because only she

could detect whether this “stirring”—also known as

“quickening”—had occurred.2 See Alfred Swaine Taylor et al., A Manual of Medical Jurisprudence 421

(Phila., H.C. Lea, 6th ed. 1866) (“No evidence but that

of the female can satisfactorily establish the fact of

quickening.”). A woman’s perception and recognition

of movement signified in the common law that the fetus had an existence separate from hers. For the lawyers and judges announcing and applying this

Nineteenth century sources used “quick” and “quickening” consistently to mean the woman’s perception of fetal movement.

1 William Oldnall Russell et al., A Treatise on Crimes and Indictable Misdemeanors 553 (Phila., T. & J.W. Johnson, 4th ed. 1841)

(“The words ‘quick with child’ are to be construed according to

the common understanding, in which they signify that the

woman has felt the child move within her.”); State v. Cooper, 22

N.J.L. 52, 57 (1849) (rejecting the claim that “quick with child”

means “having conceived,” and explaining that “[t]here is no

foundation whatever in law for this distinction”). Because only

the pregnant woman definitely knew whether quickening had occurred, courts often accepted that a woman “big” or “great” with

child was post-quickening. Cooper, 22 N.L.J. at 55 (“the term

‘big’ or ‘great’ is obviously used as tantamount to ‘quick’ ”); see

Mitchell v. Commonwealth, 78 Ky. 204, 209 (1879) (“while it is

not alleged that the woman was quick with child, it is charged

that she was pregnant and big with child”).

principle, “[i]t [was] not material whether, speaking

with physiological accuracy, life may be said to commence at the moment of quickening, or at the moment

of conception, or at some intervening period.” Cooper,

22 N.J.L. at 54. That is because, “[i]n contemplation

of law life commences at the moment of quickening, at

that moment when the embryo gives the first physical

proof of life.” Id. Accordingly, under the common law,

a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move.

B. America Adopted The Common Law Governing Abortion.

Blackstone’s “works constituted the preeminent authority on English law for the founding generation.”

Alden v. Maine, 527 U.S. 706, 715 (1999). James Wilson, who crafted the preamble to the U.S. Constitution, quoted and endorsed Blackstone’s words in his

seminal lectures of 1790: “In the contemplation of

law, life begins when the infant is first able to stir in

the womb.” James Wilson, Natural Rights of Individuals (1790), reprinted in 2 The Works of James Wilson

316 (James DeWitt Andrews ed., Chi., Callaghan &

Co. 1896).

In practice, this meant that early American law did

not recognize abortion before the fetus “stir[red],” see

id., which nineteenth-century writers on medical jurisprudence acknowledged could occur as late as 25

weeks, see, e.g., L.S. Joynes, M.D., On Some of the Legal Relations of the Foetus in Utero, Va. Med. J. 187

(Sept. 1856). For example, the Massachusetts Supreme Judicial Court wrote in 1845 that, “at common

law, no indictment will lie, for attempts to procure

abortion with the consent of the mother, until she is

quick with child.” Commonwealth v. Parker, 50 Mass.

(9 Met.) 263, 265-266 (1845). As it explained, the common law considered “the child [to have] a separate and

independent existence” only “when the embryo had

advanced to that degree of maturity designated by the

terms ‘quick with child,’ ” even though an infant in

utero was “regarded as a person in being” prospectively for certain civil law purposes, as Blackstone had

clarified. Id. at 266; see Blackstone, supra, at 129. In

support, Parker cited Blackstone and Coke, and noted

that “the more ancient authorities of Bracton and

Fleta” agreed. 50 Mass. at 266. Later cases cited Parker’s discussion of the common law as definitive precedent. See, e.g., Smith v. State, 33 Me. 48, 55 (1851);

Abrams v. Foshee, 3 Clarke 274, 278 (Iowa 1856);

Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell, 78

Ky. at 206; Eggart v. State, 40 Fla. 527, 532 (1898).

Other courts reached the same conclusion. In State

v. Cooper, the New Jersey Supreme Court explained

that, prior to the enactment of the first English statute criminalizing abortion in 1803, there was “no precedent, no authority, nor even a dictum * * * which recognizes the mere procuring of an abortion as a crime

known to the law.” 22 N.J.L. at 55. It therefore concluded: “[T]he procuring of an abortion by the mother,

or by another with her assent, unless the mother be

quick with child, is not an indictable offence at the

common law * * * . There is neither precedent nor authority to support it.” Id. at 58. And because the common law did not criminalize the procuring of an abortion, it also did not criminalize attempting to do so.

Id. The court also rejected the prosecution’s claim

that such an attempt was an offense against the fetus.

“[T]he very point of inquiry is, whether that be at all

an offence or not, and whether the child be in esse [in

being], so that any crime can be committed against its

person.” Id. at 54.

The outlier, Mills v. Commonwealth, 13 Pa. 631

(1850), rejected the quickening distinction only in

dicta and then was heavily criticized as having no basis in precedent. In Mills, Pennsylvania charged the

defendant with “intent to cause and procure the miscarriage and abortion of” a woman who was “pregnant

and big with child,” meaning post-quickening. Id. at

633-634; see supra, n.2. Despite this fact, Mills opined

that the common law’s approach to abortion “never

ought to have been the law anywhere” because any

abortion was “the destruction of gestation, by wicked

means and against nature.” 13 Pa. at 633. This naturalistic view about what the common law should

have been lacked any basis in precedent, and other

courts rejected it. Mitchell, 78 Ky. at 206-207.3

Legal treatises likewise consistently enunciated the

common-law principle, except when describing statutes that states had enacted to replace it. These treatises echoed Blackstone’s view about when life began.

And, like Blackstone, these sources explained that the

reason for this principle was the legal belief that a fetus was not considered a cognizable life for purposes

of the law until quickening. See, e.g., Henry Roscoe,

et al., A Digest of the Law of Evidence in Criminal

Cases 652 (London, William Benning & Co., 3d ed.

1846) (“A child in the womb is considered pars viscerum matris [part of the mother’s body], and not possessing an individual existence, and cannot therefore

be the subject of murder.”); Russell, supra, 424, 553;

Although State v. Slagle quoted Mills with approval, that too

was dicta: the alleged abortion at issue occurred after quickening. 83 N.C. 630, 632 (1880).

John A.G. Davis, A Treatise on Criminal Law with an

Exposition of the Office and Authority of Justices of the

Peace in Virginia 339 (Phila., C. Sherman & Co. 1838);

Oliver L. Barbour, The Magistrate’s Criminal Law, a

Practical Treatise on the Jurisdiction, Duty, and Authority of Justices of the Peace in the State of New York

in Criminal Cases 30, 60 (Albany, WM. & A. Gould &

Co., 1841). Even Dr. John Beck, who disapproved of

abortion, had to acknowledge that “[t]he English law

‘considers life not to commence before the infant is

able to stir in its mother’s womb.’ ” John B. Beck,

M.D., Researches in Medicine and Medical Jurisprudence 27 (Albany, E. Bliss, 2d ed. 1835) (quoting

Blackstone, supra, at 129).

The few mid-nineteenth century treatises outside

this consensus usually relied on the critique voiced in

Mills. One was authored by Francis Wharton, who

opposed allowing any abortion; he argued that the fetus was as injured a week before quickening as a week

after. Francis Wharton, A Treatise on the Criminal

Law of the United States 456-457 (Phila., James Kay,

Jun. and Bro., 2d ed. 1852). Besides the dicta from

Mills, he referred to two other cases. But he cited a

statement in Commonwealth v. Demain, which was,

as he later conceded, not the court’s holding but part

of the argument Wharton himself had advanced as

counsel in the case. See Wharton, supra, at 455-456;

Commonwealth v. Demain, 1 Brightly 441, 443 (Pa.

1846). Similarly, a statement from Regina v. Wycherley, an English case that he said distinguished “quick

with child” from “with quick child,” see Wharton, supra, at 457 (citing Regina v. Wycherley, 8 Car. & P.

262, 264 (1838)), offered no legal basis for this distinction. Cooper, 22 N.J.L. at 57; Mitchell, 78 Ky. at 207208; see supra, n.2. The one other significant treatise

that refused to acknowledge that the common law did

not prohibit abortion in all stages of pregnancy likewise relied solely on Mills and Wycherley. 1 Joel

Prentiss Bishop, Commentaries on the Criminal Law

§ 386 (1856).

Neither Wharton nor Bishop emphasized fetal protection in critiquing the common law on abortion. Rather, they focused on motives they saw as socially desirable in extraneous ways. Wharton wanted to regulate abortion from “a social and a moral point of view,”

but his moral arguments focused on “illicit” sexual activity, not on fetal life. Wharton, supra, at 457. He

argued that permitting any abortions to occur would

“remov[e] * * * the chief restraint upon illicit intercourse,” and thereby undermine “the institution of

marriage.” Id. Bishop thought that abortion should

always be prohibited because it was “a crime against

population”—rather than particularly because it

harmed the fetus. Bishop, supra, § 387. In his view,

by reducing population growth, which Bishop considered the basis for national growth, abortion depleted

national wealth. Id. (reiterating this view).

C. Pre-1700 Cases Do Not Support The View

That The Common Law Or Early America

Criminalized All Abortion.

Contrary to the assertion of an amicus for the State,

medieval and colonial cases do not support the view

that the common law criminalized all abortion

throughout pregnancy. See Dellapenna Amicus Br. 713. As noted above, the significant common-law authorities recognized abortion as criminal only in the

latter part of pregnancy. See supra, pp. 5-7.

The cases identified from the 1200s-1500s deal with

felonious percussio (battery) on a pregnant woman,

not abortion. These cases concern unwanted assaults

that harmed a woman and endangered or ended her

pregnancy. A woman so injured could then bring a

private action seeking punishment of her batterer.

These are not “abortion” cases as we understand

that term today. Wolfgang Muller, The Criminalization of Abortion in the West 75 (2012) (“[P]rocurement

of abortion in the modern acceptance of the term, performed with the consent of the pregnant mother, had

never held a place among thirteenth-century appeals

and indictments. Adjudication of criminal percussiones had been the sole concern.”). They focused on

the injury to the woman, not the termination of the

fetus. Carla Spivack, To “Bring Down the Flowers”:

The Cultural Context of Abortion Law in Early Modern England, 14 Wm. & Mary J. of Women & L. 107,

110 (2007) (“[T]hese cases resemble modern torts and

are based on recognition of the injury done to the

woman.”).4 They do not involve voluntary efforts by a

pregnant woman to terminate her pregnancy. See

Fleta, supra, at 88 (“A woman may bring an appeal

* * * for a quickened child in her womb wickedly

crushed or wickedly killed by a blow.”).

The few known American colonial cases likewise do

not suggest that abortions were criminal throughout

pregnancy. These cases involved one individual accusing another of wrongdoing, not a prosecution by colonial authorities for a known crime. For example,

one supposed “indictment” from colonial Delaware

was merely the standard examination of an unmarried woman to ascertain the father of her stillborn

Spivack has also debunked the claim that proceedings in ecclesiastical courts support the view that pre-quickening abortions

were prohibited at common law. See Spivack, supra, at 142-150.

“bastard” child; when she named him, she accused

him of beating her during pregnancy, but the examiners did not take further action. In re Stillbirth of Agnita Hendricks’ Bastard Child (1679), in Records of

the Court of New Castle on Delaware 1676-1681, at

274-275 (1904). A supposed “abortion” in colonial Virginia involved only a contested accusation of one

neighbor against another. 7 Susie M. Ames, Am. Hist.

Ass’n, County Court Records of Accomack-Northampton, Virginia, 1632-1640, at 29-32, 37, 43 (1973). In a

Maryland case, a wife sued her husband after he beat

her, causing miscarriage, but the wife later retracted

her allegation. Proprietary v. Brooks, 10 Md. Archives

464-465 (1656).

Two other supposed “abortion” cases from the Catholic colony of Maryland targeted religious outsiders

who did not adhere to community sexual mores. Proprietary v. Mitchell involved a known atheist suspected of murdering his wife, who also committed

multiple sexual offenses with three women, including

giving one a potion to end her pregnancy (which nonetheless continued to term). 10 Md. Archives 80-81,

177-186 (1652). He was convicted for several offenses

at once, including “murderous intention,” but it is unclear whether that referred to his dead wife or the fetus. Id. Proprietary v. Lambrozo targeted a Jewish

doctor who raped his servant and then cohabited with

her, impregnated her, aborted the pregnancy, then

married her. 53 Md. Archives 387-391 (1663). Once

they were married, the former servant retracted her

story. Id.

Even if these “cases” were to support the claim that

abortion was always criminally prosecuted many centuries ago, the State’s amicus has no evidence that

these cases were known to Americans in the eighteenth and nineteenth centuries. Nor are we aware of

any. Rather, ample historical evidence demonstrates

that Americans knew of and followed the common law,

which allowed extensive decision-making by a pregnant woman.

II. STATES SLOWLY BEGAN REGULATING

ABORTION IN THE 1820s.

The common law continued to govern abortion in

America until the 1820s and in some states for considerably longer. The earliest statutes, enacted between

1821 and 1839, were written at the time of state code

creation or revision; several simply included abortion

drugs in legislation punishing poisonous medicines.

See James C. Mohr, Abortion in America: The Origins

and Evolution of A National Policy, 1800-1900, at 2045 (1978). Three states, including Mississippi in 1839,

codified the common law when creating a first abortion statute. Eugene Quay, Justifiable Abortion—

Medical and Legal Foundations, 49 Geo. L.J. 395, 450,

453, 489 (1961). A surge of sensationalized news reports on women’s deaths during abortion later in the

1830s and 1840s spurred states to enact further abortion restrictions.

1. Connecticut was first in 1821, when it included

abortion in an anti-poisoning statute. Id. at 435, 453.

Abortion-inducing methods in the 1820s (like many

other health remedies) typically required ingesting

potentially risky plant-derived compounds. Edward

Shorter, A History of Women’s Bodies 179-188 (1982).

Connecticut acted in the wake of publicity surrounding the trial of a local minister who had impregnated

a 17-year old and then forced her to ingest an abortion-inducing potion. Report of the Trial of Ammi

Rogers, viii-x (Oct. 5-7, 1820). Even so, Connecticut’s

statute codified the common law. Quay, supra, at 453.

Other states took a different approach. New York

revised its criminal code completely in 1828, and incorporated restrictions on abortion. The legislator in

charge of the revision worked closely with Dr. T.R.

Beck of Albany, who had recently published a work of

medical jurisprudence highly critical of the significance of quickening. 1 Theodric Romeyn Beck, Elements of Medical Jurisprudence 202-203 (Albany,

Webster and Skinners, E.W. Skinner & Co. 1823).

Their collaboration produced the first American law

to stipulate explicitly that abortion before quickening

was punishable by law. James C. Mohr, Doctors and

the Law: Medical Jurisprudence in Nineteenth-Century America 79-82 (1993). But New York retained

the common-law tradition by penalizing abortion before quickening lightly, as a misdemeanor only; abortion afterward was a felony. Quay, supra, at 436.

Some other states followed, likewise differentiating

penalties when they eventually punished abortion.

Many also copied New York’s innovation, likely due to

Dr. Beck’s influence, of allowing abortions if needed to

save the mother’s life, as attested by two physicians.

See id.; Beck, Elements of Medical Jurisprudence, supra, at 277, 201.

2. Up to 1839, only eight states regulated abortion

by statute, while the other 18 states retained the common law. See Quay, supra, at 435-437. A surge of

sensational stories in newspapers, beginning in the

1840s, changed the situation. Mohr, Abortion in

America, supra, at 46-85. Newspapers at the time

printed detailed trial reports, including witness testimony. Recently digitized newspaper databases reveal

only a dozen individual cases reported between 1820

and 1839, growing to roughly 50 cases during the

1840s, and more than 150 in the 1850s, a crescendo

resounding in newspapers across the nation.5

Abortion cases became newsworthy when they involved a woman’s death, triggering a public inquest.

In the large majority of trials reported in newspapers,

the coverage focused on the death of the woman, not

on the fetus. See, e.g., Ralph Frasca, Legacy of Ignorance: Abortion and Journalism in the Early Republic,

in Life and Learning XVI: University Faculty for Life

Conference at Villanova University 457 (2006) (observing that “solicitations of public sympathy” for the

fetus were “absent from newspapers of the Early Republic”). These cases played an outsized role in shaping public attitudes, given that the circumstances of

uneventful abortions were not publicized.

Nearly all trial stories presented the narrative of a

vulnerable and victimized young unmarried woman,

led astray by an aggressive seducer. Trial reports

with sordid details occupied newspaper pages for days

or weeks, generating sympathy for the victim far beyond her own locale, since the news traveled widely.

The fetus was mentioned only to clarify its gestational

age, if necessary. See, e.g., The Death of Sarah Decker,

Boston Courier, Oct. 11, 1845, at 2; Trial of Madame

Restell, alias Ann Lohman for Abortion and Causing

the Death of Mrs. Purdy 5-8, 14-17, New York City,

1841.

This data was collected using a systematic search in genealogybank.com to locate news reports involving abortion cases between 1800 and 1860, which found approximately 200 cases, locating two to thirty newspaper articles on each.

As these sensationalized reports became common,

states began to enact or alter abortion laws. For example, soon after dozens of newspapers lavished attention on two riveting cases in the late 1830s (in Lowell, Massachusetts and Philadelphia), Maine enacted

a statute in 1840 that overrode the common law, punishing anyone who performed an abortion with five

years in prison. Mohr, Abortion in America, supra, at

41; Quay, supra, at 478; see also The Trial of Doctor

William Graves, N.H. Patriot & State Gazette, Dec.

31, 1838; The Murder Trial in Philadelphia, NewBedford Mercury, Feb. 1, 1839, at 4.

The Massachusetts legislature likewise acted after

Boston’s Grand Jury implored them, in the midst of

three cases that saturated the Boston news in 1844.

Municipal Court, Boston Courier, Sept. 9, 1844, at 2.

In two cases, a woman died. Trial of Fenner Ballou

and Dr. Alexander S. Butler for the Murder of Maria

Aldrich, Boston Daily Times, Jan. 1, 1845, at 2; Dr.

Ephraim Whitney Discharged, as also Benjamin

Welch and Wife, Boston Daily Times: Police Court,

Jan. 1, 1845, at 2. The third case concerned three

married women receiving abortions.

Municipal

Court, Boston Daily Times, Dec. 19, 1844, at 2. In response, Massachusetts made providing an abortion at

any stage a misdemeanor, but tied the punishment to

the fate of the woman: If the woman died, it became

an egregious crime deserving a five- to twenty-year

sentence in state prison; if the woman survived, the

sentence was only one to seven years in a local jail.

Quay, supra, at 481.

By 1859, fifteen of thirty-three states continued to

follow the common law: in ten, abortion during any

stage of pregnancy was not criminalized by statute;6

in five, abortion was criminalized by statute only after

quickening. 7 Of the remaining eighteen states, six

continued to bear the imprint of the common law by

penalizing abortion differently depending on the stage

of pregnancy.8

III. STATES RESTRICTED ABORTION MORE

STRINGENTLY FOLLOWING AN ELITEDRIVEN PHYSICIANS’ CAMPAIGN BUILT

MIXED

AND

DISCRIMINATORY

MOTIVES.

Abortion restrictions accelerated in the 1860s because of a national campaign initiated by gynecologist

Dr. Horatio Storer in 1857. In Storer’s view, neither

the American tradition of the common law nor existing state laws sufficiently protected fetal life: “By the

Common Law and by many of our State Codes foetal

life, per se, is almost wholly ignored and its destruction unpunished; abortion in every case being considered an offence mainly against the mother, and as

such, unless fatal to her, a mere misdemeanor, or

wholly disregarded.” Horatio Storer, Criminal Abortion in America 1 (Phila., J.B. Lippincott & Co. 1860).

See Quay, supra, at 455-456 (Delaware), 457-458 (Florida), 459460 (Georgia), 474-476 (Kentucky), 478-480 (Maryland), 502-503

(North Carolina), 506-509 (Pennsylvania), 509-510 (Rhode Island), 510-512 (South Carolina), 513 (Tennessee).

See Quay, supra, at 450 (Arkansas), 453 (Connecticut), 486-487

(Minnesota), 489 (Mississippi), 505 (Oregon).

See Quay, supra, at 483-84 (Michigan), 490 (Missouri), 493-494

(New Hampshire), 500 (New York), 504 (Ohio), 517 (Virginia).

Even in states that criminalized abortion, convictions were rare.9 A Boston physician in 1857 questioned the worth of anti-abortion laws: “The law now

is strict and severe against the practice, and the penalty high for the offence; but who ever knew of a conviction under it? * * * The difficulty is, in getting the

proof * * * .” Medicus, Suffolk District Medical Society, 2 Med. World 211, 212 (1857). Multiple hurdles

derailed most cases, including the absence of credible

witnesses to a private medical procedure, technical

flaws in the pleadings, and questions about the

woman’s reputation for chastity or truth. See, e.g.,

Conclusion of the Trial of Dr. Moses P. Clark & Elizabeth M. Clark, Boston Herald, June 26, 1850, at 2; Dr.

James H. Smith, New London (CT) Daily Star, April

20, 1852, at 2; Acquittal of Dr. Shove, N.Y. Evening

Post, Oct. 19, 1846, at 2.

Storer, perturbed by what he viewed as insufficient

or lax statutes and enforcement regimes, launched a

campaign to shift the course of American abortion

law. Indeed, because of the hold of common-law tradition, Storer’s initial efforts immediately met resistance from Boston colleagues. When he proposed

criminalizing all abortion and holding women criminally responsible too, several colleagues scoffed, one of

them predicting that Storer would “fail to convince the

public that abortion in the early months is a crime.”

“B.” Dr. Charles Buckingham, The Report Upon Criminal Abortions, 56 Boston Med. & Surgical J. 346, 346

(1857).

The District Attorney for Boston said he was informed of thirty

to fifty women’s abortion deaths but prosecuted very few of them.

See Trial of Dr. John Stevens, Boston Herald, Mar. 23, 1849, at

But Storer enlisted support from the newly-formed

all-male American Medical Association (AMA), playing to certain physicians’ fears that “abortions are infinitely more frequent among Protestant women than

among Catholic,” and encouraging their disapproval

of women shirking the maternal duties for which they

were “physiologically constituted” and “destined by

nature.” Horatio Robinson Storer, Why Not? A Book

For Every Woman 64, 75-76 (2d ed. 1868). Storer’s

message gained acceptance among certain influential

physicians who began to repeat his themes, mounting

a calculated and widespread attack on abortion that

influenced legislators and additional physicians coastto-coast.

Despite this organized attack on the common-law

reasoning embedded in American history and tradition, many states continued to reflect the common-law

tenet that not all abortions were prohibited. As of

1868, nearly half of the states continued either not to

prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening. Even in

states that prohibited all abortions, the common-law

view still resonated among the public. As contemporaneous sources demonstrate, ordinary citizens continued to believe that not all abortions were criminal

and that women held the power to determine whether

to terminate a pregnancy.

A. Constitutionally Impermissible Motives

Influenced Storer, Other Physicians, And

Legislators.

Historians widely acknowledge that Storer launched

a coordinated national attack on abortion beginning

in 1857. See, e.g., Mohr, Abortion in America, supra,

at 147-159; Simone M. Caron, Who Chooses?

American Reproductive History since 1830, at 21-22

(2008); Leslie J. Reagan, When Abortion Was a Crime:

Women, Medicine, and Law in the United States 18671973, at 11-12 (1997); see generally Frederick N. Dyer,

The Physicians’ Crusade against Abortion (2005).

Storer believed that abortions were endangering what

he saw as the ideal America: a society of white

Protestants in which women adhered strictly to their

proper “duties”—marriage and childbearing.10 While

Storer believed that abortion was always morally

wrong, two other concerns were inextricable from his

condemnation of abortion on that ground: his ethnocentric concerns about rising immigrant birthrates

and his blame of married Protestant women for abandoning their primary responsibility of motherhood,

thus becoming especially culpable for the falling birth

rate.

1. Storer claimed that white, American-born, middle-class married women were increasingly using

abortion to limit the size of their families, causing precipitous fertility decline in New England. Horatio

Storer et al., Suffolk Dist. Med. Soc’y, Report of the

Committee on Criminal Abortion 10 (1857) (insisting

that “marriage, where the parties shrink from its

highest responsibilities, is nothing less than legalized

prostitution”). He viewed these women’s actions as

unnatural, selfish, and contrary to their “duties” as

wives. See Storer, Why Not? A Book For Every

Woman, supra, at 64, 74-76. Often he cited his own

experience, that within six months he was called to

attend fifteen married women suffering from the

This Court has long denounced this view as part of America’s

regrettable history of constitutionally-prohibited sex discrimination. See Br. for Respondents at 40-41 (collecting sources).

aftereffects of a botched abortion. Storer et al., Report

of the Committee on Criminal Abortion, supra, at 4;

Horatio R. Storer, M.D., On Criminal Abortion in

America 31 (1860).

In contrast, Storer claimed that immigrants, being

mostly Catholic, obeyed the Pope’s prohibition of abortion. See Storer, On Criminal Abortion in America,

supra, at 38-42. Storer warned that foreign immigrants’ large families were poised to overwhelm the

white Protestant “American” population. Horatio

Robinson Storer, On the Decrease of the Rate of Increase of Population Now Obtaining in Europe and

America, 43 Am. J. Sci. & Arts 141 (1867) (hereinafter,

“On the Decrease”) (first published as Horatio R.

Storer, Contributions to Obstetric Jurisprudence:

Criminal Abortion, pt. II, 3 N. Am. Medico-Chirurgical Rev., Original Commc’ns art. I, at 260 (1859)). He

stressed that in Massachusetts, “the excess of the

births over the deaths, has been wholly of those of recent foreign origin,” which was “explained by the

watchful protection exercised by the Catholic church

over foetal life.” Id. at 145-146, 155.

Storer bolstered his thematic arguments with a cascade of alarming statistics that he claimed showed an

epidemic of abortions and its impact on native-born

fertility. The native-born population in the Northeast

was indeed producing fewer children, owing to a number of causes. Storer blamed abortion alone. See id.

at 145-155; cf. J. David Hacker, Ready, Willing, and

Able? Impediments to the Onset of Marital Fertility

Decline in the U.S., 53 Demography 1657, 1687 (2016).

Storer’s statistical methods began with poor data and

were rife with erroneous assumptions. For example,

he scoured vital registers for Massachusetts, New

York City, and European cities for recorded stillbirths

and premature births (of live infants who soon died),

and falsely claimed that an accelerating increase in

these numbers was due to criminal abortion, when in

fact it was due to differing practices in categorizing

infant mortality. Fourteenth Report to the Legislature

of Massachusetts, Relating to the Registry and Returns

of Births, Marriages, and Deaths in the Commonwealth for the Year Ending December 31, 1855, at 98,

106 (1857); Annual Report of the City Inspector of the

City of New York for the year ending December 31,

1854, at 3, 8, 10-14, 218 (1855). He also selectively

chose data to make comparisons to exaggerate change

over time in the frequency of “abortions.” See, e.g.,

Storer, On the Decrease, supra, at 152-153 (“[T]he frequency of abortions * * * is at least 8 times as great in

Massachusetts as in the worst statistics of the city of

New York.”). Although his numerical data were invented and inaccurate, they covered page after page

of his writings and appeared to be unassailable, encouraging readers to believe his shocking conclusions.

See, e.g., Montrose A. Pallen, M.D., Foeticide, or Criminal Abortion, 3 Med. Archives 193, 198 (1869) (“such

a paper as * * * Storer’s * * * [shows] a national crime

of abortion!”); Andrew Nebinger, M.D., Criminal

Abortion: Its Extent and Prevention 5-8 (1870) (noting

Storer’s “figures of unquestioned and unquestionable

correctness” and “where the foreign population

abounds, we find an abundance of children”).

With these themes and alarming statistics in hand,

Storer took his agenda to the AMA. He convinced the

nascent organization to sign on to his project, thereby

gaining a means to reach other trained male physicians, governors, and legislators nationwide. Storer

ghost-wrote a “memorial” that was signed by the AMA

president and sent to every governor, urging that laws

be made more stringent. See Henry Miller, Memorial

to the Governor and Legislature of the State of Rhode

Island (1860), reprinted in Caron, supra, app. B. He

also ghost-wrote a letter that the AMA sent to every

medical society urging it to pressure its state’s governor and legislature. See id.; Address of Henry Miller,

M.D., 13 Transactions of the Am. Med. Ass’n 55, 56

(1860) (thanking Storer for “preparation of the Memorial as well as of the Address * * * to * * * State Medical Societies”).

The mailings sent to all of them included Storer’s

statistical article (introduced by the cover letter as

“reliable, and not to be controverted”) and a model

statute that made procuring, aiding, or attempting

miscarriage on “a woman”—with no mention of pregnancy—a felony, unless advised by two consulting

physicians to be “necessary to preserve the life of such

woman, or of her unborn child.” Caron, supra, apps.

B & C (reprinting model law). The model act criminalized equally a woman seeking abortion or operating on herself, and also punished advertisements or

mailings implying abortion services. Caron, supra,

app. C. Consistent with Storer’s paternalistic and

ethnocentric concerns, his model allowed the court to

increase the punishment for an aborting woman if she

were married. Id.; Dyer, supra, at 77-78.

2. Thanks in large part to his influence over the

AMA, Storer’s paternalistic and anti-immigrant arguments reached doctors and legislators nationwide.

Positive reviews of Storer’s writings reiterated his emphases, including “the comparative size of families

now and formerly,” “the pecuniary success of known

abortionists,” and the “constantly increasing demand

for abortion-producing nostrums.” D.F. Condie, Review 19, 78 Am. J. Med. Scis. 465 (1860) (reviewing

Horatio R. Storer, M.D., On Criminal Abortion in

America (1860)). Colleagues persuaded by Storer

broadcast his statistics, his contemptuous portrayal of

women, and his anti-immigrant fears. See, e.g., Editorial, Criminal Abortions, 14 Buff. Med. J. 247, 247251 (1858); Criminal Abortion, 62 Boston Med. & Surgical J. 65 (1860). Storer’s claims about “native stock”

ceding population growth to “foreigners” traveled intact to the West Coast, where a leader in the California State Medical Society, Dr. Henry Gibbons Sr.,

thundered against “feticide,” warning of the prospective “deterioration of race * * * demonstrated by

[Storer’s] statistics.” Henry Gibbons, Sr., M.D., On

Foeticide, Transactions of the Cal. State Med. Soc’y 45 (pamphlet 1878).

Certain doctors seemed to welcome the opportunity

to chastise women for abandoning their maternal

roles and seeking other opportunities. See D.H., On

Producing Abortion: A Physician’s Reply to the Solicitations of a Married Woman to Produce a Miscarriage

for Her, 17 Nashville J. Med. & Surgery 200, 201

(1876) (“[Y]ou have no right to attempt to escape from

what you knew beforehand is one of [marriage’s] most

natural consequences, and a duty you tacitly promised

the State * * * .”). A minority of women of the respectable Protestant sort that Storer reproved for abortion

were indeed seeking higher education, professional

employment opportunities, and even the right to vote.

See generally Alison M. Parker, Articulating Rights:

Nineteenth-Century American Women on Race, Reform, and the State (2010). There was much controversy over whether higher education and similar pursuits for women compromised their “natural” role as

mothers. See Pallen, supra, at 205 (“Woman’s rights

and woman’s sphere are, as understood by the American public, quite different from that understood by us

as Physicians, or as Anatomists, or Physiologists.”);

G.L. Austin, M.D., Perils of American Women 143

(1883) (“[W]oman must realize that she shines and

thrives best in the home.”).11

B. This Campaign Had Only Partial Success

In Replacing The Common Law With State

Statutes And Did Not Fully Convince The

Public.

Storer’s efforts had mixed success. In the initial

wake of his campaign between 1860 and 1868, five

states enacted new statutes criminalizing abortion;12

and another five strengthened existing statutes. 13

More states responded in the 1870s and 1880s. See

Mohr, Abortion in America, supra, at 200-230.

Storer’s direct influence can be seen in legislative

committees citing his demographic claims and his

Storer’s and his colleagues’ animus against women taking anything other than domestic roles was also clear in their efforts to

keep women from entering medical schools and becoming members of the AMA. Reagan, supra, at 11-12; Frederick N. Dyer,

Champion of Women and the Unborn: Horatio Robinson Storer,

M.D. 374-376 (1999) (Storer arguing before the AMA that

“women * * * are inferior [to men] in the matter of judgment”).

Pennsylvania, 1860, see Quay, supra, at 507; Nevada territory,

1861 (retained in state of Nevada, 1868), see id. at 493; Florida,

1868, see id. at 457-458; Maryland, 1868, see id. at 479-480;

Rhode Island, 1861 and 1867, see 30 Gen. Statutes of the State

of Rhode Island and Providence Plantations ch. 228, § 23, at 541

(1872).

Connecticut, 1860, see Quay, supra, at 454; Oregon, 1864, see

id. at 505-506; Illinois, 1867, see id. at 467; Vermont, 1867, see

id. at 516; Ohio, 1867, see 1867 Ohio Laws 135-136.

views on married women to justify strengthening

anti-abortion laws. For example, Ohio cited Storer’s

writing in support of “proper legislation” to suppress

abortion, noting that women “avoiding the duties and

responsibilities of married life * * * are, in effect, living in a state of legalized prostitution” and would

leave “our broad and fertile prairies to be settled only

by the children of aliens.” Additional Report from the

Select Committee To Whom Was Referred S.B. No.

285, 63 J. of Senate of State of Ohio, app. 233, 235

(1867). A Storer-inspired address to the Vermont

Medical Society in 1867 resulted in the group pressing

the legislature to adopt overall lengthier punishments

for abortion, and longer still if the woman died. L. C.

Butler, M.D., The Decadence of the American Race, as

Exhibited in the Registration Reports of Massachusetts, Vermont [and Rhode Island]; The Cause and the

Remedy, 77 Boston Med. & Surgical J. 89, 96-99

(1867); see Bills Approved and Signed by the Governor,

Middlebury (VT) Register (Dec. 3, 1867), at 2. The

Medical Society of Rhode Island, upset about a local

influx of immigrants, similarly drew on Storer’s nativist writings in drafting a bill against abortion and lobbying for it in the state legislature. Caron, supra, at

36-37.

In spite of this campaign, the common-law view persisted in American law and popular opinion. By the

time the Fourteenth Amendment was ratified in 1868,

nearly half of the states retained some vestige of the

common law: in eleven states abortions remained legal before quickening; 14 and of the twenty-six

See Quay, supra, at 449-450 (Arkansas), 455-456 (Delaware),

459-460 (Georgia), 474-476 (Kentucky), 485-488 (Minnesota),

remaining states, seven imposed a lesser punishment

during that stage.15

The campaign, too, converted more legislators than

ordinary citizens. For example, after an abortion trial

in Massachusetts in 1867 resulted in a hung jury, the

Northampton Free Press noted that “public sentiment

in Hampden county does not deem abortion a crime at

all * * * and possibly public sentiment is just about the

same everywhere else as in Hampden county.”

Springfield Daily Republican, Dec. 27, 1867, at 4.

Doctors continued to observe the persistence of common-law reasoning among their patients. One doctor,

for example, concluded in 1870 that “many individuals, otherwise learned, * * * do not look upon abortion

as foeticide.” Pallen, supra, at 197. He further noted

(among other instances) that a married woman’s pastor told her that abortion prior to quickening was “no

crime, because the child was not alive.” Id. Numerous

other doctors reported to the Philadelphia County

Medical Society that their women patients “almost

universally” believed that a pregnancy was not meaningfully real “until the fourth and half-month.”

Nebinger, supra, at 19.

Abortions continued to take place, legally in some

states and illegally in others. Not all physicians participated in the campaign organized by Storer, and

488-489 (Mississippi), 491-492 (Nebraska), 502-503 (North Carolina), 510-512 (South Carolina), 513 (Tennessee), 518 (West Virginia).

See Quay, supra, at 458-459 (Florida), 482-485 (Michigan),

489-490 (Missouri), 493-495 (New Hampshire), 506-509 (Pennsylvania), 516-517 (Virginia); 1 Gen. Laws of the Territory of

Kansas ch. 28, §§ 9-10, at 232-233 (1859) (retained in State of

Kansas, 1861).

some continued to provide abortions. See, e.g., Pallen,

supra, at 204 (noting that “[a]mong the medical fraternity” there are doctors “who are thought by the

public to be upright, honorable men,” and who provide

abortions); Infanticide, Chi. Times, Dec. 12-24, 1888;

Reagan, supra, at 50-57 (revealing that many doctors

with standard medical degrees, members of medical

societies, remained willing to perform abortions or

supply referrals).

In the years following the campaign, low prosecution

and conviction rates persisted. Several doctors publicly commented on the rarity of convictions of abortion providers. See, e.g., Pallen, supra, at 203 (“[N]o

one within my recollection has ever been punished for

it.”); O. E. Herrick, M.D, Abortion and its Lesson,

Mich. Med. News (Jan. 10, 1882) (“Conviction is the

exception, instead of * * * the rule.”). Police investigators and prosecutors often concentrated only on

abortions in which a woman died, especially if she

made a dying declaration that named the abortion

provider. Nonetheless, in Chicago in the beginning of

the twentieth century, coroners’ inquests outnumbered cases going to grand juries by 5 to 1 on the average, and only a small fraction of cases proceeding to

trial obtained conviction. Reagan, supra, 116-130; see

also Mohr, Abortion in America, supra, at 230-237. A

Chicago Medical Society symposium of 1904 emphasized the ineffectiveness of abortion law: Dr. C. S. Bacon, among others, lamented how difficult it was to

obtain sufficient evidence of abortion unless the

woman died—and even then, her family would cover

it up. C. S. Bacon, M.D., The Duty of the Medical Profession in Relation to Criminal Abortion, 7 Ill. Med. J.

18, 18-24 (1905).

Thus even while abortion became more stringently

criminalized, the ultimate object of the physicians’

campaign was foiled by persisting popular belief that

not all abortions were criminal and decision-making

over terminating pregnancies belonged to pregnant

women. Reagan, supra, at 21-36; see also Nebinger,

supra, at 16 (“[M]any ladies of elevated standing in

society and even in the church, are in the habit of having abortion produced without the [least] hesitancy as

to any impropriety in the procedure.”).

In sum, despite coordinated efforts to undermine the

common-law reasoning embedded in American history and tradition, the physicians’ campaign did not

succeed in displacing longstanding common-law principles. Many state statutes retained the common-law

approach. Even where states prohibited abortion,

common-law reasoning resonated in public opinion,

deeply affecting the practice of abortion. These historical findings confirm that Roe’s central conclusion

was correct: American history and traditions from the

founding to the post-Civil War years included a

woman’s ability to make decisions regarding abortion,

as far as allowed by the common law.

CONCLUSION

For the foregoing reasons, the decisions below

should be affirmed.

Respectfully submitted,

JESSICA L. ELLSWORTH

Counsel of Record

KAITLYN A. GOLDEN

ALICIA J. PALLER

DANIELLE DESAULNIERS

STEMPEL

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

jessica.ellsworth@hoganlovells.com

Counsel for Amici Curiae

SEPTEMBER 20, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.