Amicus Curiae Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)

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Nos. 91-744 and 91-902

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IN THE |

Supreme Cont of the United States

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners and :

Cross-Respendents,

Vv.

ROBERT P. CASEY, et al.,

Respondents and

Cross-Petitioners.

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE AMERICAN ACADEMY OF

MEDICAL ETHICS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS AND CROSS-

PETITIONERS ROBERT P. CASEY et al.

JOSEPH W. DELLAPENNA

Professor of Law

Villanova University

Villanova, PA 19085

(215) 645-7075

Attorney for Amicus Curiae

American Academy of

April 6, 1992 Medical Ethics

WILSON - Eras Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

’

‘RECT AVAIL ARIE COPY

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. .......................... matiesiamsiadlade Vv

pe | ieshiapeianiiaabenicdtabbeiaies Vv

United States Constitution ....................0.-c..ccccceseeereeeeees vi

American Statutes, Ordinances and Other Legisla-

RRO Tae cE vi

ELE SE NL ED ee vii

English Statutes .............. RES ee a ee ee is xii

Secondary Authorities ....................... A ae OD xiii

SUMMARY OF THE ARGUMENT ................................. 1

FS ET Re Seay Se ee RC 2

I. THE CONSTITUTIONAL STATUS’ OF

ABORTION MUST BE DETERMINED BY

EXAMINING THE DEEPLY-ROOTED TRA-

DITIONS OF ANGLO-AMERICAN SOCIETY

AS EMBODIED IN THE COMMON LAW AND

THE CONSTITUTION ...................... 2

Il. ROE v. WADE, THROUGH ERRONEOUS

READING OF THE HISTORICAL STATUS

OF ABORTION UNDER THE COMMON

LAW, BROKE SHARPLY WITH THE TRA-

DITIONAL VALUES OF THE COMMON

LAW AND OUR CONSTITUTION |... 3

A. Courts, from Roe v. Wade on, Have Relied

on a Deliberately Distorted History of Abor-

ice cetabtncsiecalaatt ccctesciocihsg ana tated ta ae 4

B. In England, from the Beginning of the Com-

mon Law, Courts and Other Respected Au-

thorities Consistently Condemned Abortion... 6

C. English Law Always Prohibited Parents

from Killing Unwanted Children, and Par-

liament and the Courts Took Strong Steps,

Gradually Strengthened over Centuries, to

I 14

TABLE OF CONTENTS—Continued

D. These Laws Were Applied Rigorously in the

RN a

E. When Abortion Became More Common than

Infanticide with the Development of Techni-

cal Means with a Lessened Danger to Her

Life, English and American Law Came to

Emphasize Abortion as the Primary Evil ....

F. The Shift of Emphasis from Infanticide to

Abortion as the Social Evil Represented a

Widely-Shared Consensus on the Value of

Fetal Life, a Consensus that Included Nine-

teenth-Century Feminists and Thus Can

Hardly Be Characterized as a Conspiracy by

Male Physicians and Others to Suppress

REE RRL AC ANE renin a

III. LEGISLATURES ARE THE PROPER FORA

TO RESOLVE THE COMPETING CLAIMS

OF MOTHERS AND THEIR OFFSPRING ___

A. Changes in Medical Technology Are Central

to Proper Resolution of the Controversies

OUR Se titi

B. Legislatures Are Best Placed to Explore

Appropriate Regulatory Response to Chang-

ing Reproductive Technologies...

a ET a

APPENDIX A: INTEREST OF THE AMICUS

MOET EE TET anes

APPENDIX B: WHAT REALLY HAPPENED IN

REX v. de BOURTON?

APPENDIX C: OTHER REPRESENTATIVE ENG-

LISH LEGAL MATERIALS RE.

LATING TO ABORTION

Agnes’s Appeal ( ED cceniniditinisiie eee y

Page

iii

TABLE OF CONTENTS—Continued

Page

Amice’s Appeal (1247) oo... ccc eee eeeeeeeeeeeen 12a

Juliana’s Appeal (12567) 200000 ee eee 13a

Rex v. Code (1281) 2000 l4a

Rez v. Mercer (1285) ..............eccccceeeeeccceeeeeececeeeee aees l4a

| ee 15a

Rex v. Anonymous (1348) 00 l6a

Selected Readings on the Law of Murder (1455-

EES EL ee ienbeieaieideeuninies 16a

Rex v. Lichefeld (1505) 0.000. oe cee eee enereereneeee 18a

Rex v. Wodlake (1530-31) 000000 19a

Cockaine v. Witnam (1577) 0.0.0... eee eee eee 2la

Regina v. Turnour (1581) 22a

Regina v. Sims (1601) seveseceseeeeee 208

Regina v. Webb (1602) oo. eee 24a

Sir Edward Coke, Third Institute (1644)... .. 25a

Rex v. Anonymous (1670) 000 25a

Sir Matthew Hale, History of the Pleas of the

a sunehdeibindadbiddisssconestenesee 26a

I 27a

S| ) ae 8la

APPENDIX D: REPRESENTATIVE EARLY

AMERICAN LEGAL MATERIALS

RELATING TO ABORTION ....... 34a

Proprietary v. Mitchell (1652) 34a

The Midwives’ Ordinance (1716) ............ ielectnatineiaticne 37a

James Parker, Condutor Generalis: Or, the Office,

Duty, and Authority of Justices of the Peace

a aaaeiiiiane 38a

iv v

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page ,

American Cases: Pa

ar’ Hang of New York’s Abortion Statutes Addington v. Texas, 441 U.S. 418 (1979) .

PE SEEN on - 89a Bowers v. Hardwick, 478 U.S. 186 (1986)....-—t«

Resolution of the Medical Society of the State of Burnham v. Superior Court, 110 S. Ct. 2105

New York (Feb. 5, 1867). 44a ME Ie eS re 2

"ee Treatises on American Crimi. “Health, Ines a2 US. 416 see) patente 30

» (aa ge Ria MD =U TS TE

pas Z|, 45a City of Richmond v. J.A. Croson Co., 469 U.S. 469

a tT 48a Tee Pet a 30

Coker v. Georgia, 483 U.S. 584 (1977)... 2

Colony v. Allen, Newport Cnty. Gen. Ct. Trials:

1671-1724A n.p. (Sept. 4, 1683 sess.) 20

Colony v. Powell (Va. 1635), 7 Am. L. Rec. 48

SRE SES ae. as Se 20

Commonwealth v. Bangs, 9 Mass. 387 (1812)... 24

Commonwealth v. Parker, 50 Mass. (9 Met.) 263

SRE ST EAS IRS Es ce Ce 24

Commonwealth v. W.M.W., 3 Pitt. Rep. 462

ERIS ET A Ee Se a 16

Doe v. Bolton, 410 U.S. 179 (1978) ....................-.--. 29

Dougherty v. People, 1 Colo. 514 (1872)... 25

Harmelin v. Michigan, 111 S. Ct. 2680 (1991)... 2

In re the Stillbirth of Agnita Hendricks’ Bastard

Child (Del. 1679), Ct. Rec. of New Castle on

Del. 1676-1681 at 274-275 (1904)... 20

Lamb v. State, 67 Md. 524, 10 A. 208 (1887) _... 24

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

RIES ES CSET See a Ce ee 2

Michael H. v. Gerald D., 491 U.S. 110 (1989) ba 2

Mills v. Commonwealth, 13 Pa. 630 (1850) _.... 24

Mitchell v. Commonwealth, 78 Ky. 204 (1879) 24

Moore v. State, 37 Tex. Crim. 552, 49 S.W. 287

OEE a a 2 16, 24

New State Ice Co. v. Liebman, 285 U.S. 262

a a eee ee ae eee 30

People v. Sessions, 58 Mich. 594, 26 N.W. 291

EE a a eee ee 25

Planned Parenthood of Cent. Mo. v. Danforth, 428

I a a 30

TABLE OF AUTHORITIES—Continued

* Page

Proprietary v. Brooks, 10 Md. Archives 464-465

‘a v. Lambrozo, 58 Md. Achives 387-391

Proprietary v. Mitchell, 10 Md. Archives 171.186

(1652) [quoted in Appendix «=i 19

Proprietary v. Robins, 41 Md. Archives 20 (1658) .. 19

Robins v. Robins, 41 Md. Archives 85 (1658). 19

Roe v. Wade, 410 U.S. 113 se passim

Smith v. State, 33 Me. 48 ee 24, 25

State v. Cooper, 22 N.J.L. 52 (1848). 24, 28

State v. Crook, 16 Utah 212, 51 P. 1091 (1898) "95

State v. Gedicke, 43 N.J.L. 86 (1881)... 25

State v. Howard, 32 Vt. 380 (1859)... —ts«ék

State v. Lee, 69 Conn. 186, 37 A. 75 (1897)... 25

State v. Moore, 52 lowa 128 (1868) [quoted in

-~ geay ER elms 25

State v. Murphy, 27 N.J.L. 112 (1868)... 23

State v. Reed, 45 Ark. 333 REY 24

State v. Slagle, 83 N.C. 630 (1880). Ss

State v. Watson, 30 Kan. 281, 1 P. 770 (1883)... 25

Thornburgh v. American College of Obstetrici

ricians,

476 U.S. 747 (1986) ( Anell ) b aaeemman 29

Webster v. Reproductive Health Services, 4

a can es, 492 U.S.

Worthington v. State, 92 Md. 229 48 A asg

Te Sas ah 23, 24

United States Constitution :

Fourteenth Amendment... 3

American Statutes, Ordinances, and Oth islati

— . er Legislative

Charters & Gen’! L. of the Colony & Prov. of Mass.

Bay 293 (Dane, Prescott, & Story eds. 1814). 20

lll. Rev. Code § 46 ne. Se 28

Me. Rev. Stat., ch. 160, $§ 18, 14 (1840). 28

The Midwives’ Ordinance, Ordinance of the City

of New York, 3 Min. of the Common Council of

N.Y. 122 (1716) [quoted in Appendix D].. 20

vii

TABLE OF AUTHORITIES—Continued

Pa. Daily Legis. Rec. No. 19, at 151 (1860)

Resolution of the Medical Society of the State of

English Cases: |

Agnes’s Appeal (1200, 1 Selden Soc’y 39 (no. 82)

(1887) [translation in Appendix C].............

Agnes’s Appeal, JUST 1/1011, m.59d (Wiltshire

Alexandra's Appeal, JUST 1/833, m.23d (Suffolk

EES Ee aoe Se a

Amice’s Appeal, JUST 1/274, m.14d (1247) [trans-

lation in App. C}............... sdiisedemidaapiigiaaibinamabiearasiitint

Beatriz’s Appeal, JUST 1/579, m.10d (Norfolk

ERS IRE aay cee —

Boleheved’s Appeal, JUST 1/112, m.9d (Cornwall

EE PE ee

Burel’s Appeal (1202), 1 Selden Soc’y 11 (no. 26)

(1887) ........ ae ee nD So ane ee a

Cecily’s Appeal (1249), C. Meekings, Studies in

13th Century Justice and Administration 257

Cockaine v. Witnam (Q.B. 1577), Cro. Eliz. 49,

pl. 4 (1586) [quoted in Appendix C] 0.

Commonwealth v. Carter (1652), Calendar of

Assize Rec.: Kent Indictments, 1649-1659, at

96 (nos. 534, 535) (1989) 000.

Commonwealth v. Foxall (1651, 3 Warwick Cnty.

Rec., Q. Sess. Order Book 50 (S. Ratcliff & H.

Commonwealth v. Simpson (1659), 6 N. Riding Q.

Sess. Rec. 23 (J. Atkinson ed. 1888)...

de Pekering’s Appeal, JUST 1/369, m.36 (Kent

Erneburga’s Appeal, JUST 1/175, m.88 (1249).

Gras’s Appeal (1276?), The London Eyre of 1276

at 73-74 (no. 261) (London Rec. Soc’y 1976).

Hervest’s Appeal, JUST 1/789, m.26d (Hampshire

I I pitied a aii

8,13

viii

TABLE OF AUTHORITIES—Continued

Page

Isabel's Appeal, The London Eyre of 1276, at 62-

64 (nos. 157, 158) (London Rec. Soc’y 1976) ..... 8

Juliana’s Appeal (1256 ?), Somerset Pleas (Civ. &

Crim.) from the Rolls of the Itinerant Justices

$21 (no. 1243) (C. Chadwyck-Healey ed. 1897)

[translation in Appendix Si 2 7

or —— JUST 1/921, m.28 (Sussex Eyre

Wace ecesdesonsbononnnseteunsuueynnneuiusbetedinnetossmmereneneiees:<ce-... 8

la Neweman’s Appeal, JUST 1/833, m.7 (Suffolk

el arcs EE AIC A I ea 8

Mabel’s Appeal, JUST 1/741, m.33 (Shropshire

on) ,, Racine ep ean 8

Margaret's Appeal, JUST 1/174, m.40d (1249?) _.. 8

“aa al JUST 1/579, m.72 (Norfolk Eyre

SOY <stsitasctiineasintaeetencennattenmnettiibetbetdusisaiinlideines i. 8

Modi’s Appeal (1221), 59 Selden Soc’y 560-561

er ale ee i, Re 8

Orscherd’s Appeal (12497), Just. 1/174, m.40d 8,14

Philippa’s Appeal (1276 ?), The London Eyre of

1276 at 51 (no. 187) (London Rec. Soc’y 1976). 8,14

Phina’s Appeal (1246), Just. 1/778, m.57, sum-

marized in C. Meekings, Studies in 13th Cen-

tury Justice and Administration 267 (1981) .... 8

R. v. Adkyns (1600), Calendar of Assize Rec.,

Essex Indictments, Eliz. I at 510 (no. 8054)

(J. Cockburn ed. 1975) 200000 13

R. v. Anonymous (K.B. 1348, Fitzherbert, Graunde

Abridgement, tit. Corone, f. 268r. pl. 263 (1st

ed. 1516) [translation in Appendix C}....... 8,9, 13

R. v. Anonymous (Bury Assizes 1670), M. Hale,

History of Pleas of the Crown 429 (1736)... 12

v. Anonymous (1808), 3 J. Chitty, Criminal

Law 798-801 (1816). 22

R. v. Beare, 2 The Gentleman’s Magazine 931

(Aug. 1732) [quoted in Appendix CC]... 22

R. v. Benetley, JUST 1/789, m.3 (Hampshire

cng 8, et TE a 8

R. v. Berry, MJ/GSR/SF79 (1617), 4 (N.S.)

Cnty. of Middlesex Calendar to the Sess. Rec.

1615-1616, at 292. Sacennataiianiaantrtaiaeaiatinaaaneett 12

TABLE OF AUTHORITIES—Continued

Page

R. v. Boleye, JUST 1,303, m.69d (Shropshire Eyre

fi eR eieeng Ties eR A IO LI a 8, 13,14

R. v. Botevylayn (K.B. 1305), Wiltshire Gaol

Delivery & Trailbaston Trials 1275-1306 at 105,

126, 131 (nos. 576, 800, 854) (R. Pugh ed.

ie a Ped 0 Ed a lek 7

R. v. Brente, JUST 1/186, m.30 (Devon Bgre

aod a pi eto 7,14

R. v. Cheney, JUST 1/323, m.47d (Hertfordshire

SI Sal ts 13

R. v. Cliston, JUST 1/1011, m.62 (Wiltshire Eyre

1288) ....... = SORA el ier ea et AE 7,14

R. v. Cobbeham, JUST 1/547, m.19d (London Eyre

Sees SA le? SSSR As Sl en 7,138

R. v. Code, JUST 1/789, m.1 (Hampshire Eyre

1281) [translation App. C] ..........0.00000000 7,22

R. v. Cokkes (1415), 7 Calendar of Inquisitions

Mise. (Ch.) Preserved in the Pub. Rec. Off.

1399-1422 at 296 (no. 523) (1968)... ha 7,13

R. v. Dada, JUST 1/547A, m.19d (1290, ms. dated

alia ECE Ae Se OS SS, ee 7,13

R. v. de Bourton, Y.B. Mich. 1 Edw 3, f. 23, pl. 28

(K.B. 1327) [translations in Appendix B] ........ 8,9

R. v. Eppinge, JUST 1/547A, m.46 (ms. dated

1321) (London Eyre 1304)... 7,13

R. v. Fookes, ERO (Chelmsford), Q/S/R 222/73

(1618), 19 Calendar of Essex Cnty. Rec., 1611-

a 12

R. v. Godesman, JUST 1/383, mm.18d, 96 (Kent

a 8,14

R. v. Hallibred, ERO (Chelmsford) 0/S/R 236/

102 (1622), 19B Calendar of Essex Cnty. Rec.

1611-1624, at 474 (no. 102)... 12

R. v. Haule, JUST 1/547A, m.20d (London Eyre

1321) [translation in App. C] .....0................... . 4,18

R. v. Hervy, JUST 1/547A, m.40d (1300, ms. dated

RE EAS Se lat 7

R. v. Hodges (1615), 2 Calendar of Middlesex

Cnty. Sess. Rec. 1614-1615 at 345 (1936) __. 12

TABLE OF AUTHORITIES—Continued

R. v. Hokkestere, JUST 1/547A, m.3 (London

fs) aes Sen

R. v. Hore, JUST 1/1011, m.56 (Wiltshire Eyre

RES sa Es eS ane. ea Ce

R. v. Houdydoudy (Coroner’s Inquest 1326), Cal-

endar of Coroner’s Rolls of the City of London

A.D. 1800-1878, at 166 (1918) ..00000..0 ee.

R. v. Kyltavenan (Cork, Ireland 1311), Calendar

of Justiciary Roles or Proc. in the Ct. of the

Justiciar of Lreland I to VII Years of Edward

II, at 193 (Dublin Stationary Off., n.d.) 00...

R. v. Lagott, SRO (Somerset) Q/S 62 (1629), 2

Quarter Sess. Rec. for the Cnty. of Somerset,

Charles I, 1625-1639, at 228 (mo. 16)...

R. v. le Gaoeler, JUST 1/369, m.37d (Kent. Eyre

ERS Ra ra > ihe hovel rst Mac

R. v. le Petiprestre (1244), The London Eyre of

1244 at 48 (no. 116) (London Rec. Soc’y 1970)..

R. v. le Raggede (Dublin, Ireland 1311), Calendar

of Justiciary Roles or Proc. in the Ct. of the

Justiciar of Ireland I to VII Years of Edward II,

at 216 (Dublin Stationary Off., n.d.) 000000000000...

R. v. Lewis, OB/SP/April 1786, nos. 67, 86 (K.B.

RRR oa 8 lat ao Sa aC

R. v. Lichefeld, K.B. 27/974, Rex m.4 (1505)

[translation in Appendix C}...

R. v. Meddowe, Ass. 35/32, m.34 (1591), ‘Calendar

of Assize Rec., Sussex Indictments, Eliz. I, at

233 (no. 1212) LG na a

R. v. Mercer, JUST 1/710, m.45 (Oxford Eyre

1285) [translation in App. C] ......0000000000000000........

R. v. Mondson, JUST 1/527, m.11d (Lincolnshire

Gale ees See

R. v. Neubyr’, JUST 1/924, m.73 (Sussex Eyre

ES SR EL eS CL ag a

R. v. Parker, 73 Eng. Rep. 410 (1580) A

R. v. Poope (1589), Calendar of Assize Rec., Kent

Indictments, Eliz. I at 289 (no. 1751) (J. Cock-

I ;

8, 13

TABLE OF AUTHORITIES—Continued

Page

R. v. Portere (K.B. 1400), The Shropshire Peace

Role 1400-1414 at 57-58 (no. 24) (E. Kimball

ed. 1959) ......... SA Ren ney eee. Cr RO 7,13

R. v. Ragoun, JUST 1/547A, m.55d (London Eyre

ES ae ae ken 7

R. v. Rastone, MJ /SR/552/135, MJ/SBP/1, f. 75

(Middlesex 1616), 3 (N.S.) Cnty. of Middlesex

Calendar of the Sess. Rec. 1615-1616, at 277....... 12

R. v. Reeve, JUST 1/924, m.60 (Sussex Eyre

EERE SR Ea et = a 8,14

R. v. Robinson (Middlesex 1615), 3 (N.S.) Cnty.

of Middlesex Calendar of the Sess. Rec, 1615-

8 RS See oe ee 12

R. v. Robynson, Q/SR 110/68 (Coroner’s Inquest

a, 10

R. v. Rolfe, ERO (chelmsford) QSR/405 /64, 160,

184, QSR/406/43, 110, 112-13 (1665), 23 Calen-

dar of Essex Cnty. QSR 65, 74, 76............00....... 12

R. v. Scharp. The London Eyre of 1276, at 23 (no.

76) (London Rec. Soc’y 1976) ............................. 7

R. v. Scot, JUST 1/547A, m.22 (1291, ms. dated

Td, 7,138

R. v. Senior, 168 Eng. Rep. 1298 (K.B. 1832) Siow 11

R. v. Sims, 75 Eng. Rep. 1075 (Q.B. 1601) [quoted

8 Ee ens ) % 5

R. v. Skel, JUST 1/1098, pt.2, m.79 (Yorkshire

Eyre 1298) .............. EC ee Se oN ae A RED 8,13

R. v. Skotard, JUST 1) 169, m.25 ( Derbyshire

REE RRC es ety ane AT eae re 7,14

R. v. Squire, Gaol Del., ref: MJ/SR 1720 (1687) . 12

R. v. Surgeon, JUST 1/369, m.37d (Kent Eyre

R. v. Tinekler (1781), 1 E. East, Pleas of the

Crown 354 (1806) [quoted in Appendix C] ........ 22

R. v. Turner, MJ /SR/543/143 (f. MSR 111.51),

MJ/SR/544/44, MJ/SBR 2 (1615), 3 (N.S.)

Cnty. of Middlesex Calendar of the Sess. Rec.

EC EI ecw 12

xii

TABLE OF AUTHORITIES—Continued

Page

R. v. Turnour, Assize 35/23/29 (Essex 1581), Cal-

endar of Assize Rec., Essex Indictments, Eliz. I

at 212 (no. 1225) (J. Cockburn ed. 1978)

(translation in Appendix C] 10, 11

R. v. Webb (Q.B. 1602), Calendar of Assize Rec-

ords, Surrey Indictments, Eliz. I at 512 (no.

8146) (J.S. Cockburn ed. 1980) [quoted in

/ «=—i“aéi‘dg CPL Re ee 12

R. v. Whalley, MJ/SR/552/136 (1616), 3 (N.S.)

Cnty. of Middlesex Calendar of the Sess. Rec.

RE TERE IE as Ne 12

R. v. Willson, ERO (Chelmsford) QSR/459/1

(1688), 25 Calendar of Essex Cnty. Quarter

I ge ee 12

162/m1l1d (1531) [translation in Appendix C}.. 10

R. v. Wycherley, 173 Eng. Rep. 486 (N.P. 1838) .. 28

R. v. Wynspere, (Coroner’s Inquest 1503), Pub.

Rec. Off., ref: Ancient Indictments 434 at 12. 10

R. v. Wyntercote, JUST 1/308, m.69d (Hereford

2 RG i eal 8

Rokaf’s Appeal, JUST 1/544, m.55d (Middlesex

RS Ea nee &

Sarah’s Appeal, The London Eyre of 1244, at 50-

51 (no. 124) (London Rec. Soc’y 1970)... &

Sauter’s Appeal (1221), Pleas of the Crown for

Gloucester Cnty. 1221 at 16 (no. 69) (F. Mait-

land el NI a SNe SS: Sea 7

“aaa (1203), 1 Selden Soc’y 32 (no. 73)

BOE ) --nnnvevcsnvennvrernnseestersnnerseneesenessnnessensesnnenstnesenceetsn 7

Sorel’s Appeal (12767), The London Eyre of 1276

at 61 (no. 222) (London Rec. Soc’y 1976) _.... 8

St. Alban’s Appeal (1244), The London Eyre of

1244, at 36 (no. 84) (London Rec. Soc’y 1970). 8

Swayn’s Appeal (1249), Just. 1/359, m.36 ............ fa}

English Statutes:

— Primi, ch. LXX.14 (L.J. Downer ed.

FURS) -nonoceemsueonvcerenoneevesseccorenepenenseneneseseseeaeesttnseneesenses 7

TE aN ll

xiii

TABLE OF AUTHORITIES—Continued

Page

“An Act to Prevent the Destroying and Murder-

ing of Bastard Children”, 21 James I, ch. 27,

a cciriccientenneirnerneinntimetmnatainniuee 19

Lord Ellenborough’s Act, 43 Geo. III, ch. 58

eh ET oe 19, 28, 24

The Offenses against the Persons Act, 7 Will. IV

Rk RY 8 28

Secondary Authorities:

Bruce Ackerman, The Storrs Lecture: Discover-

ing the Constitution, 98 Yale L.J. 1013 (1984).. 2

Susan B. Anthony, Marriage and Maternity, 4 The

Revolution 4 (July 8, 1869) .........................-......... 26

Avicenna, Libri Canonis Medicine (Gerard of

ce eeemnemntiniumnenine 17

John Baker, An Introduction to English Legal

History (3d ed. 1990) ................. pS AS SUS: 8,13

John Baldwin, Reading (Grays Inn c. 1455/60)... 9

Jerome Bates & Edward Zawadski, Criminal Abor-

TT ii teesshlenepeibeetstieninmnbseenaniianens 14, 16, 23

O.W. Bartley, A Treatise on Forensic Medicine

FTI ciiiciincadenssehirdiionepeniausebinienincedussiamintgutenpignappimaates 23

Theodoric Romeyn Beck & John Beck, Elements

of Medical Jurisprudence (1828) ......................-. 23

Before the Bawdy Court (P.E.H. Hair ed. 1972) .... 11

Alexander Bickel, The Least Dangerous Branch

SR PIII cass cnsiceessektinencnnnsnaibiibianbantetingagnainniseiabiongann 2

Alexander Bickel, The Morality of Consent

i ae 27

Joel Prentiss Bishop, Criminal Law (2d ed. 1858).. 24

William Blackstone, Commentaries (1765-1769)... 138

Boke of the Justyces of the Peas (1515), 94

a Os serteignenionmemmane 10

James Boswell, The Kindness of Others: The

Abandonment of Children in Western Europe

from Late Antiquity to the Renaissance (1989)... 18

Britton (F.M. Nichols ed. 1865) ............................. 9

Richard Burn, The Justice of the Peace and the

Parish Officer (3d ed. 1756) ................--00--eseeseeesoees 13

xiv

TABLE OF AUTHORITIES—Continued

a The Anatomy of the Gravid Uterus aa

Sir Raward Coke, Fhird Inctitede (844)

Compleat Herbal (G. Swindells ed. 1787)... 17

Robert Cover, Violence and the Word, 95 Yale L.J.

a 2

Henry de Bracton, On the Laws and Customs of

England (S. Thorne ed. 1968)... 9

Joseph Dellapenna, The History of Abortion:

Technology, Morality, and Law, 40 U. Pitt. L.

_ i atl passim

John D’Emilio & Estelle Freedman, Intimate Mat-

ters: A History of Sexuality in America

a» UP SIR ee ae ea 20, 26

Georges Devereux, A Study of Abortion in Primi-

tive Societies (1955) ... mae ———

Denis Diderot, Encyclopédie (1766)...........—- 98

John Donnison, Midwives and Medical Men

ARERR a,x ot 18

Mise Bisbes Duffy, The Relations of the Sexes

Ronald Dworkin, Law’s Empire (1986) | .

Sir Edward Hyde East, A Treatise on the Pleas of

ee 18, 22, 23

Audrey Eccles, Obstetrics and Gynaecology ry

Tudor and Stuart England (1982) ... “ 14

Michael Etmullerus, Description of All ‘Diseases

— to Men, Women and Children (3d ed.

Marian Faux, Roe v. Wade: The Untold Story of e

the Landmark Supreme Court Decision that

Made Abortion Legal (1988) ............. 4

Fleta (Selden Soc’y ed. 1955) 9

T.R. Forbes, Early Forensic Medicine in England:

a Murder Trial, 36 J. Hist. Med. 296

T.R. Forbes, The Midwife and the Witch (1966) os

Estelle Freedman, Historical Interpretation and

Legal Advocacy: Rethinking the Webster

Amicus Brief, 12 The Pub. Historian 27 (1990) . 6

EE le A

TABLE OF AUTHORITIES—Continued

Page

Shelley Gavigan, The Criminal Sanction as It Re-

lates to Human Reproduction: The Genesis of

the Statutory Prohibition of Abortion, 5 J. Leg.

Fist. BO (10B4) .........00--0.-00-eccceccceccsecseressncssressenseocs 9

Mary Ann Glendon, Abortion and Divorce in West-

OF Lee (IBBT) ......000.ecceceeesosccesccccccsocsececsssesenssessees 29

Linda Gordon, Women’s Body, Women’s Right: A

Social History of Birth Control in America

(BOT) .-.20ceccorereeecsesessasasorsasosneccsnscescrsessecsesenssasoassooenees passim

Michael Gordon, Aesculapius Comes to the Colo-

nies: The Story of the Early Days of Medicine

in the Thirteen Original Colonies (1949) ........... 20

Francis Grose, A Classical Dictionary of the Vul-

gar Tongue (1786) .............--0------sceceseereresneenenses 16

Jacques Guillemeau, The Nursing of Children

IID ccectieciecncocssccesovecsrsncensnsesssonsnsecsonevescssosncessensenee 19

Sir Matthew Hale, History of the Pleas of the

Crew CITB) «......00<00ccccceccovessecseccesecssescessesevesseces 11, 12,13

Sir Matthew Hale, Pleas of the Crown (1678)........ 13

William Hawkins, Treatise on the Pleas of the

Crow (1716) .........00.--c-cccecceecceecse-scenceenscessessseoseoes 13

R.H. Helmholz, Infanticide in the Province of

Canterbury in the Fifteenth Century, 2 Hist.

Childhood Q. 379 (1975) ...........--..--<-ss-esseeeeeeeenees 11, 18

Norman Himes, Medical History of Contraception

CIID ces ececceccrennvecssctnsersorsesseusnacemnssonsnsestsenesovecsocoscoess 16, 17

A History of Science (René Taton ed. 1965) ......... 28

Peter Hoffer & N.E.H. Hull, Murdering Mothers:

Infanticide in England and New England 1558-

1BOB (IDBL) ...-cccccceceeccrecessncceecesceseccsscesecssonseocescossecs 18, 20

W.S. Holdsworth, A History of English Law

WI oa scacsitosinesnssntenseneccanenntnrmeconscssecovecssseossonenseees 9,11, 24

Oliver Wendall Holmes, Jr., The Path of the Law,

10 Harv. L. Rev. 457 (1897) .............------2----c0-ee000 2

Ralph Houlbrooke, Church Courts and the People

during the English Reformation 1520-1570 78

RII <:inescxnionosisetsncemnidnntinanntsenenceeanescsansocecsqaneenencesnases 11

Paul Kahn, Community in Contemporary Constitu-

tional Theory, 99 Yale L.J. 1 (1989)..................... 2

Alfred Kelley, Clio and the Court: An Illicit Love

Affair, 1965 Sup. Ct. Rev. 119 ....................... saat 5

xvi

TABLE OF AUTHORITIES—Continued

Page

Mary Kenny, Abortion: the Whole Story (1986).. 18

John Keown, Abortion, Doctors and the Law

) SENN Se passim

Lyle Koehler, A Search for Power: The “Weaker

Sex” in Seventeenth-Century New England

(BED <cccesecescssenseusniiilasaiiandiondaaenamenias anne 20

William Lambard, Of the Office of the Justice of

the Peace (lat ed. 1681 ) .........00<-ccoccccccecsceccssccseeesse 10, 18

Jane Larson & Clyde Spillenger, “That’s Not His-

tory”: The Boundaries of Advocacy and Schol-

arship, 12 The Pub. Historian 83 (1990) ............ 6

Peter Laslett, The World We Have Lost (1966)... 15

Sylvia Law, Conversations Between Historians

and the Constitution, 12 The Pub. Historian 11

(| EN 5

Sylvia Law, Jane Larson, & Clyde Spillenger,

“Historians’ Brief” filed in Webster v. Repro-

ductive Health Services, Inc, (1989)...................... passim

Sylvia Law, Jane Larson, & Clyde Spillenger,

“Historians’ Brief” filed in Planned Parenthood

of Southeastern Pennsylvania v. Casey (1992). passim

George Edward Male, An Epitome of Judicial or

Forensic Medicine (1816) o.........cccccccceccceeeeeecesee 24

Claudia Pap Mangel, Legal Abortion: The Im-

pending Obsolescence of the Trimester Frame-

work, 14 Am. J. L. & Med. 69 (1988) 30

Samuel Evans Massengill, A Sketch of Medicine

and Pharmacy (2d ed. 1942)... 20

Angus McLaren, Reproductive Rituals (1984) ..... 14, 15,

17, 18

Cyril Means, Jr. The Law of New York Concern-

ing Abortion and the Status of the Foetus, 1664-

1968: A Case of Cessation of Constitutionality,

14 N.Y.L.F. 411 (1968) (cited as Means I)... 4,21

Cyril Means, Jr., The Phoenix of Abortional

Freedom: Is a Penumbral or Ninth-Amendment

Right about to Arise from the Nineteenth-

Century Legislative Ashes of a Fourteenth-

Century Common-Law Liberty?, 17 N.Y. L.F.

835 (1971) (cited as Means IT)... 4,14, 21

ee 8 ee

xvii

TABLE OF AUTHORITIES—Continued ‘

age

C.A.F. Meekings, Studies in 18th Century Justice

and Administration (1981) ................-...-..-.<<--.-- ~

Arthur Meyer, The Rise of Embryology (1939) .. .. 28

Mirror of Justices (Selden Soc’y 1895) ................... 18

James Mohr, Abortion in America (1978) ............. passim

James Mohr, Historically Based Legai Briefs:

Observations of a Participant in the Webster

Process, 12 The Pub. Historian 19 (1990) .......... 5

Dr. Bernard Nathanson, The Abortion Papers

ee a 29

Dr. Bernard Nathanson, Aborting America

a 29

Joseph Needham, A History of Embryology

I 28

John Noonan, Contraception (1965) ....................... 16,17

Marvin Olasky, The Press and Abortion, 1838-

ce 25, 26

John Parker, Conductor Generalis: Or, the Office,

Duty, and Authority of Justices of the Peace

EE 20

John Pechey, Compleat Herbal of Physical Plants ‘a

ocand Petchesky, Abortion and Wc men’s Choice

a aiaeeeeeeteereenensneteepenereanaacnenes 15, 26

Frederick Pollock ‘ Frederick Maitland, The His-

tory of English Law before the Time of Edward

er 9,11, 18

Thomas Pygot, Reading (Grays Inn, 1510)............. 9

R. Quaife, Wanton Wenches and Wayward

ae 15

Eugene Quay, Justifiable Abortion—Medical and

Legal Foundations (Pt. II), 49 Geo. L.J. 395

EE 21

Rhazes, Liber ad Almansorem (1497) .. a 17

C. H. Rolph, A Backward Glance at the Age of

‘Obscenity’, 32 Encounter 23 (June 1969) ........... 18

Sir William Russell, A Treatise on Crimes and

Miodemeanore (1819) .....................200:ccccceeceececeeeeeee 18

xviii

TABLE OF AUTHORITIES—Continued

Page

-— Sanger, Motherhood in Bondage

Seen a ee ae ee eR SEN aidisieees 26

Jane Sharp, The Midwives Book (1671)... 19

Catherine Scholten, Childbearing in American

Society 1650-1850 (1985) 000000 20

Edward Shorter, A History of Women’s Bodies

EARLE SES ES eR A A 15, 16, 17, 22

— — Letter to Philip Rafferty (Nov. 23,

Sansome ee 28

Elizabeth Cady Stanton, Child Murder, 1 The

Revolution 146 (March 12, 1868)... 26

William Staunford, Pleas of the Crown (1557) ..... 10,18

Dr. Alice Bunker Stockham, Tokology (1887)... 26

Dr. Frederick Taussig, Abortion Spontaneous and

ee hos eee 14, 16, 18

Dr. Alfred Taylor, Manual of Medical Jurispru-

EEE ee en ee LOS 24

Laurence Tribe & Michael Dorf, On Reading the

I 2

Stephen Veltri, Book Rev., 18 Oh. N.U.L. Rev. 257

CR. ee ES ahs OE) 29

Jeffrey Weeks, Sex, Politics and Society (1981). 16

Francis Wharton, The Criminal Law of the United

States (5th rev. ed. 1861)... 24

John Winthrop, History of New England 1630-

1649 (James Kendall Hosmer ed. 1908) _. 20

James Witherspoon, Reeramining Roe: Ninteenth-

Century Abortion Statutes and the Fourteenth

Amendment, 17 St. Mary’s L.J. 29 (1985) 21

SUMMARY OF ARGUMENT

In order to determine the proper standard of review

with which to judge the Pennsylvania statutes in issue in

this case, the Court must reconsider the continuing valid-

ity of Roe v. Wade, 410 U.S. 113 (1973), as the source

of the standard. The majority in Roe, following estab-

lished traditions of constitutional interpretation, analyzed

the case through extended discussion of the history of

abortion laws. Influenced by deliberately distorted presen-

tations of that history, the Court erroneously concluded

that abortion was not a common law crime. The Court’s

historical errors caused it to break sharply with the tra-

ditional values of the common law and our Constitution.

The historical record shows that abortion and other

killings of unwanted children were condemned by all re-

spected legal authorities in England from the start of the

common law, and those laws were applied with full rigor

in the United States during the colonial era. Early on,

infanticide was frequently punished; when, with new

medical technologies, abortion became more common than

infanticide, legal institutions turned their attention from

infanticide to abortion.

The common law has always socially controlled abortion

in the interest of mother and child, interests that changed

as medical technologies developed. Changing abortion

technologies affected the desire of some mothers for the

procedure while developing medical knowledge reinforced

a growing certainty that a conceptus is a person from

early stages of gestation, leading to a widely shared con-

sensus in the nineteenth century on the moral worth of

the unborn child. The consensus was then shared by even

the most militant feminists and opposed only by profes-

sional abortionists.

Legislatures are better at assembling the information

necessary to assess the import of the changing technologies

and at balancing the interests created or reinforced by

those technologies. Courts are ill-suited to be boards of

review for the implications of changing medical] technolo-

gies. In the present flux, recourse to states as labora-

tories for social policies is particularly appropriate. The

Court should uphold all provisions of the Pennsylvania

statute and should overrule Roe v. Wade.

ARGUMENT

I. THE CONSTITUTIONAL STATUS OF ABORTION

MUST BE DETERMINED BY EXAMINING THE

DEEPLY-ROOTED TRADITIONS OF ANGLO-

AMERICAN SOCIETY AS EMBODIED IN THE

COMMON LAW AND THE CONSTITUTION

The rule of law requires judicial decisions to have a

basis other than the judge’s personal predilections. We

find that basis in historical traditions regarding the rele-

vant behavior. Harmelin v. Michigan, 111 8S. Ct. 2680

(1991); Burnham v. Superior Court, 110 S. Ct. 2105

(1990) ; Michael H. v. Gerald D., 491 U.S. 110 (1989) ;

Bowers v. Hardwick, 478 U.S. 186 (1986); McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 400-05 (1819). Even

those who reject the original intent as controlling consti-

tutional interpretation have sought to anchor constitu-

tional decisions in evolving national traditions. Only

by denying the relevance of anything other than one’s

own personal vision of a better society can one deny the

relevance of historical traditions to constitutional inter-

pretation.

The historical record on abortion is sparse, but the rec-

ord is clear that abortion and other killings of unwanted

* See, e.g., Coker v. Georgia, 433 U.S. 584, 592, 595-97 (1977) :

A. Bickel, The Least Dangerous Branch 109-10 (2d ed. 1986); L.

Tribe & M. Dorf, On Reading the Constitution 13-19, 33, 52-53,

59-60, 70-71, 97-99 (1991). Appeal to an aspirational tradition is at

least implicit in appeals to community for social and legal norms

if the “community” appealed is to refer to any actual community,

as opposed to an “ideal community” wholly a product of one’s own

imagination. See, e.g., R. Dworkin, Law’s Empire (1986); Acker-

man, The Storrs Lecture: Discovering the Constitution, 93 Yale

L.J. 1013 (1984); R. Cover, Violence and the Word, 95 Yale LJ.

1601 (1986) ; P. Kahn, Community in Contemporary Constitutional

Theory, 99 Yale L.J. 1 (1989). See also O. W. Holmes, The Path

of the Law, 10 Harv. L. Rev. 457, 459 (1897): “Law is the wit-

ness and externa! deposit of our moral life.”

Se OF

)

children were always prohibited in the common law tradi-

tion, and, as this Court itself recognized in Roe v. Wade,

410 at 159, abortion has always been and now is treated

differently from other issues of reproductive privacy. Be-

cause of this difference, the precise historical tradition

toward abortion alone is relevant to the constitutional

power of states to regulate or prohibit abortion.

II. ROE v. WADE, THROUGH ERRONEOUS READING

OF THE HISTORICAL STATUS OF ABORTION

UNDER THE COMMON LAW, BROKE SHARPLY

WITH THE TRADITIONAL VALUES OF THE COM-

MON LAW AND OUR CONSTITUTION

More than half of the majority opinion in Roe, 410 at

129-152, 156-162, was given to a history of abortion, used

to inform the values at stake in the controversy. The

majority concluded that “it now appear[s] doubtful that

abortion was ever . . . a common law crime”, 410 U.S. at

136, and that American abortion statutes were not gen-

erally adopted until after the Fourteenth Amendment

was adopted, id. at 139. Both conclusions are wrong.

Extensive research since Roe has found indictments or

appeals of felony for abortions dating back eight cen-

turies.2 This evidence indicates that abortion, even be-

fore quickening, was a crime at common law, a conclusion

that was unquestioned (at least for abortions after

quickening) until abortion activists adopted a deliberate

strategy of challenging it. The nineteenth-century abor-

2 Many of the indictments and appeals cited in this brief have

not been published except as appendixes to briefs similar to this.

In addition to my research, Mr. Philip Rafferty of the Los Angeles

bar made his extensive research available, as have Dr. J.H. Baker

of Cambridge University and Dr. John Keown of the University of

Leicester. See generally J. Keown, Abortion, Doctors and the Law

(1988). Dr. Baker’s text, An Jntroduction to English Legal History

(3d ed. 1990), is a leading text on the topic.

tion statutes served to affirm social licy in th

technologically-based social change. 7g ee rg

A. Courts, from Roe v. Wade on, Ha

Deliberately Distorted History of a oss

The majority in Roe relied uncritically on the w

Cyril Means, Jr., who was then at counsel voted

National Association for the Repeal of Abortion Laws

(NARAL, now the National Abortion Rights action

League).* Means’ distorted doctrinal history of abortion

precedents and statutes ignored the larger social and tech-

nological context in which those decisions were grounded.‘

Abortion advocates now usually rely on the work of his-

torian James Mohr, as expressed in the “Historians’

Briefs” in Web t } }

e- lleod ebster v. Reproductive Health Services and

These histories of abortion are advocacy pi i

( ieces

highly selective examination of the adden to Fhe :

partisan and distorted history of abortion. Mohr and the

authors of the “Historians’ Briefs” view the law of abor-

*C. Means, The Phoenix of Abortional Freedom: Is a P

. . - os

rd Ninth-Amendment Right About to Arise from the * ae aang

saoee ie. a of a Fourteenth-Century Common-Law

, -Y.L.F. 335 (1971) (“Means II”); C.

_ of New York Concerning Abortion and the ine oS ~

at 1664-1968: A Case of Cessation of Constitutionality, 14

v. -L.F. 411 (1968) (“Means I”). The majority cited Means

times for the history of abortion—without noting that he seen the

NARAL/’s general counsel. On Mean’s relation to abortion # ane

groups, see M. Faux, Roe v. Wade: The Untold Story of the Land-

mark Supreme Court isi ]

mm hy mg ourt Decision that Made Abortion Legal 289-92,

* See generally J Dellapenna, The Hi

' ‘ . istory of Abortion: -

nology, Morality, and Law, 40 U. Pitt. L. Rev. 359 ( ey : _

®J. Mohr, Abortion in America (1978 ]

, ); Amicus Bri

a Historians, filed in Webster v. Reproductive why Sen

ces, 492 U.S. 490 (1989) [“Webster Brief”); Amicus Brief of

250 Historians, filed in Planned

aun ee Parenthood of S.E. Pa. vy. Casey

te Ce Mite ies eee —

tion as a story of oppressors and oppressed, shifting their

focus from the increasingly clear history of the law of

abortion to less determinate questions of the “true” social

attitudes toward abortion in our history. Their project

of recovering “lost voices” ® enables them to discount

attitudes with which they disagree as aberrations, not

truly representative statements, either in favor of simi-

lar records of more agreeable attitudes or in favor of

presumed but unrecorded opinions of historically mute

classes. Their story of oppression is far from a complete

history.

Recovering “lost voices” permits one to infer, at will,

what the “true” attitudes were. Yet, if the public atti-

tudes of formal, legal institutions did not represent the

true values of our society, why did those institutions ex-

press themselves in such terms, and why did those unrep-

resentative terms continue through major changes in

social and political structures spanning more than seven

centuries? Nor does the “lost voices” project recognize

that the Constitution is a legal document. Ultimately,

legal traditions must inform the Constitution: Social,

medical, and moral contexts usefully illuminate legal

traditions, but they are not an independent source of

right. Finally, troubling public admissions by the au-

thors of the Webster Brief of deliberate distortions of the

historical record to achieve more effective advocacy em-

phasizes the shallowness of their arguments.’

Sylvia Law, Counsel of Record on the Webster Brief,

candidly lamented the authors’ “serious deficiencies as

truth-tellers.”* James Mohr does not “consider the

brief to be history, as I understand the craft.”* His-

* See Casey Brief, supra note 5, at 4. See also Law, Conversations

Between Historians and the Constitution, 12 The Pub. Historian 11,

14 (1990).

7Cf. A. Kelly, Clio and the Court: An Illicit Love Affair, 1965

Sup. Ct. Rev. 119, 122 n.18, 144 (decrying “law office history”).

8 Law, supra note 6, at 14-16.

J, Mohr, Historically Based Legal Briefs: Observations of a

Participant in the Webster Process, 12 The Pub. Historian 19, 25

(1990).

torian Estelle Freedman, who also worked on the brief,

signed the brief despite knowing that her own research

demonstrated a very different story, explaining her

decision in a passage of remarkable frankness:

As an historian, my primary difficulty with the

earlier versions of the brief had to do with the selec-

tive view of evidence, or lack of evidence, to show

continuity rather than change, in order to support a

particular legal argument about original intent... .

Yet I realize that for the practical purposes of writ-

ing this brief, it was necessary to suspend certain

critiques to make common cause and to use the legal

and political grounds that are available to us... ."°

The difficulties these admissions present are not re-

solved simply by asserting, as do the other two lawyers

on the Webster Brief, that all discourse is necessarily

political and that any distinction between scholarship

and distortion is illusory. The “Historians’ Brief”

filed in this case (the “Casey Brief’) was written by

the same attorneys relying on the same historians with

only small changes of emphasis. The Historians’ Briefs

hinge on the twin claims that abortion has always been

a common social practice and was a “common law lib-

erty” prior to the Civil War—both of which are demon-

strably false.

RB. In England, from the Beginning of the Common

Law, Courts and Other Respected Authorities Con-

sistently Condemned Abortion

Common law indictments and appeals of felony for

abortion are recorded as early as 1200. While the terse

records often do not indicate the outcome of the pro-

1 FE. Freedman, Historical Interpretation and Legal Advocacy:

Rethinking the Webster Amicus Brief, 12 The Pub. Historian 27,

$2 (1990). Her entire talk makes clear that the problems she ad-

dressed were not resolved in the version filed with the Court.

11 Larson & Spillenger, “That's Not History”: The Boundaries

of Advocacy and Scholarship, 12 The Pub. Historian 33 (1990).

ceedings,"* the many clear records of punishment ™ and

judgments of “not guilty” (rather than dismissal) prove

that the indictments and appeals were valid under the

common law. Means was simply wrong to assert that

2 R. v. Cokkes (1415), 7 Calendar of Inquisitions Misc. (Ch.)

Pres'’d in the Pub. Rec. Off. 1399-1422, at 296 (no. 523) (1968);

R. v. Portere (K.B. 1400), The Shropshire Peace Role 1400-1414,

at 57-58 (no. 24) (1959); R. v. Houdydoudy (Coroner’s Inquest

1326), Calendar of Coroner’s Rolls of the City of London A.D.

1300-1378, at 166 (1913); R. v. Botevylayn (K.B. 1305), Wiltshire

Gaol Delivery & Trailbaston Trials 1275-1306, at 105, 126, 131

(nos. 576, 800, 854) (1978); Boleheved’s Appeal, JUST 1/112,

m.9d (Cornwall Eyre 1284); R. v. le Petiprestre, The London

Eyre of 1244, at 48 (no. 116) (London Rec. Soc’y 1970) ; Sauter’s

Appeal, Pleas of the Crown for Gloucester Cnty. 1221, at 16 (no.

69) (1884); Sibil’s Appeal (1203), 1 Selden Soc’y 32 (no. 73)

(1887) ; Agnes’s Appeal (1200), 1 Selden Soc’y, supra at 39 (no.

82) [see App. C, at 12a].

18 HANGING: R. v. Haule, JUST 1/547A, m.20d (London Eyre

1321) [see App. C, at 15a}; R. v. Kyltavenan (Cork, Ireland

1311), Calendar of Justiciary Roles or Proc. in the Ct. of the

Justiciar of Ireland I to VII Years of Edward II, at 193 (Dublin

Stationary Off., n.d.). IMPRISONMENT: R. v. Code, JUST 1/789,

m.1 (Hampshire Eyre 1281) [see App. C, 14a]. OuTLAWRY: R. v.

Ragoun, JUST 1/547A, m.55d (London Eyre 1310); R. v. Eppinge,

JUST 1/547A, m.46 (ms. dated 1321) (London Eyre 1304); R. v.

Hervy, JUST 1/547A, m.40d (1300, ms. dated 1321); R. v. Hok-

kestere, JUST 1/547A, m.3 (London Eyre 1298, ms. date 1321);

R. v. Scot, JUST 1/547A, m.22 (1291, ms. dated 1321); R. v.

Dada, JUST 1/547A, m.19d (1290, ms. dated 1321); R. v. Clis-

ton, JUST 1/1011, m.62 (Wiltshire Eyre 1288); R. v. Mercer,

JUST 1/710, m.45 (Oxford Eyre 1285) [see App. C, at 14a];

R. v. Brente, JUST 1/186, m.30 (Devon Eyre 1281); R. v. Code,

JUST 1/789, m.1 Hampshire Eyre 1281) [see App. C, at 14a];

R. v. Scharp, The London Eyre of 1276, at 23 (no. 76) (London Rec.

Soc’y 1976); Juliana’s Appeal (12567), Somerset Pleas (Civ. &

Crim.) from the Rolls of the Itinerant Justices 321 (no. 1243)

(1897) [see App. C, at 13a]; Erneburga’s Appeal, JUST 1/175,

m.38 (1249). See also Leges Henri Primi ch. LXX.14 (LJ. Downer

ed. 1972) (a 12th-century compilation of Anglo-Saxon law as modi-

fied by the early Norman kings). ;

4 R. v. Mondson, JUST 1/527, m.11d (Lincolnshire Gaol Delivery

1361-62) ; R. v. Skotard, JUST 1/169, m.25 (Derbyshire Eyre 1330) ;

R. v. Cobbeham, JUST 1/547, m.19d (London Eyre 1321); R. v.

only two cases dealt with abortion before 1600 and that

the courts in both cases doubted whether abortion was a

crime: R. v. de Bourton, Y.B. Mich. 1 Edw. 3, f. 23, pl.

28 (K.B. 1327); and R. v. Anonymous (K.B. 1348), Fitz-

herbert, Graunde Abridgement, tit. Corone, f. 268r, pl.

263 (1st ed. 1516) [see App. C, at 16a}.

Godesman, JUST 1/383, mm.18d, 96 (Kent Eyre 1313); R. v. le

Raggede (Dublin, Ireland 1311), Calendar of Justiciary Roles or

Proc. in the Ct. of the Justiciar of Ireland I to VII Years of Edward

II, at 216 (Dublin Stationary Off., n.d.); Rokaf’s Appeal, JUST

1/544, m.55d (Middlesex Eyre 1294); R. v. Skel, JUST 1/1098, pt.2,

m.79 (Yorkshire Eyre 1293); R. v. Wyntercote, JUST 1/303, m.69d

(Hereford Eyre 1292); R. v. Boleye, JUST 1/308, m.69d (Shrop-

shire Eyre 1292); R. v. Hore, JUST 1/1011, m.56 (Wiltshire Eyre

1289); Agnes’s Appeal, JUST 1/1011, m.59d (Wiltshire Eyre

1289); R. v. Reeve, JUST 1/924, m.60 (Sussex Eyre 1288); R. v.

Neubyr’ JUST 1/924, m.73 (Sussex Eyre 1288); Beatriz’s Appeal,

JUST 1/579, m.10d (Norfolk Eyre 1286); Mill’s Appeal, JUST

1/579, m.72 (Norfolk Eyre 1286); la Neweman’s Appeal, JUST

1/833, m.7 (Suffolk Eyre 1286); Alexandra’s Appeal, JUST 1/833,

m.23d (Suffolk Eyre 1286); Hervest’s Appeal, JUST 1/789, m.26d

(Hampshire Eyre 1281); R. v. Benetley, JUST 1/789, m.3 (Hamp-

shire Eyre 1281); de Pekering’s Appeal, JUST 1/369, m.36 (Kent

Eyre 1279); R. v. le Gaoeler, JUST 1/369, m37d (Kent Eyre

1279); R. v. Surgeon, JUST 1/369, m.37d (Kent Eyre 1279);

Joan's Appeal, JUST 1/921, m.23 (Sussex Eyre 1279) ; Gras’s Ap-

peal, The London Eyre of 1276, at 73-74 (no. 261) (London Rec.

Soc’y 1976); Sorel’s Appeal, The London Eyre of 1276, at 61 (no.

222); Isabel’s Appeal, The London Eyre of 1276, at 62-64 (nos.

157, 158); Cecily’s Appeal (1249), C. Meekings, Studies in 13th

Century Justice and Administration 257 (no. 562) (1981);

Swayn’s Appeal, JUST 1/359, m.36 (1249); Margaret’s Appeal,

JUST 1/174, m40d (12497); Orscherd’s Appeal, JUST 1/174,

m.40d (12497); Alice’s Appeal, JUST 1/176, m.27d (1249);

Amice’s Appeal, JUST 1/274, m.14d (1247) [see App. C, at C—];

Phina’s Appeal, JUST 1/778, m.57 (1246), summarized in Meek-

ings supra at 267; Sarah's Appeal, The London Eyre of 1244, at

50-51 (mo. 124) (London Rec. Soc’y 1970); St. Alban’s Appeal

(1244), The London Eyre of 1244, at 36 (no. 84); Modi’s Appeal

(1221), 59 Selden Soc’y 560-61 (no. 1336) ( (1940); Burel’s Appeal

(1202), 1 Selden Soc’y 11 (no. 26) (1887). BENEFIT oF CLERGY PRE-

CLUDED TRIAL: Mabel’s Appeal, JUST 1/741, m.33 (Shropshire Eyre

1292) (damaged roll); Philippa’s Appeal (12767), The London

Eyre of 1276, at 51 (no. 187).

Means (and the Roe majority) relied on a faulty text

of R. v. de Bourton {see App. B, at 2a). Even their

faulty text did not support Means’ highly partisan analy-

sis of the case. The faulty text of R. v. de Bourton at

most demonstrates that courts declined abortion prosecu-

tions if uncertain whether the case was properly before

the court for reasons other than the criminality of abor-

tion. The defendant was charged with beating a woman,

causing one twin to be born dead and the other to die

shortly after birth; the defendant apparently was re-

leased on bail to answer for an unspecified different

charge. The full record reveals the case actually to have

been a dispute over whether the offense was bailable,

and not over its criminality. In the end, de Bourton was

pardoned; the charges were not dismissed.

In R. v. Anonymous, the defendant escaped conviction

for killing a child in the mother’s womb for the dubious

reason that the indictment failed to state a baptismal

name for the victim,'* and because it was impossible to

know if the defendant had killed the child. In both de

Bourton and Anonymous, the issues were procedural and

evidentiary, not substantive. Early commentators on the

common law also declared abortion after quickening to

be criminal homicide. 2 H. de Bracton, On the Laws

and Customs of England 341 (S. Thorne ed. 1968); 1

Fleta 60-61 (Selden Soc’y ed. 1955) ."

18 Keown, supra note 2, at 4; S. Gavigan, The Criminal Sanction

as It Relates to Human Reproduction: The Genesis of the Statu-

tory Prohibition of Abortion, 5 J. Leg. Hist. 20, 22-29 (1984).

Dellapenna, supra note 4, at 368-70.

“Murder”, at least until 1340, meant a fine imposed on a

district when no one could prove a deceased’s identity as an

Englishman. 1 W. Holdsworth, A History of English Law ( 1938),

at 65-77, 580-632; 1 F. Pollock & F. Maitland, The History of

English Law Before the Time of Edward I 67-68, 545 (2d ed.

1898) ; 2 Pollock & Maitland at 480-86. This usage was still com-

mon in the Inns of Courts nearly two centuries later. See Selected

Readings on the Law of Murder, in App. C, at 16a.

Britton disagreed because of the lack of a baptismal name for

the victim. 1 Britton 114 (F.M. Nichols ed. 1865).

The sixteenth-century cases clearly held voluntary

abortions to be crimes. A coroner’s inquest held death by

abortion to be “felonious suicide”; the man involved was

released as an accessory then could not be tried without

the principal. R. v. Lichefeld, K.B. 27/974, Rex m.4

(1505) [see App. C, at 18a]."* A man died before trial

for providing a potion to induce an abortion. R. v. Wod-

lake, K.B. 9/513/m.28 (1580), K.B. 29/162/m.11d (1581)

[see App. C, at 19a]. Accusing a woman of offering

abortifacients to another supported an action for slander

as such words were sufficient grounds to require a judicial

bond for good behavior. Cockaine v. Witnam (1577),

Cro. Eliz. 49 (1586) [see App. C, at 21a]. A woman

was executed for abortion by witchcraft. R. v. Turnour

Assize 35/23/29 (Essex 1581) [see App. C, at 22a].”

A woman was “presented” by a coroner’s jury for pro-

curing her own abortion. R. v. Robynson, Q/SR 110

(Coroner’s Inquest 1589). af -

Two sixteenth-century writers on criminal pleadings

denied, however, that abortion was a felony. 1 W. Staun-

ford, Pleas of the Crown ch. 13 (1557 ); W. Lambard,

Of the Office of the Justice of the Peace 217-218 (1st

ed. 1581). Yet a formbook, with four editions from

1506 and 1544, included a form indictment for abortion by

physica] assault on the mother. Boke of the Justyces of

the Peas ch. vi, fol. iii (1515). Perhaps Staunford and

Lambard reflected the inconclusiveness of the more widely

albeit faultily, reported decisions; or perhaps they meant

that abortion was a crime less than a felony or that abor-

tion properly belonged before a court other than the

Queen’s Bench. They clearly were wrong.

18 See also R. v. Wynspere, (Coroner’s In

' , quest 1503), Pub. t

Off., ref: Ancient Indictments 434, 12; Keown, supra be 2 oe

” The record is not entirely clear as to why she was executed:

Turnour was convicted of several acts of witchchaft only one of

which involved abortion, but the abortion was the only witchcraft

which would have been a capitol offense. See Calendar of Assize

Rec., Essex Indictments, Eliz. I. at 21

om. ,a 2 (no. 1225) (J. Cockburn ed.

;

Sixteenth-century legal activity directed at abortion

did involve the secularization of ecclesiastical jurisdic-

tion.” Ecclesiastical judicial activity directed at abor-

tion declined during the Reformation and common law

courts then took full responsibility for abortion.” In 1601,

two Justices of the Queen’s Bench held an abortion in

which a child dies after its live birth to be murder on

grounds that the birth and subsequent death of the child

permitted proof of the cause of death. R. v. Sims, 75

Eng. Rep. 1075 (Q.B. 1601) [see App. C, at 23a].” In

20 Before the Bawdy Court 81, 152, 172, 204, 238 (nos. 150, 369,

427, 531) (P. Hair ed. 1972) ; Keown, supra note 2, at 5; Helmholz,

Infanticide in the Province of Canterbury in the Fifteenth Century,

2 Hist. Childhood Q. 379, 380-81 (1975). Ecclesiastical and legal

jurisdiction often were concurrent. Keown, supra; Helmholz, supra

at 286. In English legal theory both temporal and ecclesiastical

courts derived their authority from the Crown, and thus both to-

gether represented the “law of England.” 1 M. Hale, History of

the Pleas of the Crown, preface (1736). Many modern bodies of

law that today are unquestionably secular originated in ecclesiastical

courts, including wills, slander, and simple contracts. 1 Holdsworth,

supra note 16, at 65-77, 455-57, 580-632 (1938); 3 Holdsworth at

408-28, 441-54, 534-26; 5 Holdsworth at 167-69, 197-218, 291-99;

8 Holdsworth at 301-07, 423-417; 15 Holdsworth at 198-208;

Dellapenna, supra note 4, at 382-87.

21 R. Houlbrooke, Church Courts and the People during the Eng-

lish Reformation 1520-1570 78 (1979). Witchcraft became an in-

dictable crime by the statute of 5 Eliz. I, ch. 15 (1573); within

eight years we find R. v. Turnour, supra.

22 Failure of proof was occasionally given as a reason for not

prosecuting earlier indictments. On the primitive state of forensic

medicine even three centuries later, see Forbes, Early Forensic

Medicine in England: the Angus Murder Trial, 36 J. Hist. Med.

296 (1981). R. v. Sims seems to have settled the matter: R. v.

Senior, 168 Eng. Rep. 1298 (K.B. 1832); R. v. Lewis, OB/SP/April

1786, nos. 67, 86 (K.B. 1786). Sims was an action in trespass,

which then was still a hybrid action combining criminal and civil

elements; for the evolution of medieval trespass into modern

crimes and torts, see 2 Holdsworth, supra note 16, at 364-65: 3

Holdsworth, at 317-18, 609-11; 4 Holdsworth at 512-15; 2 Pollock

& Maitland, supra note 16, at 510-24.

1602, in R. v. Webb, Calendar of Assize Rec., Surrey

Indictments, Eliz. I 512 (no, 3146) (J. Cockburn ed.

1980) [see App. C, at 24a], a woman apparently was

saved from punishment for self-abortion only by a gen-

eral pardon. The pardon covered entire classes of felony;

whether the pardon was before or after her conviction is

unclear. Finally, Sir Matthew Hale held that the death

of a mother from an abortion was a felony homicide.

R. v. Anonymous (Bury Assizes 1670), M. Hale, His-

— of Pleas of the Crown 429-30 (1786) [see App. C, at

a).

Sir Edward Coke had argued R. v. Sims as Attorney-

General and took the case up in his Third Institute 50-51

( 1644) [ see App. C, at 25a], generalizing from it a prin-

ciple that abortion after quickening was “a great mis-

** There were many other 17th-century cases.

CONVICTIONS: R. v. Hallibred, ERO (Chelmeford) oat a

(1622), 19B Calendar of Essex Cnty. Rec. 1611-1624, at 474 (no.

102); R. v. Berry, MJ/GSR/SF79 (1617), 4 (N.S.) Cnty. of Mid-

dlesex Calendar of the Sess. Rec. 1615-1616, at 292; R. v. Rastone

MJ/SR/552/185 MJ/SBP/1, f. 75 (Middlesex 1616), 3 (NS)

Cnty. of Middlesex Calendar, supra, at 277; R. »v. Whalley MJ/

SR/552/136 (1616), 3 (N.S.) Cnty. of Middlesex Calendar, supra

at 277; R. v. Robinson (Middlesex 1615), 3 (N.S.) Cnty of Mid-

dlesex Calendar, supra, at 175. ACQUITTALS: R. ». Squire Gaol

Del., ref: MJ/SR/1720 (1687) : Commonwealth v. Carter (1652)

Calendar of Assize Rec.: Kent Indictments, 1649-1659, at 96 (nos

534, 535) (1989). INDICTMENTS WITHOUT RECORD OF THE OUTCOME :

R. v. Willson, ERO (Chelmsford) QSR/459/1 (1688), 25 Calendar

of Essex Cnty. Quarter Sess. Rec. 30; R. »v. Rolfe, ERO (Chelms-

ford) QSR/405/64, 160, 184, QSR/406/43, 110, 112-18 (1665). 23

Calendar of Essex Cnty. QSR 65, 74, 76; Commonwealth v. Sim

son (1659), 6 N. Riding Q. Sess. Rec. 22 (1888) ; pneclienle 4

v. Forall (1651), 8 Warwick Cnty. Rec., Q. Sess. Order Book 50:

R. v. Lagott, SRO (Somerset) Q/S 62 (1629), 2 Quarter Sess Ree.

for the Cnty. of Somerset, Charles I, 1625-1689, at 228 (no. 16).

R. v. Fookes, ERO (Chelmsford), Q/8/R 222/73 (1618), 19 Calen.

dar of Essex Cnty. Rec., supra, at 328 (no. 73); R. v. Hodges

(1615), 2 Calendar of Middlesex Cnty. Sess. Rec. 1614-1615, at

845 (1986); R. v. Turner, MJ/SR/543/143 (f. MSR 111.51), MJ/

SR/544/44, MJ/SBR/2 (1615), 3 (N.S

on cee ; .) Cnty of Middlesex Calen-

prision [serious misdemeanor], and no murder” if the

child died in the womb, and murder if the child died

after its birth. Coke’s proposition was accepted virtually

without question.“ Neither Coke nor Hale cited the

precedents available for their conclusions.” Means dis-

% Coke, often called the “Father of the Common Law,” was

followed relative to abortion by: 1 W. Blackstone, Commentaries

129-80 (1765): 4 Blackstone 198 (1769); R. Burn, The Justice

of the Peace and the Parish Officer 380 (3d ed. 1756); 1 E. East,

A Treatise on the Pleas of the Crown, 227-30 (1803); M. Hale,

Pleas of the Crown 53 (1678); 1 W. Hawkins, Treatise on the

Pleas of the Crown 80 (1716); 1 W. Russell, A Treatise on Crimes

and Misdemeanors 617-18, 796 (1819). Two books are attributed

to Hale, one that echoed Coke’s views and a later book, Hale, supra

note 20, at 433 [see App. D, at 26a], that denied that an abortion-

induced death of a child born alive is murder. Which view truly

represents Hale’s opinion cannot now be established. On Coke’s

life and stature, see Baker, supra note 2, at 125-26, 164-69, 210, 217-

18.

25 PRECEDENTS FOR R. v. Sims: R. v. Cokkes (Somerset 1415)

(outcome unknown), 7 Calendar of Inquisitions Mise. (Ch.) Pres’d

in the Pub. Rec. Off. 1399-1422, at 296 (no. 523) (1968); R. v.

Portere (K.B. 1400) (convicted), The Shropshire Peace Role 1400-

1414, at 57-58 (no. 24) (1959); R. v. Eppinge, JUST 1/547A,

m.46 (London Eyre 1321) (convicted); R. v. Scot, JUST 1/5474,

m.22 (London Eyre 1321) (convicted); R. v. Haule, JUST 1/547A,

m.20d (London Eyre 1321) (convicted) [see App. C, at C—];

R. v. Dada, JUST 1/547A, m.19d (London Eyre 1321) (convicted) ;

R. v. Cobbeham, JUST 1/547A, m.19d (London Eyre 1321) (ac-

quitte?) R. v. Skel, JUST 1/1098, pt. 2, m.79 (Yorkshire Eyre

1293) (conviction); R. v. Boleye, JUST 1/303, m.69d (Shropshire

Eyre 1292) (acquitted); Agnes’s Appeal, JUST 1/1011, m.59d

(Wiltshire Eyre 1289) (appeal of felony not permitted if infant

born alive: R. v. Hore, JUST 1/1011, m.56 (Wiltshire Eyre 1289)

(acquitted) ; R. v. Cheney, JUST 1/323, m.47d (Hertfordshire Eyre

1278) (trespass for accidentally killing child in the womb; child

died after live birth). PRECEDENTS FoR Hale’s R v. Anonymous:

Commonwealth v. Carter (1652), Calendar of Assize Rec.: Kent

Indictments, 1649-1659, at 96 (nos. 534, 535) (1989) (acquitted) ;

R. v. Adkyns, ASS. 35/43/1, m.1 (1600) (convicted), reprinted

in Calendar of Assize Rec., Essex Indictments, Eliz. I, at 510 (no.

8054) (1975): R. v. Meddowe, Ass. 35/32, m.34 (1591) (con-

victed), Calendar of Assize Rec., Sussex Indictments, Eliz. I, at

233 (no. 1212) (1975); R. v. Poope (1589) (convicted), Calendar

missed Coke’s statement on abortion as a “masterpiece

of perversion,” he found Hale’s decision to be “an act of

Restoration gallantry.” ** Means did not explain how to

recognize the difference.

C. English Law Always Prohibited Parents from Kill-

ing Unwanted Children, and Parliament and the

Courts Took Strong Steps, Gradually Strengthened

over Centuries, to Punish Such Acts

Most cases before 1700 involved crude physical batter-

ings of the mother—often to her serious injury or death

(injury techniques).*’ The remaining abortions were in-

duced by “noxious potions” that were nearly as deadly

as the batterings (ingestion techniques). One might

of Assize Rec., Kent Indictments, Eliz. I, at 289 (mo. 1751) (1975) :

R. v. Skotard, JUST 1/169, m.25 (Derbyshire Eyre 1330) (ac-

quitted); R. v. Houdydoudy (Coroner’s Inquest 1326) (outcome

unknown), Calendar of Coroner’s Rolls of the City of London,

A.D. 1300-1378, at 166 (1913); R. v. Godesman, JUST 1/383,

mm.18, 96 (Kent Eyre 1313) (acquitted); R. v. Boleye, JUST

1/303, m.69d (Shropshire Eyre 1292) (acquitted): R. v. Cliston,

JUST 1/1011, m.62 (Wiltshire Eyre 1288) (convicted); R. v.

Reeve, JUST 1/924, m.60 (Sussex Eyre 1288) (convicted): R. v.

Brente, JUST 1/186, m30 (Devon Eyre 1281) (convicted) ;

Philippa’s Appeal, London Eyre of 1276, at 51 (no. 187) (London

Rec. Soc’y 1976) (benefit of clergy; defendant not tried) :

Orscherd’s Appeal, JUST 1/174, m.40d (12497) (acquitted).

26 Means II, supra note 3, at 359, 363.

* Injury techniques ranged from ineffective simple bodily ma-

neuvers to savage assaults, such as cutting the mother and remov-

ing the infant.

78 Appeals or indictments for abortion by potion might have

been rarer than for abortion by assault because a potion was part

of a magic ritual punishable as witchcraft even if ineffective, but

only by an ecclesiastical court before Elizabeth I. Among tradi-

tional cultures, anthropologists have found injury techniques to

be most common—because of the likelihood of success, G. Devereux,

A Study of Abortion in Primitive Societies 30-85, 171-858 (1955).

See also J. Bates & E. Zawadski, Criminal Abortion 87-88 (1964) :

A. McLaren, Reproductive Rituals 100-08 (1984); F. Taussig,

Abortion Spontaneous and Induced 41-45 (1936).

therefore infer that the law was protecting maternal

life or health—if one assumes that abortion was al-

ways available through relatively safe means.” Inges-

tion and injury techniques then used could be effective

only with intense pain and at the risk of death or per-

manent injury; undergoing either cannot have been pop-

ular.” Voluntary abortions, abortions that were not

crimes against the mother, were rare when the tech-

niques available were tantamount to suicide.”

2 Mohr, supra note 9, at 6-19, lists various methods that he

assumed were safe and effective, yet research shows that his as-

sumption was unfounded; even he acknowledged the poisonous na-

ture of at least some of the his “abortifacients”, id. at 9, 21-22,

55-58, 71-73. For another historian who also assumed that work-

able techniques existed while recognizing that his own catalogue

included only the useless or the fatal, see E. Shorter, A History of

Women’s Bodies 177-191 (1982). Other historians have made the

same assumption on even less evidence. A. Eccles, Obstetrics and

Gynaecology in Tudor and Stuart England 67 (1982); L. Gordon,

Women’s Body, Women’s Right: A Social History of Birth Con-

trol in America 35-39 (1976); McLaren, supra note 28, at 5-7,

107, 111-112; R. Petchesky, Abortion and Women’s Choice 27-34

(1984): G. Quaife, Wanton Wenches and Wayward Wives 118-120

(1979). See also infra note 30.

*° Shorter, supra note 29, at 177, concluded that before 1880 only

the truly desperate would risk abortion. Quaife describes injury

techniques with his analysis of violence, and not with abortion,

while conceding that girls were rarely anxious to use ingestion

techniques. Quaife, supra note 29, at 26, 118. See also Gordon,

supra note 29, at 39; Petchesky, supra note 29, at 30, 49-55.

31 Devereux, supra note 28, at 149-150. See generally Della-

penna, supra note 4, at 372-76, 393-95. One study of the incidence

of abortion in the earlier times, based on church records which do

not distinguish between spontaneous and induced abortions, P.

Laslett, The World We Have Lost 123 (1966), found that abor-

tions in 17th century England amounted to 6-7% of total births;

as spontaneous abortions in the 20th century range from 7.5-11%

with our more advanced medical technology, id. at 266, 17th cen-

tury figures reveal few, if any, induced abortions. Some assertions

in legal proceedings that a potion was given by trick, etc., might

have been dissimulation by the mother; this seems unlikely for

abortion by savage physical attack.

The unpopularity of injury techniques with women

hardly needs demonstration. And, while we cannot know

all potions available in medieval England, surveys of the

medica] literature there and in medically similar societies

show that the potions ingested for an abortion were

either ineffective (except for possible placebo effects) or

highly dangerous.” Savin was the “abortifacient” most

widely reported in medieval English sources; modern

tests have shown that it works by undermining the

woman’s health generally so she cannot sustain the preg-

nancy, all too often enfeebling her to the point of death.”

Perhaps this is why in early English slang “poisoned”

meant pregnant! *

Possibly a safe and effective drug escaped all notice in

the legal, medical, and popular literature of the day. Yet

* Bates & Zawadski, supra note 28, at 14-23, 85-91; Devereux,

supra note 28, at 36-43, 249, 279; N. Himes, Medical History of

Contraception 139-151 (1936); J. Noonan, Contraception 222-230

(1965) ; Shorter, supra note 29, at 179-188; Taussig, supra note

28, at 31-45, 352-357; Dellapenna, supra note 4, at 373-376. In-

effective “abortifacients” included goat dung, raw eggs, hops, “un-

grateful strong smells”, and wine. Drugs, the ingestion of which in

dangerous quantities could bring on an abortion, included caster

oil, ergot of rye, hellebore, pennyroyal, rue, savin (juniper), tansy

tea, thyme, and yarrow. A sufficiently desperate woman could in-

gest (or be made to ingest) a substance iethal even in smal! quan-

tities, such as aloes, arsenic, ratsbane (rat poison), snake venom,

and various metallic salts. Nineteenth-century courts were well

aware of the dangers these potions still posed. See, e.g., Common-

wealth v. W.M.W., 3 Pitt. Rep. 462 (1871); Moore v. State, 49

S.W. 287 (Tex. Crim. 1897).

53 One modern study found that savin induced an abortion in 10

of 21 women who consumed it: 9 of the 10 “successful” one died,

as did 4 of the “unsuccessful” ones. Taussig, supra note 28, at

353. In fact, most modern poisons were discovered in a vain

search for safe dosages of “abortifacients.” Bates & Zawadski,

supra note 28, at 88. For a graphic description of a savin death,

see Forbes, supra note 22. See generally Mohr, supra note 5, at

71-73: Gordon, supra note 29, at 37; Shorter, supra note 29, at

186-188. See also J. Weeks, Sex, Politics and Society 72 (1981)

(lead-poisoning “epidemic” because of its use as an abortifacient).

™ F. Grose, A Classical Dictionary of the Vulgar Tongue (1785).

ee ee OP et eS ee

the Arabic medical texts which in Latin translation were

standard medical references in the later middle ages

described no technique safer or more effective, and later

works in English add nothing significant.” Given the

general lack of inventiveness of pre-scientific societies,

the lack of variation in abortion techniques over six

centuries is hardly surprising.

Singularly lacking is any mention of “intrusion tech-

niques”—techniques involving intruding an instrument

through the cervix into the uterus to induce abortion.

With only primitive knowledge of women’s reproductive

anatomy,” intrusive intervention can rarely have been

successful. The closest one finds to an intrusion tech-

nique are “pessaries’’—vaginal suppositories, uually laced

with “abortifacient drugs,” that did not penetrate the

85 ARABIC TEXTS: Avicenna, Libri Canonis Medicine (Gerard of

Cremona trans. 1595); Rhazes, Liber ad Almansorem (1497) ;

Himes, supra note 32, at 139-151. ENGLISH TEXTS: 1 Compleat

Herbal 69-71, 94-95 (G. Swindells ed. 1787); M. Etmullerus, De-

scription of All Diseases Incident to Men, Women and Children

563 (3d ed. 1712); J. Pechey, Compleat Herbal of Physical Plants

13 (1707). The texts also describe “abortifacient” effects in mark-

edly different terms from other pharmacological effects: “Aborti-

facient” effects are always introduced with phrases such as “it

is said,” suggesting either uncertainty about the efficacy of the

potion or unwillingness to be thought to favor the practice.

McLaren, supra note 28, at 103-104, 123; Noonan, supra note 32,

at 201-207, 217.

%* Not only were potions often given in a belief that a woman

had blocked menses rather than pregnancy, but potions were some-

times given to prevent a uterus from rising in a woman’s body to

her throat to choke her! Shorter, supra note 29, at 286-287.

Shorter, supra at 188-191, conceded that instrumental abortions

were not a realistic possibility before the 19th century. See also

Devereux, supra note 28, at 28, 36-37. Gordon, supra note 29, at

37-38, believes intrusion techniques are of ancient lineage, but is

reduced to asking her readers to disregard part of a long descrip-

tion of an Eskimo intrusion technique when the informant tells

us that the purpose was to puncture the uterus.

cervix. Without penetration, however, pessaries were not

effective.”

Many still believe that medically primitive cultures, in-

cluding medieval England and colonial America, had

mysterious abortion techniques that were safe and ef-

fective. If so, why would such folk medicines abruptly

disappear in the nineteenth century in favor of highly

dangerous intrusion techniques that supposedly made

abortion se dangerous as to justify the statutes proscrib-

ing abortion? The answer is that before the nineteenth

century, traditional forms of abortion had been infanti-

cide and abandonment.”

Infanticide was a frequent crime when abortion was

still rare.” Royal courts actively punished those con-

victed of infanticide and denied benefit of clergy to one

accused of the crime. R. v. Parker, 73 Eng. Rep. 410

(1580). The earliest known regulations of midwives

(1512) were adopted to prevent the killing of infants.”

Parliament enacted ever more stringent statutes pro-

*7 Devereux, supra note 28, at 37; McLaren, supra note 28, at

101-102; Taussig, supra note 28, at 355-356.

88 M. Kenny, Abortion: the Whole Story 181 (1986).

%° One early book (ca. 1300) stated that infanticide within one

year of birth was cognizable only by ecclesiastical courts, Mirror of

Justices 139 (Selden Soc’y 1895). 2 Pollock & Maitland, supra, note

16 at 478 n.1, dismissed this book as worthless. Staunford, supra at

ch. 13; and Lambard, supra at 217-18, cited a 1315 conviction as in-

dicating that infanticide was a common law felony (in the same

passages where they denied that abortion was a common law

felony). Dead babies remained a common sight in London streets

into the 19th century. C. H. Rolph, A Backward Glance at the Age

of ‘Obscenity’, 32 Encounter 22 (June 1969). See also J. Boswell,

The Kindness of Others: The Abandonment of Children in West-

ern Europe from Late Antiquity to the Renaissance (1989); Gor-

don, supra note 29, at 32-35; P. Hoffer & N. Hull, Murdering

Mothers: Infanticide in England and New England 1558-1808

(1981); Dellapenna, supra note 4, ai 395-400; Helmholz, supra

note 21.

“J. Donnison, Midwives and Medical Men 18-20 (1988). These

regulations were repeatedly strengthened. T. Forbes, The Midwife

hibiting infanticide, culminating in “An Act to Prevent

the Destroying and Murdering of Bastard Children’, 21

James I, ch. 27, §3 (1624), that conclusively presumed

murder from concealment of the death of a child in order

to conceal its birth.

Only the emergence of abortion as a real alternative

to infanticide reduced the incidence of infanticide, making

it a minor legal problem. This intimate relationship be-

tween abortion and infanticide was demonstrated by Lord

Ellenborough’s Act which in the next section after the

first English statutory prohibition of abortion reduced

the penalty for concealment from death to a term of im-

prisonment. 43 Geo. III ch. 58, §§ 2-4 (1803).*

D. These Laws Were Applied Rigorously in the Amer-

ican Colonies

The English colonists brought the vommon law here of

abortion with them. Inadequately reported colonial court

records support this view. In just one colony, no less than

three prosecutions for criminal abortion arose before

1660: Proprietary v. Lambrozo, 58 Md. Archives 387-391

(1663) ; Proprietary v. Brooks, 10 Md. Archives 464-465,

486-488 (1656); Proprietary v. Mitchell, 10 Md. Archives

171-186 (1652) |see App. D, at 34a]. Defendants

escaped conviction in two of the cases because, before

trial, they married (and thereby disqualified) the prin-

cipal witness against them. Mitchell was convicted of

attempted murder, apparently because of a failure to

prove the cause of death for the stillborn child.

Prosecutions for abortion arose in other colonies. A

Rhode Island woman received 15 lashes for fornication

and the Witch 144-147 (1966). Wet-nurses were also seen as a

major population control device, J. Guillemeau, The Nursing of

Children preface (1612). See aleo J. Sharp, The Midwives Book

38 (1671).

*! For the legislative history, see Keown, supra note 2 at 12-21.

“2 See also Proprietary v. Robins, 41 Md. Archives 20 (1658),

and Robins v. Robins, 41 Md. Archives 85 (1658).

and attempted abortion. Colony v. Allen, Newport Cnty.

Gen. Ct. Trials: 1671-1724A n.p. (Sept. 4, 1683 sess.) .**

Indictments survive from Jn re the Stillbirth of Agnita

Hendricks’ Bastard Child (1679), Ct. Rec. of New Castle

on Del. 1676-1681, at 274-275 (1904), and Colony v.

Powell (Va. 1635), 7 Am. L. Rec. 43 (1954). A 1716

New York municipal ordinance forbade midwives to aid

or counsel abortion. 3 Min. of the Common Council of

N.Y. 122 [see App. D, at 37a].**

While abortion and infanticide were not common in

colonial America,** more colonial legal activity, just as

in England, was directed against infanticide than abor-

tion. Still, colonial jurist James Parker, in one of the

few secondary sources on the common law as applied in

a colony, correctly concluded that the common law of

abortion was part of the law applied in New York. J.

Parker, Conductor Generalis: Or, the Ojfice, Duty, and

*8 Noted in L. Koehler, A Search for Power: the “Weaker Sex”

in Seventeenth-Century New England 329, 336 n.132 (1980).

“4M. Gordon, Aesculapius Comes to the Colonies: the Story of

the Early Days of Medicine in the Thirteen Original Colonies 174-

175 (1949). For a similar ordinance in Virginia see S. Massengill,

A Sketch of Medicine and Pharmacy 294 (2d ed. 1942).

“6 J. D’Emilio & E. Freedman, Intimate Matters: A History of

Sexuality in America 26, 65 (1988); Gordon, supra note 29, at 33,

49-51; C. Scholten, Childbearing in American Society 1650-1850

9 (1985).

*° Hoffer & Hull, supra note 39, at 33-113. Concealment statutes

were enacted in eight colonies or states before an abortion statute,

beginning with Massachusetts in 1696, Charters & Gen’l L. of the

Colony & Prov. of Mass. Bay 293 (Dane, Prescott, & Story eds.

1814). At least one woman was prosecuted for concealment before

a colonial statute was adopted, 2 J. Winthrop, History of New

England 1630-1649 317-318 (J. Hosmer ed. 1908). Even the Salem

Witchcraft Trials have been linked to infanticide, Hoffer & Hull,

supra at 55-56. The close empirical link of the concealment stat-

utes and abortion was demonstrated by the 11 states that enacted

a concealment statute contemporaneously with the state’s first abor-

tion statute and by the 20 states that codified the two statutes

together. Dellapenna, supra note 4, at 399.

Authority of Justices of the Peace 216-17 (1764) [see

App. D, at 38a].

E. When Abortion Became More Common than In-

fanticide with the Development of Technical Means

with a Lessened Danger to the Mother’s Life, Eng-

lish and American Law Came to Emphasize Abor-

tion as the Primary Evil

Abortion statutes were enacted throughout the nation

and the world in the nineteenth century.** Roe’s majority

viewed this, and the accompanying increase in prosecu-

tions, as resulting from Victorian sexual attitudes, fears

for maternal health, and concern for fetal life. 410 U.S.

at 147-152. Means insisted that only fear for maternal

health applied.** They never explained why these reasons

became weighty only in the nineteenth century. Mohr

and his associates, while recognizing a “moral prejudice”

favoring the life of unborn children,*® argued that the

central reason for the statutes was to assure the dom-

inance of the newly organized allopathic physicians

over competitors, especially midwives, and to a lesser

degree concern to reverse falling birthrates among the

native-born middle classes and to assure paternal dom-

inance in the household.” These reasons, they claimed,

47 See generally Dellapenna, supra note 4, 389-407; Quay, Justifi-

able Abortion—Medical and Legal Foundations (Pt. II), 49 Geo. LJ.

395 (1961); J. Witherspoon, Reexamining Roe: Nineteenth-

Century Abortion Statutes and the Fourteenth Amendment, 17 St.

Mary’s L.J. 29 (1985).

48 Means I, supra note 3, at 511-15; Means II, swvra note 3, at

382-92.

49 Mohr, supra note 5, at 35-36, 87, 104, 110-11, 140, 143-44,

147-59, 164-70, 196-99, 207, 214, 216-17, 261-63; Casey Brief, supra

note 5, at 11, 15, 26-28; Webster Brief, supra note 5, at 11, 16,

25-28.

5° Mohr, supra note 5, at 32-37, 86-122, 128-31, 134-35, 147-82,

166-70, 187-90, 202, 204, 207-16, 226-29, 237-40, 256-60; Casey

Brief, supra note 5, at 13-21; Webster Brief, supra note 5, at 13-21.

Mohr discounted concern for maternal health because he believed

that abortion was safe. Mohr, supra, at 25-40.

were sufficient, without concern over fetal life, to over-

come strong public support—among men as well as

women *'—for the free availability of abortions.

The actual reasons are quite different. Until Roe, vol-

untary abortion, unlike voluntary surgery generally, was

never treated as a private matter between a patient and

her physician. The different legislative response is

rooted in technological change.

The first report of an intrusion technique in England

was in a case in 1732:°* A woman was sentenced to the

pillory and to three years in prison for inserting an

iron rod into a second woman’s womb, inducing an abor-

tion at less than 14 weeks of gestation (well before

quickening). R. v. Beare, 2 The Gentleman’s Magazine

931 (Aug. 1732) [see App. C, at 27a]. Similar prosecu-

tions arose in 1781 and 1803. R. v. Anonymous, 3 J.

Chitty, Criminal Law 798-801 (1816); R. v. Tinckler

(1781), 1 E. East, Pleas of the Crown 354-356 (1806)

[see App. C, at 31a].

Abortion remained highly dangerous; the inserted ob-

ject served as a highway for ready infection, and often

51 See, e.g., Mohr, supra note 5, at 108-10, 115-18; Casey Brief,

supra note 5, at 22-23.

- Consider the decision of the New York legislature in 1828 to

reject a ban on all surgery unless “necessary for the preservation

of life,” but to accept another part of the same proposal that de-

clared abortion a crime [see App. D, at 39a].

°8 The earliest mention of an intrusion procedure anywhere was

in a description in Diderot’s Encyclopedie [at 452 (1766)] which

described an evidently bizarre experiment in Nurnberg in 1714.

Shorter, supra note 29, at 188-208, places the invention of effec-

tive intrusion techniques late in the 19th century.

* Another case, four centuries earlier, resulted in the imprison-

ment of three men for the abortion of an unborn child of one

month’s gestation. R. v. Code (Hampshire Eyre 1281), JUST 1/789,

m.1 [see App. C, at 14a].

Ne ee tet eee ho Ot ee. Le Gh ote

* ee ed ~ OD et et OW RW ie Lets

was sufficiently painful to induce life-threatening shock.”

Death was not as certain, however, as with injury and

ingestion techniques. Intrusion quickly became the tech-

nique of choice, setting the stage for the surgical and

other intrusion techniques that account for most abortions

performed today. Lord Ellenborough himself spoke to the

resulting sudden upsurge in abortions in the preamble to

his famous Act: It concerned “certain . . . heinous of-

fenses . . . of late also frequently committed ...” 43

Geo. III, ch. 58. The drafters of the first Pennsylvania

abortion statute made a similar observation. Pa. Daily

Legis. Rec. No. 19, at 151 (1860). The Maryland Court

of Appeals made the point even more directly in Worth-

ington v. State, 48 A. 355, 356-57 (Md. 1901):

It is common knowledge that death is not now the

usual, nor, indeed, the always probable, consequence

of an abortion. The death of the mother, doubtless,

more frequently resulted in the days of rude surgery,

when the character and properties of powerful drugs

were but little known, and the control over their

application more limited. But, in these days of ad-

vanced surgery and marvelous medical science and

skill, operations are performed and powerful drugs

administered by skillful and careful men without

danger to the life of the patient. Indeed, it is this

comparative immunity from danger to the woman

which has doubtless led to great increase of the

crime, to the establishment of a class of educated pro-

fessional abortionists, and to the enactment of the

severe statutes almost everywhere... .

With the introduction of intrusion techniques, fears for

the health risks to mothers of abortion first appeared in

the legal literature.”

55 Bates & Zawadski, supra note 28, at 85-87. Apparently abor-

tions killed one-third of the women undergoing them early in the

19th century. Dellapenna, supra note 4, at 400, 412.

56 State v. Murphy, 27 N.J.L. 112, 114-115 (1858); O.W. Bartley,

A Treatise on Forensic Medicine 3, 5 (1815); T.R. Beck & J.

Beck, Elements of Medical Jurisprudence 276-77 (1823); J. Burns,

The Anatomy of the Gravid Uterus 57-58 (1799); 1 East, supra

That abortion statutes almost invariably were adopted

in the general codification of common law crimes *’ itself

suggests that the statutes were not thought to change the

law. Moreover, all nineteenth-century surgery was dan-

gerous for the same reasons as for intrusive abortions

(infection and shock), yet only for abortion were social

or other pressures likely to induce one to undergo the pro-

cedure without prior risk to life or limb. Abortion stat-

utes responded to premature application of new medical

technologies,”* indicating that intrusive abortions were as

criminal as injury or ingestion abortions and that abor-

tions were criminal regardless of the stage of pregnancy.

The statutes settled the somewhat uncertain law of abor-

tion,” uncertainty that suggests that abortion had not

note 24, at 230; G. Male, An Epitome of Judicial or Forensic Medi-

cine 116-117 (1816); A. Taylor, Manual of Medical Jurisprudence

595 (1842). See generally Keown, supra note 2, at 35-38.

** Lord Ellenborough’s Act, officially the “Offenses Against the

Person Act,” was the first comprehensive criminal statute in Eng-

lish law. 11 Holdsworth, supra note 16, at 537.

58 Worthington v. State, 48 A. 355, 356-57 (Md. 1901); Moore

v. State, 40 S.W. 287 (Tex. Crim. 1897). See generally Keown,

supra note 2, at 12-48.

5° Nineteenth-century cases split over whether pre-quickening

abortion was a common-law crime. CRIME: State v. Reed, 45 Ark.

333 (1885); Lamb v. State, 10 A. 208 (Md. 1887); State v. Slagle,

83 N.C. 630 (1880); Mills v. Commonwealth, 18 Pa. 680, (1850).

NO CRIME: Mitchell v. Commonwealth, 78 Ky. 204 (1879): Smith

v. State, 33 Me. 48, 57 (1851) ; Commonwealth v. Parker, 50 Mass.

(9 Met.) 263 (1845); Commonwealth v. Bangs, 9 Mass. 387

(1812); State v. Cooper, 22 N.J.L. 52 (1848). Dicta in other

cases also split on the question. The nineteenth-century’s two lead-

ing treatises on American criminal law both concluded that, not-

withstanding the several cases recently decided to the contrary,

pre-quickening abortion was a common-law crime. 1 J.P. Bishop,

Criminal Law § 386 (2d ed. 1858); 1 F. Wharton, The Criminal

Law of the United States §§ 1220-1230 (5th rev. ed. 1861) [see

App. D, at 45a]. The “Historians’ Briefs” simply assert, without

any discussion of the evidence, that abortion was not a crime at

common law. Casey Brief, supra note 5, at 5; Webster Brief,

supra note 5, at 4.

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}

been a common practice, solemnly reaffirming social policy

in the face of changing social behavior.

F. The Shift of Emphasis from Infanticide to Abortion

as the Social Evil Represented a Widely-Shared

Consensus on the Value of Fetal Life, a Consensus

that Included Nineteenth-Ceniury Feminists and

Thus Can Hardly Be Characterized as a Conspiracy

by Male Physicians and Others to Suppress Women

The nineteenth-century saw a steady broadening of

abortion statutes to reach all abortions regardless of

technique or stage of pregnancy and to include (in a

number of states) punishment for the mother.” This

broadening suggests, as contemporary courts generally

held, that protection of fetal life was the major purpose

of the statutes. Dougherty v. People, 1 Colo. 514 (1872) ;

State v. Lee, 37 A. 75 (Conn. 1897); State v. Moore, 52

Iowa 128 (1868) [see App. D, at 48a]; State v. Watson,

1 P. 770 (Kan. 1883) ; Smith v. State, 33 Me. 48 (1851) ;

People v. Sessions, 26 N.W. 291 (Mich. 1886); State v.

Gedicke, 43 N.J.L. 86 (1881) ; State v. Crook, 51 P. 1091

(Utah 1898); State v. Howard, 32 Vt. 380 (1859).°

Many religious and social leaders also supported treating

abortion as a crime.” Only by impugning the integrity

©) The broadening is illustrated by the New York abortion stat-

utes [see App. D, at 39a.] In 1845, New York made it a mis-

demeanor for a woman to seek or procure an abortion, raising it to

a felony in 1872. Both “Historians’ Briefs” flatly assert that women

were never subject to punishment for abortion. Casey Brief, supra

note 5, at 1; Webster Brief, supra note 5, 1.

61 The “Historians’ Briefs” mentioned only one case, and that

to the contrary. Casey Brief, supra note 5, at 27-28; Webster

Brief, supra note 5, at 26. They omit even mention of a later

case from the same court, State v. Gedicke, cited in the text.

62 See, e.g., The Resolution of the Medical Society of the State

of New York, 1867 N.Y. Assembly J. 443-44 (Feb. 28, 1867) [see

App. D, at 44a]. The Roe majority quoted other representative

statements, 410 U.S. at 141-142. See also Mohr, supra note 9, at

35-36, 175-76, 182-196; M. Olasky, The Press and Abortion, 1838-

1988 17-53 (1988).

of innumerable social and professional leaders can one

argue that protection of unborn children from the rising

numbers of abortions was not a significant concern.

Historians favoring abortion rights would have us

believe that nineteenth-century abortion statutes were

adopted in struggles between doctors and midwives for

markets, or between husbands and wives for dominance

in homes, or of men to use women to prevent “race

suicide.” * If so, why were nineteenth-century feminists,

even the most militant, adamantly opposed the legality of

abortion?“ This attitude continued into the twentieth

century, with Margaret Sanger advancing abhorrence of

abortion as a major reason for founding Planned Parent-

hood Federation.”

The authors of the Casey Brief, see feminist opposi-

tion to abortion based on Victorian hostility to sexuality

or to “male license.” * The sharp contrast—even among

%3 See the text supra at notes 47-51.

* D’Emilio & Freedman, supra note 45, at 150-67; Gordon, supra

note 29, at 106-20, Mohr, supra note 5, at 109-14. See, e.g., E.

Duffy, The Relations of the Sexes 274-75 (1876); A. Stockham,

Tokology 246-50 (1887); (Susan B.) Anthony, Marriage and

Maternity, 4 The Revolution 4 (July 8, 1869); (Elizabeth Cady)

Stanton, Child Murder, 1 The Revolution 146-47 (March 12, 1868).

See generally D’Emilio & Freedman, supra at 64; Gordon, supra at

129; Mohr, supra at 113. Note also that the penalties for abortion

were harsher than for contraception. Only professional abortionists

defended the social propriety of the procedures. Mohr, supra at

62-65, 76-79; Olasky, supra note 62, at 3-17.

*° M. Sanger, Motherhood in Bondage 394-96 (1928). Petchesky

decried Sanger’s stand on abortion as a sell-out to male doctors.

Petchesky, supra note 29, at 89-95. D’Emilio & Freedman described

the politics of Margaret Sanger’s work for birth control without

mentioning her opposition to abortion. D’Emilio & Freedman, supra

note 45, at 243-46.

* Casey Brief, supra note 9, at 18-19. Note that they do not

mention the virtually unanimous condemnation of abortion by

nineteenth-century feminists, seeking to link support for contracep-

tion to support for abortion. Mohr, at least, admits the “anomaly.”

Mohr, supra note 9, at 110-14.

women who had had abortions—between the horror fem-

inists expressed for abortion and their accepting attitude

to contraception suggests that their attitude was focused

on abortion rather than on sex or men.” The story of

the early feminists suggests again that nineteenth-century

legislatures responded to a widely shared consensus that

abortion was the taking of human life and far different

from contraception.

III. LEGISLATURES ARE THE PROPER FORA TO RE-

SOLVE THE COMPETING CLAIMS OF MOTHERS

AND THEIR OFFSPRING

The historical nature of the abortion problem as the

intersection of policies protecting mothers and children

with changing medical technology suggests that the bal-

ancing of the resulting claims is best left to legislative

rather than judicial development.”

A. Changes in Medical Technology Are Central to

Proper Resolution of the Controversies over

Abortion

Evolving medical technologies for performing abortions

and for recognizing and caring for unborn children have

shaped the interests in the controversy over abortion.

Until the twentieth century, both sets of interests con-

verged to criminalize abortion. Now those interests have

diverged, bringing controversy to an area where once all

agreed that only evil could be found.

Technical progress continued. Pain-killing drugs (be

ginning with morphine in 1806), anesthesia (from the

1840’s), antiseptics (after 1867), sulfa drugs and anti-

bioties (from the 1930’s) dramatically reduced the risk

of maternal death or injury. Many women thus came

to see abortion’s prohibition, rather than its possibility,

as the threat to their well-being.

87 See, e.g., D’Emilio & Freedman, supra note 51, at 50-63, 64-65.

68 A. Bickel, The Morality of Consent 28 (1975). See also Roe

v. Wade, 410 U.S. at 219-223 (Rehnquist & White, JJ., dissenting).

Simultaneously, the perceived interests of society in

unborn children changed as new medical information and

technologies emerged with a focus on human reproduction.

Consider the demise of the ancient distinction of “quick-

ening.” Application of cell theory to embryology at the

opening of the nineteenth century revolutionized our

understanding human reproduction ® and was promptly

followed by abortion statutes removing distinctions based

on quickening.” An English court promptly interpreted

the earlier statutory term “quick with child” to mean

conception, rather than the felt movement of the child

within the womb, returning to the original understand-

ing of that term. R. v. Wycherley, 173 Eng. Rep. 486

(N.P. 1838). The changes underlined that the statutes

were crafted to protect human life.

Today, embryologists or fetologists can diagnose and

treat an unborn child independently of the mother, in-

cluding removing the child from its mother’s womb for

surgery and then returning it to the womb to complete

gestation. Facing such developments, one can hardly

consider the child a mere extension of its mother.” For

* 3 A History of Science 456-483 (R. Taton ed. 1965); A. Meyer,

The Rise of Embryology 28-120, 138-147, 170-194, 302-841 (1939) ;

J. Needham, A History of Embryology 115-229 (1959).

7 Tilinois had already removed the quickening distinction, but

only for abortions by a “noxious substance.’ Ill. Rev. Code § 46

(1827). Maine adopted the first American statute removing all

distinctions based on quickening. Me. Rev. Stat., ch. 160, §§ 13, 14

(1840). See also The offenses against the Persons Act, 7 Will. IV

& 1 Vict., ch. 85 (1837).

™ Philip Rafferty’s research has persuaded the Oxford English

Dictionary to change its definition of “quick with child” to conform

to the Wycherley definition, according to a letter, date 23 Nov.

1990, from J.A. Simpson, co-editor of the Dictionary, to Mr. Raf-

ferty (copy in my possession). The phrase apparently became

confused with the phrase “with quick child.” But see State v.

Cooper, 22 N.J.L. 58, 57 (1849).

"2 Consider the odyssey of Dr. Bernard Nathanson from “Abor-

tion King” of New York to anti-abortion activist through his ex-

one who does not accept fetal personhood, the continuing

prohibition of abortions that are increasingly safe for

mothers can only seem a serious intrusion into the liberty

of women because of a “moral prejudice”. This view

ignores the unbroken common law tradition of protecting

unwanted children as far as possible from aggression by

their parents.

Reproductive technology remains one of the most rap-

idly advancing areas of medical research; hoping not

to impede this progress, this Court has sought to preserve

physicians’ autonomy.” While professional autonomy pro-

motes continuing medical advances, law cannot be fash-

ioned solely to protect the autonomy of the technicians:

Issues relating to abortion transcend mere technical com-

petence. In balancing the interests and values created

or reinforced by changing medical technologies, states

need the same broad authority to regulate the conduct

of physicians performing abortions as for other medical

procedures.

B. Legislatures Are Best Placed to Explore Appropri-

ate Regulatory Responses to Changing Reproductive

Technologies

To resolve this controversy, we must escape the lan-

guage of rights and the atomistic vision of society it

entails: 7* we must balance concern for the dignity of

women and the needs of poor and working mothers with

periences as a fetologist. B. Nathanson, Aborting America (1979) ;

B. Nathanson, The Abortion Papers (1983).

™ In Doe v. Bolton, the majority accorded doctors standing as a

class, 410 U.S. at 188-189, and repeatedly adverted to the doctors’

privacy interest, id. at 192-193, 196-201. Although the majority

denied standing to a specific doctor in Roe v. Wade, 410 U.S. at

125-127, they repeatedly referred to medical opinions, id. at 130-

182, 141-146, 149-150, 159, 163, and they finally gave the physician

decision-making power equal to the mother, id. at 153, 162-166.

See also Thornburgh v. American College of Obstetricians, 476

U.S. 747, 759-765 (1986).

™M. Glendon, Abortion and Divorce in Western Law 131

(1987); Veltri, Book Rev., 18 Oh. N.U.L. Rev. 257, 272 (1991).

the welfare of unborn children, all in a context contin-

ually reshaped by changing medical technologies.” To

address these concerns adequately, the abortion question

must be returned to the political processes, primarily in

the states.

Legislatures are better at establishing policies for

the future, leaving courts to fashion remedies for past

wrongs.” A legislature can fund programs to reduce

the need for abortion and can accurately reflect the

prevailing sentiments of the community on this divisive

issue. Courts can only issue injunctions; they are simply

not suited to serve as a board of review for issues of

medical technology, City of Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416, 454-459 (1983)

(O’Connor, J., dissenting), as the court in Roe recognized

when it was unable to decide when an individual human

life (a “person”) begins, 410 U.S. at 160. Yet such de-

cisions of life and death are simply too important to be

left to the technicians, especially when the technicians

have an economic stake in deciding against life. Finally,

as Justice Brandeis argued in his dissent to New State

Ice Co. v. Liebman, 285 U.S. 262, 309-311 (1932), for

such morally and socially unsettled problems, the states

should serve as laboratories for social experiment. See

also Addington v. Texas, 441 U.S. 418, 431 (1979).

CONCLUSION

Roe v. Wade should be overruled. Failing that, the

application of Roe v. Wade should be reconsidered and

the Pennsylvania statutes should be upheld as consistent

with the values and policies expressed in that decision.

™ Note the factual changes between the trial and its review by

this Court in Planned Parenthood of Cent. Mo. v. Danforth, 428

U.S. 52, 75-79, 95-99 (White, J., disenting, with Burger, C.J., &

Rehnquist, J.), 101-102 (Stevens, J., concurring) (1976). See

generally M Legal Abortion: The Impending Obsolescence of

the Trimester Framework, 14 Am. J.L. & Med. 69 (1988).

™ City of Richmond v. J.A. Croson Co., 469 U.S. 469, 513-14

(1989) (Stevens, J., concurring).

April 6, 1992

Respectfully submitted,

JOSEPH W. DELLAPENNA

Professor of Law

Villanova University

Villanova, PA 19085

(215) 645-7075

Attorney for Amicus Curiae

American Academy of

Medical Ethics

APPENDICES

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APPENDIX A

THE INTEREST OF THE AMICUS CURIAE

This brief is filed under Supreme Court Rule 36, with

the consent of the parties, on behalf of the American

Academy of Medical Ethics as amicus curiae in support

of Respondents, Cross-Petitioners. The Academy is an

educational and lobbying organization with approximately

20,000 physician members. The Academy was incorpo-

rated in 1986 to respond to the challenges to established

medical ethics emerging in recent decades. The Academy

is co-publisher of the journal Jssues in Law and Medicine

and sponsors national meetings as fora for dialogue on

medical and ethical questions. The Academy follows the

Hippocratic Oath in opposing abortion except to save the

life of the mother. The Academy sees an unborn child as

a patient deserving the protection and the full advocacy

of an attending physician. The Academy has consistently

asked the Court to overrule Roe v. Wade, 410 U.S. 113

(1973), or to reconsider its application in light of current

medical technology and societal interests.

APPENDIX B'

WHAT REALLY HAPPENED IN REX v. de BOURTON?

(a.k.a. the Twinslayer’s Case)

1327-1328

The Uncorrected, Incomplete Year Book Report of Rex v. de

Bourton, Y.B. Mich. 1 Edw. 3 f. 23 pl. 18 (1327)?

A writ issued to the sheriff of Gloucester to apprehend

one D. who, according to the testimony of Sir. G. Scrop,

is supposed to have beaten a woman in an advanced state

of pregnancy who was carrying twins, whereupon directly

afterwards one twin died, and she was delivered of the

other, who was baptized John by name, and two days

afterwards, through the injury he had sustained, the child

died: and the indictment was returned before Sir G.

Scrop, and D. came, and pled Not guilty, and for the rea-

son that the Justices were unwilling to adjudge this thing

as felony, the accused was released to mainpernors, and

then the argument was adjourned since die. Thus the

writ issued, as before stated, and Sir G. Scrop rehearsed

the entire case, and how he [D.] came and pled.

Herle: to the sheriff: Produce the body, ete. And the)

sheriff returned the writ to the bailiff of the franchise

1 The appendix was adapted from the unpublished research of Mr.

Philip Rafferty of the Los Angeles Bar. The translations are by

Dr. J.H. Baker of Cambridge University. Dr. Baker’s text, An

Introduction to English Legal History (3d ed. 1990), is a leading

text for the study of the topic. All translations are Dr. Baker’s.

The footnotes are mine.

2 This is the form of the case as known to the later common law

commentators such as Staunford, Coke, Hale, Blackstone, and

Hawkins, as well as how it is known to all modern commentators.

See, e.g., Means, The Phoenix of Abortional Freedom: Is a Penum-

bral or Ninth-Amendment Right about to Arise from the Nine-

teenth-Century Legislative Ashes of a Fourteenth-Century Common-

Law Liberty?, 17 N.Y.L.F. 335, 337 (1971).

ee ce ee et eS ee OD 2s all iP a ward

}

38a

of such place, who said, that the same fellow was taken

by the mayor of Bristol, but of the cause of this arrest

we are wholly ignorant.

Corrected, Incomplete Year Book Report of

Rex v. de Bourton *

A writ issued to the sheriff of Gloucestershire to take

one D., who, by the testimony of Sir Geoffrey Scrop, is

supposed to have beaten a woman great with two chil-

dren, so that immediately afterwards one of the children

died, and she was delivered of the other, which was bap-

tised by the name of Joan, but died two days later from

the injury which the child had; and the indictment was

returned before Sir Geoffrey Scrop; and D. came and

pleaded Not guilty; and because the justices were not

minded to treat‘ this thing as a felony, the indictee was

released on mainprise [bail] and then this matter re-

mained with a day set, and so the writ was issued as

above, and it said that by testimony of Sir Geoffrey

Serop etc., and recited the whole of the case [as above],

and how he came and pleaded etc., [and that the sheriff

should have caused his body to come etc.]*® And the

sheriff returned the writ to the bailiffs of the franchise of

such and such a place, who said that the person in ques-

8 Dr. Baker uncovered this text by examining the four original

manuscripts of the Year Book Report: Lincoln’s MS. Hale 72 at

fo. 86v; Lincoln’s Inn MS. Hale 116 at fo. 3; Lincoln’s Inn MS.

Hale 137(2) at fo. 11; Bodleian Library Oxford MS. Bodl. 363 at

fo. 9v. The four agree with each other and differ from the printed

version—some two centuries later than the manuscripts. Matters

wholly omitted in the printed text are italicized. Dr. Baker’s letter

describing his search is on file with Mr. Rafferty.

4 d’agarder (“to award”) in all MSS.; adjudge only in the printed

version.

5 The passage is garbled in the printed version, coming after the

reference to C.J. Herle, who was Chief Justice of Common Pleas and

not of the King’s Bench. The case was being heard before the

King’s Bench.

tion had been taken by the mayor of Bristol, but they

were wholly unaware of the reason for the taking etc.

Therefore, a writ issued to the major of Bristol to cause

the body to come, together with the cause ete.

The Original Court Records in Rex v. de Bourton,

K.B. 27/270, Rex m.9 (Mich. term 1327)

Gloucestershire. The lord king has sent his writ to the

sheriff of Gloucestershire in these words: Edward by

grace of God kind of England, lord of Ireland and duke

of Acquitaine, to the sheriff of Gloucestershire, greeting!

Because we have learned by the certificate of our beloved

and faithful Geoffrey le Scrop, our chief justice, that

Richard de Bourton has been indicted for that he entered

the house of William Carles, tailor, at Bristol, and as-

saulted Alice, wife of the same William, being there

greatly pregnant with two children,® and with his hands

beat and ill treated her, and violently knocked her to the

ground, and with his feet so trampled upon the ground

[sic] that he feloniously killed one of the aforesaid chil-

dren in the belly of the same Alice its mother, and broke

the head and arm of the other of the same children so

that it was forthwith born and baptised by the name of

Joan, and immediately after receiving her baptism died

from the injury’ aforesaid; and that the foregoing mat-

ters still remain undetermined before ourself; and that

this Richard had a day before us at a certain day now

past for hearing the jury of the country on which, for

good and ill, he put himself concerning the felony afore-

said, by mainprise of John le Taverner of Bristol and

others named in the said certificate, who mainprised to

have him before us at the said term; and on behalf of

the selfsame Richard we are given to understand that

by reason of the foregoing he has been taken, since that

mainprise, and detained in our prison of Bristol, on ac-

6 grossam doubus pueris pregnantem

T de malo

count of which he could not come before us on the afore-

said day to stand to right upon the foregoing according to

the law and custom of our realm: We, willing what is

just to be done upon the foregoing, command you (as we

commanded before) that’ if the same Richard is detained

in the aforesaid prison by reason of the foregoing and

not otherwise, and if he finds you sufficient mainpernors

who mainprise him before us in a fortnight from Michael-

mas day wheresoever we should then be in England, to

do and receive what our court should decide in the fore-

going, then cause the selfsame Richard to be meanwhile

delivered from prison by the mainprise aforesaid. And

have you there the names of those mainpernors, and this

writ. And if the same Richard is indicted for any other

felonies or tresspasses in your county, then without delay

send us distinctly and openly under your seal the tenor of

the aforesaid indictment at the aforesaid day, that we

may do further therein what by the law and custom

aforesaid should be done, or else signify unto us the rea-

son why you wili not or cannot carry out our command

heretofore directed unto you. Witness my self at North-

allerton, the 14th day of Juiy in the first year of our

reign [1327].

By virtue of which writ, the sheriff (namely, Thomas

de Rodbergh) returns that he command Everarrd Fraun-

ceys and Robert Grene, bailiffs of the liberty of the vill

of Bristol, who answered him that Richard de Bourten,

lately indicted for the death of Joan, daughter of William

Carles, tailor, at Bristol, as is contained in the writ, has

not been taken by them the said bailiffs nor is for that

reason detained in prison, but that he has been taken and

detained by Roger Rurtels the mayor of the aforesaid vill

for certain reasons which are unknown to them the said

bailiffs etc.

And, after inspection of the aforesaid writ and return

etc., the mayor and bailiffs of the vill of Bristol are com-

manded that if the same Richard finds sufficient main-

pernors to be before the king in a fortnight from St.

Hilary wheresoever etc. to hear the aforesaid jury and to

do further and receive what the king’s court should de-

cide for him, then they should cause the selfsame Richard

to be meanwhile delivered from the aforesaid prison by

the above-mentioned mainprise. And if he is indicted for

any other felonies or trespasses before them in the vill

aforesaid, then they should distinctly and openly under

their seals send that indictment (if any there be) or else

the cause for which he was taken, to the king at the day

aforesaid upon the incumbent peril, so that the lord king

further etc. what is to be done etc.

At which day the mayor and bailiffs-of the vill of

Bristol return that the aforesaid Richard de Bourton did

not find sufficient mainpernors for being before the lord

king at this day, namely in the quindene of St. Hilary

ete., and to do and receive what is commanded in the

writ, as a result of which they did nothing further in

executing the writ etc. And because the same mayor

and bailiffs have not returned here before the king the

names of themselves according to the form of the statute

etc., and also have not answered etc. for what reason the

aforesaid Richard de Bourton has been taken, as in the

lord king’s writ directed them therein was commanded,

nor whether or not the aforesaid Richard is indicted for

any other felonies or trespasses before them in the vill

aforesaid, the same mayor and bailiffs (namely, John le

Romeseie, mayor, and Hugh de Langebrigge and Stephan

Lespcier, bailiffs etc.) are in mercy. And they are as-

sessed by the justices at 40s. And the sheriff is com-

manded that he should not omit by reason of the liberty

of the aforesaid vill to enter the same etc., and if the

same Richard should find him sufficient mainpernors to

mainprise to have him before the king in a fortnight from

Easter day wheresoever etc. to hear the jury aforesaid etc.

and further to do etc., then he should cause the selfsame

Richard to be meanwhile delivered from the aforesaid

prison by mainprise aforesaid etc. The sheriff is also

commanded that he should not omit on account of the

liberty to cause the aforesaid mayor and bailiffs to come

before the king at the said term to answer the king for

the return ete. Also the mayor and bailiffs are com-

manded that if the aforesaid Richard is indicted for any

felonies and trespasses before them in the aforesaid vill,

then they should distinctly and openly under their seals

send that indictment (if any there be) or else the cause

for which he was taken, to the king at the day aforesaid

ete. so that further etc.

Original Court Records of Further Proceedings in Rex v. de

Bourton, K.B. 27/242, Rex m.9 (Easter term 1328)

Gloucestershire. The jury at the suit of the lord king

to make recognition ete. whether Richard de Bourton of

Bristol is guilty of the death of Joan, daughter of Wil-

liam Carles, tailor of Bristol, feloniously slain in the

suburbs of Bristol, whereof he has been indicted (as ap-

pears to the king by a certain indictment lately made

thereof before the coroners of the vill of Bristol, and

which the king caused to come before him), is put in

respite until the octaves of St. John the Baptist whereso-

ever etc., for want of jurors, because none,[came] ete.

Therefore, let the sheriff have the bodies of all jurors

before the king at the said term, etc. And let the afore-

said Richard meanwhile be released by the mainprise

which heretofore found, from day to day until ete. And

the sheriff is commanded that except for them etc. he

should put in as many and such etc. and have them before

the king at the said term ete.

Original Court Records Concluding Procedings in R. v. de

Bourton, K.B. 27/273, Rex m.12d (Octave of St. John, 2 Edw.

III, 1328)

Gloucestershire. The jury at the suit of the lord king to

make recognition of whether or not Richard de Bourton of

Bristol is guilty of the death of Joan, daughter of Wil-

liam Carles, tailor of Bristol, feloniously slain in the

suburbs of Bristol, whereof he is indicted—as appears to

the king by a certain indictment lately made thereof

before the coroners of the vill of Bristol, and which the

king has cause to come before [himself] ete.—is put in

respite until one month from Michaelmas day, whereso-

ever etc., for want of jurors, because none [came] etc.

Therefore let the sheriff have the bodies of all the jurors

before the king at the said date ete. And let the afore-

said Richard meanwhile be released by the mainprise

which he previously found, from day to day ete. After-

wards, the same term, the aforesaid Richard came and

proffered a charter of the present lord king for pardon

of the aforesaid felony, which is enrolled in Hilary term

in the first year of the reign of our present king. There-

fore he |is to go} thereof sine die etc.

Dr. Baker’s Comments on the Problem of Deciding the True

Course of Events in Rex v. de Bourton in two letters sent to

Mr. Rafferty in 1985

From the letter of Nov. 6, 1985:

“Richard de Bourton was indicted before the coroners

of Bristol (1) for feloniously killing a child which died in

the womb, (2) for causing the death of the other (Chris-

tened Joan). We do not... have the indictment, though

as summarized [in the year book report] .. . it does

seem that the words of the felony applied to both children.

In the later entries, the offense is described only as the

killing of Joan, but that may have been clerical shorthand.

“The indictment was removed into the King’s Bench

some time in the reign of Edward II. The indictment

files do not survive. I discovered that the King’s Bench

heid two gaol deliveries in Gloucestershire in the 1320’s,

but the indictment is not recorded there (K.B. 27/247,

Rex m.1d; K.B. 27/255, Rex m.24).

“Bourton pleaded not guilty, and was released on

mainprise to appear at some time before Michelmas term

1327, but before his appearance he was arrested by the

mayor and bailiffs of Bristol for some undisclosed cause.

... [That] the judges were not minded to treat it as a

felony .. . seems to me... not a final determination of

that question—indeed the record says that the issue of

felony was still pending in 1328—but related only the

bail application.”

From the letter of Dec. 12, 1985:

“As I now see the case, the record shows that Bourton

was indicted for feloniously killing a child which died in

the womb of the mother and another (Joan) which died

after birth and baptism; that he pleaded not guilty, but

was never tried; and that in Trinity term 1328 he was

discharged on the strength of a pardon granted a year

earlier. There is therefore nothing of record to show

whether the court considered the facts alleged to amount

to a felony or not, except insofar as the case was con-

tinued through several terms on the basis that it was a

felony. (It could be, however, that only the killing of Joan

was so regarded.) It is therefore the yearbook report that

remains crucial, and this appears to say (in the middle)

that Bourton was granted bail because the judges were

not minded to treat it as a felony. The status and mean-

ing of this pronouncement still seem[s] to me less than

clear. For one thing, it seems contrary to the record,

which shows that the case was continued on the basis

that a jury had been summoned to try whether Bourton

was guilty of feloniously killing (what we should call

manslaughter). That issue arose from Bourton’s plea

of not guilty, which the court had recorded. [There is

therefore no question of the indictment having been

quashed on the ground that it did not disclose a felony.

Secondly, although it is probable that bail was not thought

to be grantable for murder in medieval times (Y.B. 25

Edw. III, fo. 85; Coke, Treatise on Bail & Mainprise;

Staunford P.C. 72a), it seems to have been allowable for

10a

felony.’ It could hardly be argued that the release of

Bourton on bail shows that if the facts were true he

would not have been guilty of felony, because that again

would be contrary to the record. I therefore do not really

understand the year book in this respect, and suspect it

may be a defective report.

“A pardon does not necessarily imply a legal doubt, at

this date. Pardons were sometimes granted for favour.

This case does look unusual however, because it appears

from the patent roll (Calendar Patent Rolls 1327-1330,

p. 118: Pat. 1 Edw. III, pt. 2, m.17) that Bourton was

included in the general pardon of 29 May 1327 but with

the special proviso that, unlike the other persons par-

doned with him, he was to be excused from serving

against the Scots. (The others were apparently ordinary

felons conscripted into the army.)

“The pardon is not to be found in the roll for Hil. 1

Edw. III, which is defective.”

Mr. Rafferty’s comments on Rex v. de Bourton in an unpub-

lished manuscript made available to me in 1989 and 1991

“(A] person, who would continue to maintain that

Bourton’s case stands for the proposition that the fetal

victims described in the Bourton indictment are not po-

tential victims of common law criminal homicide, must

implicitly adopt each of the following three premises:

1) the three foregoing Bourton ‘felonly’ plea roll entries

represent defective entries. 2) The Bowrton justices did

not understand then existing English laws and customs

on bail in felony cases. 3) The Bourton justices did not

then understand the then existing common law on crimi-

nal homicide. . . . What is more, such a person would

* The Statute of Westminster I (3 Edw. I, c. 15, 1275) provides

that one indicted for homicide is not mainpernable or replevisable

except when he is indicted on “light suspicion”. Although Dr. Baker

does not advert to “light suspicion”, this might explain the apparent

confusion in the Year Book reports of the case.

SF A TS oh a

lla

also have to ‘invent’ a 14th century common law legal

procedure through which a defendant at a ‘post-arraign-

ment,’ pretrial hearing could bring a facial challenge to

a felony indictment. This is so, because so far as is

known, no such procedural tool existed at the 14th cen-

tury common law. It simply cannot be overlooked that

Bourton did not demur to the felony indictment. He pled

not guilty to it.”

12a

APPENDIX C?

OTHER REPRESENTATIVE ENGLISH LEGAL

MATERIALS RELATING TO ABORTION

Agnes’s Appeal

1200, 1 Selden Soc’y 39 (no. 82, 1887)

Lincolnshire. Agnes, the daughter of Saxi, appeals John

of Paris that whereas she was in labor, he came to her

house and dragged her out by the feet and struck her with

a certain pole in such a way that she lost her child. And

the citizens of Lincoln came and showed a charter of the

lord king which witnesses that they should not be im-

pleaded outside the walls of Lincoln (except for their

moneyers and officials), and that they ought not to make

battle concerning any appeal but to deraign themselves ’*

according to the liberties and laws of the city oi London; *

and they prayed this liberty. A day is given to them

before the lord king wheresoever he should then be in

England on the morrow of St. Edmund to hear their

judgment.‘

Amice’s Appeal

JUST 1/274, m.14d (1247)

Amice, who was the wife of Ralph Gundwine, appeals

Adam Warner, William Warner and Henry Warner that

1 For the cases before 1600, I have used original translations by

Dr. J.H. Baker (see Appendix B n.1) in order to achieve a consistent

usage and reliable English texts. Dr. Baker provided his trans-

lations to Philip Rafferty of Los Angeles. I have preserved original

spellings and grammer in the sources originally in English. All

footnotes are mine.

2 J.e., to vindicate themselves or to prove their innocence.

3 ].e., trial by wager or law—through oath-helpers.

4 The outcome has not been found.

13a

they came to the house of her the said Amice and broke

her house, and took her the said Amice and beat her

severely so that, by reason of that beating, she the said

Amice low: her child which was in her belly. And that

they did this to her wickedly and feloniously against the

peace etc., she offers etc.

And the aforesaid Adam and others come and deny the

[breach of the peace], the beating, and the whole etc. and

put themselves upon a jury of the township. And they

offer the lord king 50 pounds for having the jury therein,

by pledge of [12 names].

And the jurors say upon their oath that in truth the

aforesaid Adam and others beat the aforesaid Amice; but

they say that she immediately went off, and walked about

hither and thither, and afterwards when eight days had

elapsed she aborted a certain child having the form of a

male five inches long; but they believe that this was

rather due to the labor and foolish behavior® of the

selfsame Amice than to the aforesaid beating.

Juliana’s Appeal

12567, Somerset Pleas (Civ. & Crim.) from the Rolls of the

Itinerant Justices 321 (mo. 1243) (C. Chadwyck-Healy ed.

1897)

John de Rechich beat one Juliana, daughter of May-

nard, so that he killed her boy in her womb, and fled.

Therefore let him be exacted and outlawed. He was

received at Stoke Curcy. Therefore [that township] is

in mercy. The jurors concealed that matter; therefore

they are in mercy. He had no chattels.

5 stultum gestum

*J.e., to be amerced: to pay a fine in lieu of more serious

punishment.

l4a

Rex v. Code

Eyre of Hampshire, 1281, JUST 1/789, m.1*

... Alice, the wife of Adam Prest, coming from the city

of Winchester out of the vill of Upham, met Walter Code,

Richard the Potter, and Stephen his brother, and Herbert

the Carpenter, who knocked her over and beat her and

would have lain with her by force, so that by the violence

which they committed against her she gave birth to a

certain abortive child as if* of the age of one month.

William de Stratton, the coroner, did not come; therefore

to judgment of him. Afterwards the aforesaid Walter

and the others come and deny the death, the felony, and

all. . . and thereof they put themselves upon the country.

And twelve jurors say upon their oath that the aforesaid

Walter, Richard, and Stephen with force knocked over

and beat the aforesaid Alice, as a result of which she

gave birth to a certain abortive child of such an age

that it was unknown whether it was male or female;

which child was eight inches long. And they say that the

aforesaid Herbert is not guilty thereof. Therefore let him

be quit thereof. And the aforesaid Walter, Richard, and

Stephen are committed to prison.

Rex v. Mercer

Eyre of Oxford, 1285, JUST 1/710, m.45

Emma, the wife of Reynold the Mercer, and Alice, the

daughter of Thomas of Northleigh, being pregnant, were

fighting together in the field of Northleigh in such a way

that the aforesaid Emma struck with a certain stone on

the side, by which blow the same Alice on the second day

following gave birth to a certain living male child having

™The manuscript is badly worn; the italicized words have been

suplied by inferences from the parts of the manuscript which

survive.

8 quasi

———

ed ot orate lee Lek ie LE ON el et ie ce ee! giles etn ATS OS ee OT

fiat tO ee

—————

l5a

on its head a wound from the blow of the same stone;

which child died immediately after it was baptized. And

the jurors say upon their oath that the aforesaid Alice

gave birth one month before the time of birth,® and that

the child died from the aforesaid blow, in respect of which

they suspect her of wrong. Therefore, let her be outlawed

and waived.

Rex v. Haule

Eyre of London, 1321, JUST 1/547A, m.20d

In the twelfth year of the aforesaid reign of King

Edward, John of Gisors being coroner, Stephen of Corn-

hill and Robert de Rokesle then being sheriffs, a certain

Maud de Haule’ and Agnes the Convert " were fighting

together in this ward, and a certain Joan of Hallyng-

hurst came along and separated them from each other,

by reason of which the aforesaid Maud threw the afore-

said Joan out of the house where she dwelt and she fell

on the step of a solar of the same house so that on the

fourth day following she gave birth to a certain child of

the female sex ten weeks before the due time,” which the

same child died immediately after birth. And the afore-

said Maud was taken immediately after the deed and led

to Newgate prison in the time of the aforesaid sheriffs.

Therefore [let them answer for what happened]. And

Robert Gobba, John Braaz, and Richard atte Vyngne, three

neighbors, did not come; but they are not suspected of

wrong. The aforesaid Robert was attached by Walter le

Ken; therefore [he is] in mercy. The other mainpernor

has died. The aforesaid John was attached by Hugh

Trigge and John de Haleford; therefore [they are] in

mercy. The aforesaid Richard was attached by John

® tempus pariendi

10 The name could also be read as “Hanle”.

11 Agnes le Converse

12 per decem septimasna ante tempus pariendi

18 Translation uncertain.

16a

Bardewyne and John le Kent; therefore [they are] in

mercy. Afterwards William le Leyre and Henry atte

More, tenants of part of the lands which were held of

the aforesaid sheriffs, come and fully admit that the

aforesaid Maud de Haule was in the aforesaid prison in

the time of the aforesaid sheriffs, and they say that the

aforesaid Maud was hanged before Hamon Hauteyn and

his fellows, justices assigned to deliver the gaol aforesaid

etc. And that appears from the rolls of the same Hamon

ete. She had no chattels etc.

Rex v. Anonymous (a.k.a. the Abortionist’s Case)

K.B., 1348, Fitzherbert, Graunde Abridgement, tit. Corone,

f. 268, pl. 263 (Ist ed. 1516)"

One was indicted for that he killed a child in its mother‘s

belly, and the opinion [was] that he shall not be ar-

raigned on this since no name of baptism was in the in-

dictment, and also it is hard to know whether he killed

it or not ete.

Selected Readings on the Law of Murder *

Excerpts from John Baldwin’s Reading, Grays Inn, c. 1455/60

[Statute of Marlborough, ¢.25] Before the making of

this statute, the word murdrum implied felony, namely

man-slaying, which was so henious that the penalty was

death, in whatever manner the slaying was done. Thus,

even if the intention of the person who killed the man was

not to slay him, but it was by misfortune, nevertheless it

would have been adjudged murder, which was a felony

for which he would have been put to death . . . because

14 Dr. Boaker, in a letter to Philip Rafferty (Dec. 12, 1985), indi-

cated that the case does not appear in the various Year Books for

1348, and cannot be traced back before Statham’s Abridgment

(ce. 1490, f. 58, pl. 91), which is reproduced in Fitzherbert’s Abridge-

ment.

15 Unpublished; found and translated from Law French by J.H.

Baker.

17a

it tended to the improverishment of the realm. Now,

however, by this statute it is laid down that it shall not

be deemed murder where it may be adjudged to be by

misfortune ... There may be murder and yet no felony—

as where a piece of timber falls on a man, or a horse

kills a man—but the cause of his death shall be forfeited

to the king as deodand. ... There may be murder even

where a man does not lay his hands upon or strike any-

one, and it is felony: for instance, if a man poisons an-

other, or makes a trap whereby the other dies. And it

is a good indictment to say “that he feloniously slew”

even though he did not lay his hands [on the deceased]

. . » It is a good indictment before the coroner, if the

person killed is unknown, to say “that he slew (or felon-

iously murdered) someone unknown’; that is adjudged.

Also “feloniously slew a certain unbaptised person”; for

that he shall be put to death. It is otherwise if a man

strikes a pregnant woman, and she is delivered of one

who is dead; there is not felony, because it cannot be

known whether it was by the striking or some other cause,

because it was not that time in being, and therefore it

cannot be tried.

Excerpts from Thomas Pygot’s Reading, Grays Inn, 1510

[Statute of Marlborough, ¢.25.] ... There is a dis-

tinction between murder and manslaughter; for murder

is where a man kills another upon malice aforethought

(as, by lying in wait for him), and manslaughter is

where people who are not friends meet suddenly, or a

sudden dispute arises between friends, and one kills the

other: that is manslaughter. But for either of them

[the offender] shall die. Therefore it is now to be seen

for what murder and manslaughter a man shall die, at

common law and at the present day. The statute says,

“where it is solely by misfortune”, and therefore if mur-

der is mixed with malice or negligence he shall die. . . .

[If] a physician or surgeon gives contrary medicine, so

that the sick person dies, it is felony, just as if it had

18a

been poison. (But this must be understood where it is

done animo felonico; otherwise not. So the circum-

stances in which he is killed by negligence may be en-

quired into.) ... Killing an enemy alien who does not

have a safe-conduct shall not be felony. ... Also I may

be indicted for killing someone unknown, because he might

have been disfigured by me or have come from a distant

Rex v. Lichefeld

K.B. 27/974, Rex. m.4 (1505)

Nottinghamshire. Heretofore, namely on the vigil of

the Epiphany of [our] Lord in the nineteenth year of

the reign of the present lord king [Jan. 5, 1504], at

Basford in the aforesaid county, before Richard Parker

one of the said lord king’s coroners in the aforesaid

county upon the view of the body of Jane Wynspere of

Basford aforesaid, it was presented by the oath of twelve

jurors that the said Jane Wynspere of Basford in the

county of Nottingham, single woman, being pregnant,’°

on the twelfth day of December in the year above men-

tioned [1503] at Basford aforesaid, being inspired by

the devil drank various bad" and [pure] ™ potions in

order to kill and destroy the child in her body,’® and took

them into her body, as result of which the said Jane

then and there died, and thus the same Jane in manner

and form aforesaid feloniously and as a felo de se slew

and poisoned herself and the child in her body; and that

Thomas Lichefeld of Basford in the county aforesaid,

cleric, knowing that the said Jane had committed said

16 puerpera: perhaps “in labor”.

17 corupta

18 immaculata, which Dr. Baker suggests here should be translated

as “polluted” although it means the opposite; perhaps, the in- refers

here refers to putting something in the potion rather than to

negative -maculata.

19 infantem in corpore suo

Pe ee ee ee ee ee ee ee ee ee 2S

eam + -

.—

19a

felony in form aforesaid, then and there feloniously

harbored the said Jane... .

On the Thursday after the quindent of Hilary [Jan. 30,

1505], Lichefeld comes in custody and demurs to the

indictment on the ground that the principal is dead and

that he cannot answer without her. The court adjudges

that he is discharged sine die.*°

Rex v. Wodlake

Indictment, K.B. 9/513/m.23 (1530)

Middlesex. The jurors present that William Wodlake

of the parish of St. Clement Danes in the county of

Middlesex, net-maker, on the twentieth day of May in

the seventh year of the reign of Henry VIII [1525], with

force and arms (namely knives etc.) at the aforesaid

parish of St. Clement, assaulted Katherine Alaund, then

a girl of fourteen years of age, and then and there vio-

lently and against her will feloniously raped her and

carnally knew her, against the peace of the lord king etc.

Middlesex. The jurors present that William Wodlake

of the parish of St. Clement Danes in the count of Mid-

dlesex, net-maker, on the tenth day of November in the

eighteenth year of the reign of King Henry VIII [1526],

by the instigation of the devil, knowing that a certain

Katherine Alaund was pregnant with a child,’ with

dissembling words gave the same Katherine to drink a

certain drink in order to destroy the child then being

in the said Katherine’s body,” and desired and caused

her the said Katherine to drink the selfsame drink, by

reason of which drink the same Katherine was afterwards

delivered of that child dead: so that the same William

20 Note that the lack of the allegation “contra pacem” in the in-

dictment would also have been sufficient grounds for a demurer.

21 cum puero esse pregnatum [sic]

22 dictum puerum in corpors dicte Katerine existentum

20a

Wodlake feloniously killed and murdered the child with

the drink in manner and form aforesaid, against the

peace of the lord king etc.

The Endorsement of the Indictments after Mandamus for

Removal to the King’s Bench, K.B. 9/513/m.23d (1530)

TRUE BILL taken at St. John’s Street in the county

of Middlesex before Sir John More, knight, Robert

Wroth, Robert Cheseman, John Brown, Richard Hawkes,

and John Palmer, keepers of the peace of the lord king

and the same king’s justices assigned to hear and deter-

mine various felonies, tresspasses, and misdeeds in the

county of Middlesex, on the Thursday next after the feast

of the Conception of the Blessed Virgin Mary in the

twenty-first year of the reign of King Henry VIII [Dec.

9, 1529], by the oath etc. of . . . jurors*™ delivered before

the lord king on the Saturday next after the quindene

of St. John this same term [July 9, 1530], by the hand

of the aforesaid John More, one of the aforesaid justices,

in order to be determined.

[Sewn to the bill, in the King’s Bench file, is a writ

dated April 29, 1530, ordering the justices of the peace

for Middlesex to send all indictments concerning William

Wodlake for appearance “before the king’, i.e., before

the King’s Bench. The writ, tested by Chief Justice Fitz-

James, is endorsed by Sir John More that all indictments

concerning Wodlake have been sent according to the tenor

of the writ. ]

In the Controllment Roll of the Clerk of the Court, K.B.

29/162/m.11d (1531)

Middlesex. William Wodlake (dead) of the parish of

St. Clement Danes in the county aforesame, net-maker, is

to be taken [and brought here] in the octave of Michael-

mas [to answer] for various felonies, murders, and mis-

demeanors of which he is indicted .... Afterwards, in

28 Refers to the grand jury.

2la

Hilary term 22 Henry VIII [1531] he is to be taken

{and brought here] in the quindene of Easter: at which

day he is dead. Therefore let the process against him

here totally cease.

Cockaine v. Witnam

Hil., 19 Eliz. 1 (1577) Action for Slander

Version 1: Brit. Lib., Ms. Landsdowne 1067, fo. 97

“The Lady Cockeyn [sic] offered A.B. her maid a

drink in order to murder her child, because her butler

had gotten it.” And although this was not murder, for

the infant was en ventre sa mere, the action nevertheless

lay.

Version 2: Cro. Eliz. 49, pl.4 (1586)

Action for words. At the Nisi Prius the defendant

pleaded concord pius le darraine continuance, judgment

si al enquest, etc. And by all the justices it was no plea,

but he ought to conclude, judgment si actio, ete., and so

in all pleas pleaded since the last continuance.

Then it was moved, if judgment shall be given upon

this, or a new Nisi Prius be granted; and upon good

advice judgment was given for the plaintiff, for it was a

confession of the matter in issue.

The words were “My Lady Cockaine did offer two

shillings to a woman with child, to get her a drink to

kill her child, because it was gotten by J.S., Sir Thomas

Cockaine’s butler.” And it was moved the action did

not lie for these words; but it was adjudged for the

plaintiff, for by them the lady’s credit is impaired; and,

if true, there was cause to bind her to good behaviour,

although it was not said she did give money, or any

hurt was done, but that she offered etc. This case was

adjudged Hill. 19 Eliz. Intratur, Mich. 17 & 17 Eliz.

Rot. 183. Ex relatione Chamberlaine. Vide 4 Co. 16.b.

22a

Version 3: Harv. L.S. Lib. Ms. 1180(1), fo. 387

For this he vouched a case in Michaelmas 17 & 18

Eliz., roll 483, between Sir John Cockin [sic] and his

wife and one Wyman [sic], because Wyman spoke these

words, “My Lady Cockin did offer one Bash 10 pounds

to get her a drink to destroy the child she went withall,

because Mr. Cockin’s butler had begotten it”; and it was

ruled that an action lay, and yet he did not say that a

drink was got, but only an offer to get .. . .

Regina v. Turnour

Assize 35/23/29 (Essex 1581)™*

Essex: The jurors for [our] lady the queen present

that Jane Turnour of Stisted in the aforesaid county,

spinster, being a common witch and enchantress, not

having God before her eyes, but being seduced by the

instigation of the devil, on the eight day of January in

the twenty-second year of the reign of the Lady Eliza-

beth [1580], Queen of England, France and Ireland, de-

fender of the faith, devilishly and maliciously at Sisted

aforesaid, on various days and occasions both before and

since, maliciously and devilishly bewitched and enchanted

a certain Helen Sparrowe, wife of John Sparrowe, in the

body of the same Helen, being then great with a certain

living child,” by reason whereof not only was the same

Helen then and there on various occasions gravely vexed

in her body horribly troubled, to the greatest danger of

her life, but also the aforesaid child (of which the same

Helen was then and there great) then and there came to

death. And thus the aforesaid jurors say upon their

oath that the aforesaid Jane Turnour, in manner and

form aforesaid, on the day and in the year aforesaid, at

2% Two accompanying indictments charged Turnour with having

used witchcraft to endanger the lives of an adult woman and a child

of seven years.

2 infantum vivo

23a

Stisted aforesaid, maliciously and devilishly bewitched

and enchanted the aforesaid Helen Sparrowe, and de-

prived the living child (of which the aforesaid Helen

was then pregnant) of his life by reason of these en-

chantments and bewitchings, contrary to the form of the

statute made and provided for such cases, and to the

bad and pernicious example of all other offending in such

cases, and against the peace of the said present lady the

queen. [Note by the clerk:] Puts herself on the coun-

try; * guilty judgment. :

Entry in the Gaol Delivery Roll of the Essex Summer Ses-

sions and General Gaol Delivery Held at Braintree, July 17,

1581, from C. Ewen, Witch Hunting and Witch Trials: The

Indictments for Witchcraft from the Records of 1373 Assizes

Held for the Home Circuit A.D. 1559-1736 143 (London, 1929)

Joan ** Turnour: Convicted at the last assizes for witch-

craft and reprieved * for one year.

Entry in the Essex Lenten Sessions and General Gaol De-

livery Held at Chelmsford, March 22, 1582, from C. Ewen,

supra, at 146

Joan Turnour: Sentenced for witchcraft and re-

prieved * for one year.

Regina v. Sims

75 Eng. Rep. 1075 (Q.B. 1601)

Trespasse and assault was brought against one Sims by

the Husband and the Wife for beating-of the woman.

Coke [Attorney-General]: The case is such, as appears

by examination. A man beats a woman which is great

26 J e., accepts trial by jury.

27 Johana, meaning Jane or Joan.

28 rep’p, possibly meaning remanded.

2° rep. p., possibly meaning remanded.

24a

with child, and after the child is born living, but hath

signes, bruises in his body, received by said batterie, and

after dyed thereof, I say that this is murder.

Fenner & Popham (J.J.), absentibus caeteris, clearly of

the same opinion, and the difference is where the child is

born dead, and where it is born living, for it be dead born

it is no murder, for non constat * whether the child were

living at the time of the batterie or not, or if the batterie

was the cause of the death, but when it is born living, and

the wounds appear in his body, and then he dye, the

Batteror shall be arraigned of murder, for now it may be

proved whether these wounds were the cause of the death

or not, and for that if it be found, he shall be condemned.

Regina v. Webb

Queen’s Bench, 1602, Calendar of Assize Rec., Surrey Indict-

ments, Eliz. 1 at 512 (no. 3146) (J. Cockburn ed. 1980)

Surrey. The jurors for our Lady of the Queen present,

that Margaret Webb, lately of Godalmyn, spinster, on the

tenth day of August, in the forty-first year of the reign

of our Lady Elizabeth [1599] by the grace of God Queen

of England, France and Ireland, and defender of the faith,

with force and arms, and at the aforesaid Godalmyn in

the aforesaid county, not having the fear of God before

her eyes, but moved and seduced by the instigation of the

devil, once ate the poison calied “ratsbane” with the in-

tention of spoiling and destroying the infant in the womb

of Margaret herself and thus the aforesaid Margaret, by

reason of eating the aforesaid poison, spoiled and destroyed

then and there the infant in her womb, as a pernicious

example to all malefactors offending in like manner,

against the peace of our Lady Queen, her crown and

dignity.

*» It cannot be proved.

25a

Sir Edward Coke, Third Institute 50-51 (1644)

If a woman be quick with childe, and by a Potion or

otherwise killeth it in her wombe; or if a man beat her,

whereby the childe dieth in her body, and she is delivered

of a dead childe, this is a great misprision, and no murder;

but if the childe be born alive, and dieth of the Potion,

battery, or other cause, this is murder: for in law it is

accounted a reasonable creature, in rerum natura, when

it was born alive. And the Book in 1 E. 3 was never

holden for law. And 3 Ass. p.2 is but a repitition of that

ease. And so horrible an offence should not go unpunished.

And so was the law holden in Bractons time, Si aliquis

qui mulierem praegnanem percusserit, vel ei venenum

dederit, per quod fecerit abortivum, si puerperium jam

formatum fuerit; & maxime si fuerit animatum, facit

homicidium. And herewith agreeth Fleta: and herein the

law is grounded upon the law of God, which saith, Qui-

cumque effuderit humanum sanguinem, fundetur sanguis

illius, ad imaginem quippe Dei creatus est homo. If a

man counsel] a woman to kill the childe within her wombe,

when it shall be born, and after she is delivered of the

childe, she killeth it; the counsellor is an accessory to the

murder, and yet at the time of the commandement, or

counsell, no murder could be committed of the childe in

utero matris: the reason of which case proveth well the

other case.

Rex v. Anonymous

Bury Assizes, 1670, 1 M. Hale, History of the Pleas of the

Crown 429-30 (London 1736)

But if a woman be with child, and any gives her a

potion to destroy the child within her, and she takes it,

and it works so strongly, that it kills her, this is murder,

for it-was not given to cure her of a disease, but unlaw-

fully to destroy the child within her, and therefore he,

that gives a potion to this end, must take the hazard, and

if it kills the mother, it is murder, and so ruled before me

at the assizes at Bury in the year 1670.

26a

Sir Matthew Hale, History of the Pleas of the Crown 428-30,

433 (London 1736)

These opinions therefore may serve to caution ignorant

people not to be too busy in this kind of tampering with

physic, but are no safe rule for a judge or jury to go by:

we see the statute of 34 & 35 H. 8 cap. 8 dispenseth

with the penalty of those former statutes, as to outward

applications and medicines for agues, stoen, strangury,

which may be administered by any person, and the pre-

amble of the statute tells us, that if none but licensed

chirurgeons should be used in many cases, many of the

king’s subjects were like to perish for want of help.

(Here, Hale reported his Rex v. Anonymous, supra at

B-22.]

And certainly if that opinion should obtain, that if

one not licensed a physician should be guilty of felony,

if his patient miscarry, we should have many of the poorer

sort of people, especially remote from London, die for

want of help, lest their intended helpers might miscarry.

This doctrine, therefore, that if any dies under the

hand of an unlicensed physician, it is a felony, is apoc-

hyphal, and fitted, I fear, to gratify and flatter doctors

and licentiates in physic, tho it may, as I said, have its

use to make people cautious and wary, how they take upon

themselves two much in this dangerous employment.

If a woman be quick or great with child, if she takes,

or another gives her any potion to make an abortion, or if

a man strike her, whereby the child within her is kild,

it is not murder nor manslaughter by the law of England,

because it is not yet in rerum natura, tho it be a great

crime, and by the judicial law of Moses was punishable

with death, nor can it legally be made known whether it

were kild or not, 22 E. 3 Coron. 263. so it is, if after

such child were born alive, and baptized, and after die

27a

of the stroke given to the mother this is homicide. 1 E. 8.

23. b. Coron. 146.

But if a man procure a woman with child to destroy

her infant, when born, and the child is born, and the

woman in pursuance of that procurement kill the infant,

this is murder in ‘the mother, and the procurer is acces-

sary to murder, if absent, and this, whether the child

were baptized or not. 7 Co. Rep. 9 Dyer 186.

Rex v. Beare

(Derby, England, Aug. 15, 1732)

2 The Gentleman’s Magazine 931 (Aug. 1732)

ELEANOR MERRIMAN, now the Wife of Ebenezer

Beare, indicted for a Misdemeanor, in endeavouring to

persuade Nich. Wilson to poison his Wife, and for giving

him Poison to that End.

Indicted a second time by the Name of Eleanor Beare,

for a Misdemeanor, in destroying the Foetus in the Womb

of Grace Belfort, by putting an iron Instrument up into

her Body, and thereby causing her to miscarry.

Indicted a third time, for destroying the Foetus in the

Womb of a certain Woman, to the jury unknown, by

putting an Iron Instrument up her Body, or by giving

her something to make her miscarry. Pleaded Not Guilty.

To the Second Indictment

COUNSEL [FOR THE KING]: Gentlemen, you have

heard the Indictment read, and may observe, that the

Misdemeanor for which the Prisoner stands indicted, is of

a most shocking Nature; to destroy the Fruit in the Womb

carries something in it so contrary to the natural Tender-

ness of the Female Sex, that I am amazed how ever any

Woman should arrive at such a degree of Impiety and

Cruelty, as to attempt it in such a manner as the prisoner

28a

has done, it has really something so shocking in it, that I

cannot well display the Nature of the Crime to you, but

must leave it to the Evidence: It is cruel and barbarous

to the last degree.

Call Grace Belfort.

GRACE BELFORD [sic]: I lived with the PriSoner

as a Servant about ten Days, but was not hired, and I

was off and on with her about fourteen Weeks: When I

had been with her a few Days there came Company into

the House, and made me drink Ale and Brandy (which

I was not used to drink) and it overcame me; my Mistress

sent me unto the Stable to give Hay to some Horses, but

I was not capable of doing it, so [I] laid me down in the

Stable; and there came to me one Ch——r, a young Man

that was drinking in the House, and after some Time I

feared I was with Child by Ch——+r; upon that, my Mis-

tress asked me if I was with Child, I told her I thought I

was; Then she said if I could get 30 shilling from

Ch r, she would clear me from the Child, without

giving me Physik. A little Time after, some Company

gave me Cyder and Brandy, my Mistress and I were both

full of Liquor, and when the Company was gone, we could

scarce get up the Stairs, but we did get up; then I laid

me on the Bed, and my Mistress brought a kind of an

Instrument, I took it to be like an Iron Skewer, and she

put it up into my Body a great Way, and hurt me.

COURT: What followed upon that?

EVIDENCE: Some Blood came from me.

COURT: Did you miscarry after that?

EVIDENCE: The next day after I went to Allesiree,

where I had a Miscarriage.

COURT: What did the Prisoner do after that?

EVIDENCE: She told me the Job was done. I then

lodged two or three Nights with one Ann Moseley (now

Ann Oldknowles) and coming one Morning to see the

Prisoner, I called for a Mug of Ale and drank it, and

told her I was going home; then came in John Clark,

29a

and on the Prisoner’s saying I was going home, he said

he would give me a Glass of Wine to help me forward,

which accordingly he did, out of a Bottle he had in his

Pocket, then I took my leave of him; and when I was a

little Way out of Town, I fell down at a Style, and was

not well, I lay a little while, then go up, and went to

Nottingham that night.

Call Ann Oldknowles.

COURT: Do you know any Thing of Grace Belford

having a Miscarriage?

EVIDENCE: I know nothing, but that when she lay

with me, I saw all the Symptoms of Miscarriage on the

Bed where she lay.

Call John Clark.

COURT: Do you know the Prisoner?

EVIDENCE: Yes, I have frequented her House.

COURT: Did you ever hear her say anything that

she had used Means to make a Woman with Child mis-

carry, by putting any kind of Instrument up their Bodies,

or by giving them any Thing to take inwardly?

EVIDENCE: Yes, I have.—

COURT: Have you seen her Instrument for that Pur-

pose, or have you seen her use any Means to make any

Woman with Child misearry?

CLARK: No, but I have heard her say she had done

it, and that she then had under her one Hannah

whose other Name I know not.

COURT: Have you heard her say she had been sent

for for these wicked Practices, or had any Reward for

causing any one to miscarry?

CLARK: I heard her say she had been once sent for

to Nottingham, and, as I remember, she said she had

five Pounds for the Journey.

PRISONER: Did you not say you never heard me

Say any thing of using any Means to cause Miscarriage

in any Person, or saw me use any Means for that End?

’

30a

CLARK: No, I said I never saw you do any thing

that Way, but had heard you say you had done it. Would

you have me forswear myself?

PRISONER: No, but I would have you speak the

Truth.

CLARK: Ido.

Then the Prisoner called several Persons to speak in

her Behalf, but only two appeared, and they only gave

her Friends a reputable Character, and said the prisoner

had a good Education, but they knew nothing of the

latter Part of her Life.

MR. MAYOR: The Prisoner at the Bar has a very

bad Character, and I have had frequent Complaints

against her for keeping a disorderly House.

Many evidences were ready in Court to have proved

the Facts she stood charged with in the third Indict-

ment; but his Lordship observing that the second Indict-

ment wes proved so plainly, he thought there was no

Necessity for going upon the third.

His Lordship summed up the Evidence in a very mov-

ing Speech to the jury, wherein he said, he never met

with a Case so barbarous and unnatural. The Jury, after

a short Consultation, brought the Prisoner in Guilty of

both Indictments, and she received sentence to stand in

the Pillory, the two next Market-Days, and to suffer close

Imprisonment for Three Years.

Derby, August 18, 1732. This day Eleanor Beare, pur-

‘suant to her Sentence, stood for the first Time in the

Pillory in the Market place; to which Place she was

attended by several of the Sheriff’s Officers; notwith-

standing which, the Populace, to show their Resentment

of the horrible Crimes wherewith she had been charged,

and the little Remorse she has shown since her Commit-

ments, gave her no Quarter, but threw such quantities

of Eggs, Turnips, ete. that it was thought she would

hardly have escaped with her Life: she disengaged herself

from the Pillory before the Time of her standing was

expired, jumped among the Crowd, whence she was with

Difficulty carried back to Prison.

8la

Rex v. Tinkler

King’s Bench, 1781

Report in the Newcastle Chronicle, Nov. 24, 1781, at 2

Tuesday last Margaret Tinkler, midwife, was executed

near Durham, for a-crime in acting or recommending

certain means to destroy an infant, which was effected ;

and finally with the death of the mother. Before she left

the jail for execution, she confessed to a worthy clergy-

man, and Mr. Smith, surgeon in Newcastle, then present,

that she only recommended the means, but that the act

itself was done by the deceased woman... [Her plea of

pregnancy failed. ]

The Published Report, 1 E. East, A Treatise of the Pleas of

the Crown 354-356 (1803)**

Margaret Tinkler was indicted for the murder of Jane

Parkinson, by inserting pieces of wood into her womb.

A second count charged her as accessary before the fact.

It was proved by several witnesses, that from the first

time of the deceased taking to her bed, which was on the

12th of July, she thought that she must die, making

use of different expresses, as, that she was going; that

she was working out her last; and exclaiming, Oh! that

Peggy Tinkler has killed me. She lingered till the 23d,

when she died. She never was up but once during that

time, when on telling a friend who attended her that she

thought herself better, she advised her to get up, which

the deceased did, and walked as far as the passage going

out of the room, but was forced to return and go to bed _

again. It appeared by the testimony of several witnesses,

that from the moment of her taking to her bed till the

time of her death she had declared, that Tinkler had killed

her and dear child, (stating the particular means used,

which agreed with the charge in the indictment.) And

%! This report, which is the one by which the case is generally

—— has been verified by Dr. Baker against the original records

° case.

82a

during the same period she had declared more particu-

larly, “that she was with child by one P. a married man,

who, being fearful lest his wife should hear of it if she

were brought to bed, advised her to go to the prisoner,

a midwife, to take her advice how she should get rid of

the child, being then five or six months gone.” “That the

prisoner gave her the advice” in question, which she fol-

lowed accordingly. It was proved by the testimony of a

witness, that three days before the delivery, which was

on the 10th of July, she saw the deceased in the prison-

er’s bed-chamber, when the prisoner took her round the

waist and shock her in a very violent manner six differ-

ent times, and tossed her up and down: and that she

afterwards delivered at the prisoner’s house. The de-

ceased also declared during her illness, that after her

delivery the prisoner gave her the child to take home;

and bid her to go to bed that night and sleep, and get

up in the morning and go about her business, and nobody

would know anything of the matter; but that appearing

very ill the next day at a relation’s house, they had or-

dered her to go home and go to bed, which she did. The

child was born alive, but died instantly; and the sur-

geons, who were examined, proved that it was perfect.

There was no doubt but that the deceased had died by the

acceleration of the birth of the child: and upon opening

her womb it appeared that there were two holes caused

by the skewers, one of which was mortified, and the other

only enflamed; and other symptoms of injury appeared.

A short time before her death she was asked whether the

account she had from time to time given of the occasion

of her death, and the prisoner’s treatment of her were

true; and she declared it was. It was objected that the

above evidence of the deceased’s declarations ought not to

be admitted, as she herself was particeps criminis, and

likewise as it appeared at the time of her declarations she

was better, or thought herself so. But Nares J. was of

opinion, that however this objection might hold with re-

spect to the second count, in which the prisoner was

charged as an accessory to the deceased, yet the deceased

—

en rs

33a

was not willingly or knowingly an accessory to her own

death; and therefore it was like the common case of any

other murder. And as to the objection that she once

thought herself better, and tried to get up, yet the same

declarations she then made had been made repeatedly be-

fore to persons whom in confidence she told that she never

should survive, when she first took to her bed; and she

had repeated the same declarations the day before she

died, and within a few hours of her death. And as to

the fact itself, he was clearly of opinion it was murder

on the authority of Lord Hale. The jury found the pris-

oner guilty on the first count, charging her as a principal

in the murder, and execution being respited to take the

opinion of the judges on the whole case, they all met to

consider of it: and were unanimously of opinion that

these declarations of the deceased were legal evidence: for

though at one time the deceasd thought herself better, yet

the declarations before and after and home to her death

were uniform and to the same effect. And as to her being

particeps criminis, they answered, that if two persons

be guilty of murder, and one be indicted and the other

not, the party not indicted is a witness for the crown.

And though the practice be not to convict on such proof

uncorroborated, yet the evidence is admissible; and here

it was supported by the proof of the prisoner tossing the

deceased in her arms in the manner stated. Most of the

judges indeed held that the declarations of the deceased

were alone sufficient evidence to convict the prisoner ;

for they were not to be considered in the light of evidence

coming from a particeps criminis; as she considered her-

self to be dying at the times, and had no view or intent

to serve in excusing herself, or fixing the charge unjustly

on others. But others of the judges thought that her dec-

larations were to be so considered; and therefore required

the aid of confirmatory evidence.

84a

APPENDIX D

REPRESENTATIVE EARLY AMERICAN LEGAL

MATERIALS RELATING TO ABORTION

Proprietary v. Mitchell

10 Md. Arch. 171-186 (1652)

[The following record of the trial is found at 10 Md.

Arch. 182-185; the first part of the report includes ex-

tensive depositions as evidence against Captain Mitchell

used to prepare the charges, including statements that

he had administered a “Phisick” to Susan Warren to

induce the abortion of their child.}

The Court this day took into Consideration a Peticon

exhibited by Capt. William Mitchell who intended (as it

Seems) to have preferred the Same to the Assembly had

it gone on; The Peticon being as followeth vizt. :

To the Honble the Assembly for regulateing the affairs

of the Province of Maryland:

The humble Peticon of Capt. Wm. Mitchell Humbling

Shewing That your Peticoner was on Saturday last

comitted prisoner to the Common Gaol upon a Warrant

Signed by Robert Brooke Esq., In which your Peticoner

Stands charged in general words with Murther, Atheisme,

and Blasphemy, Crimes never in the least acted or within

the Intention of your Peticoner. Your Peticoner there-

fore humbly prays he may be Speedily called to his

Answer, and have his liberty restored in Case noe crime

in Law be proved against him that warrants his Im-

prisonment upon the warrant before menconed, And that

his Natural filing for which God hath pleased to affiict

and humble Peticoner, may not be pressed against

Peticoner in Cases wherein the Laws of England

Silent, And your Peticoner Shall ever pray.

[Signed] Wm. Mitchell

35a

Upon reading of which Peticon the Court gave direc-

tion for a Speedy tryall whereupon his Lordships At-

torney, Mr. Hatton, brought in his charge as followeth,

viz. :

May it please this Honble Court: It is fallen to my

Lott upon the alteracon in the Government ' as Attorney

to the Lord-Proprietary to be prosecutor against Capt.

William Mitchell now prisoner here upon Mr. Brookes

Warrant, I could have wished there been no Such occasion,

The Crimes for which I am to charge him being Soe

many and Soe heynous, that I have not known or heard

of the like, It troubles me the rather in regard the Lord

Baltemore hath been formerly Soe deceived in him as

to place him here in the Seat of Judicature, which by his

Seandolous course of life and gross haynous offences, he

hath extreamly abused, Whereas he ought (especially

Soe placed) to have given good example to others an to

imploy that Talent and those abilities of witt and under-

standing (which almighty God hath indeed in a large

measure bestowed on him) to his glory and the publick

good, But by Common experience it is apparent, that the

chiefest use he hath made thereof hath been to colour

over his Villanous Courses, and to mock and deride all

Religion and Civil Government, As the Court (in part)

take notice by the particulars of his Charge being as

followeth Vizt. :

The charge of the Lord Proprietary’s Attorney by way

of Indictment against Capt. William Mitchell in the name

of the Keepers of the Liberties of England by Authority

of Parliamt. ffirst: That by his expressions as well as

practice (as will as I conceive appear by proofe) he hath

not only professed himself to be an Atheist, but hath also

endeavoured to draw others to believe there is noe God,

Makeing a Common practice by blasphemous expressions

' [Editor's note} Probably a reference to the displacement of the

colony's Catholic government by its first Protestant government in

1652. Worldmark Encyclopedia of the States 242 (1981).

36a

and otherwise to mock and deride God’s Ordinances, and

all Religion, thereby to open a way to all wicked lustful]

licentious and Courses. Secondly: That he

hath Comitted Adultery with one Susan Warren. Thirdly

That he hath M endeavoured to or

* [Editor’s note) “True bill”—a good indictment.

37a

thought valid in Law. To the Second, third, and fourth:

Billa Vera.

After the bringing of which verdict the Court dis-

charged the Jurors and the day being far Spent and by

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