Opinion of the Court
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.
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We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.[1]
- ↑ The exact meaning of “quickening” is subject to some debate. Compare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant simply a “live” child, and under the era’s outdated knowledge of embryology, a fetus was thought to become “quick” at around the sixth week of pregnancy), with Brief for American Historical Association et al. as Amici Curiae 6, n. 2 (“quick” and “quickening” consistently meant “the woman’s perception of fetal movement”). We need not wade into this debate. First, it suffices for present purposes to show that abortion was criminal by at least the 16th or 18th week of pregnancy. Second, as we will show, during the relevant period—i.e., the period surrounding the enactment of the Fourteenth Amendment—the quickening distinction was abandoned as States criminalized abortion at all stages of pregnancy. See infra, at 21–
articulate on paper” the argument that “a woman’s right to choose abortion was a fundamental individual freedom protected by the U. S. Constitution’s guarantee of personal liberty”).
