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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A33

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991

## Text

a
GG @W

Nos. 91-744 and 91-902

~..

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

ii
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

19

21

25

27

27

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

vi
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
Ee
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
I
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.
I
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
a
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: 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

12

10

13

13

xi

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

ee

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

xv

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
Eo
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-

2

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.

d

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 —

5

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).

6

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).

7

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.

8

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).

9

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).

10

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.

;

11

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.

12

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-

13

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

14

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).

15

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.

16

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

:

17

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.

18

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

19

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).

20

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.

3
i
?
i

21

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.

22

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].

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23

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

24

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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25

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).

26

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.

i
|

27

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).

28

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-

29

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).

30

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

31
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.

2a
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).

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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.

4a

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

5a

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.

6a

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

Ta

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

8a

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

9a

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,
bec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A33. Public record. Not legal advice.