Opinion of the Court
a crime at all stages of pregnancy and authorized the imposition of severe punishment. See Lord Ellenborough’s Act, 43 Geo. 3, c. 58 (1803). One scholar has suggested that Parliament’s decision “may partly have been attributable to the medical man’s concern that fetal life should be protected by the law at all stages of gestation.” Keown 22.
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order).[1] By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.[2] See ibid. Of the nine States that had not yet
- ↑ See generally Dellapenna 315–319 (cataloging the development of the law in the States); E. Quay, Justifiable Abortion—Medical and Legal Foundations, 49 Geo. L. J. 395, 435–437, 447–520 (1961) (Quay) (same); J. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and The Fourteenth Amendment, 17 St. Mary’s L. J. 29, 34–36 (1985) (Witherspoon) (same).
- ↑ Some scholars assert that only 27 States prohibited abortion at all stages. See, e.g., Dellapenna 315; Witherspoon 34–35, and n. 15. Those scholars appear to have overlooked Rhode Island, which criminalized abortion at all stages in 1861. See Acts and Resolves R. I. 1861, ch. 371, §1, p. 133 (criminalizing the attempt to “procure the miscarriage” of “any pregnant woman” or “any woman supposed by such person to be pregnant,” without mention of quickening). The amicus brief for the American Historical Association asserts that only 26 States prohibited abortion at all stages, but that brief incorrectly excludes West Virginia and Nebraska from its count. Compare Brief for American Historical Association 27–28 (citing Quay), with Appendix A, infra.
of the Maine Medical Association 37–39 (1866); Report on Criminal Abortion, in 12 Transactions of the American Medical Association 75–77 (1859); W. Guy, Principles of Medical Forensics 133–134 (1845); J. Chitty, Practical Treatise on Medical Jurisprudence 438 (2d Am. ed. 1836); 1 T. Beck & J. Beck, Elements of Medical Jurisprudence 293 (5th ed. 1823); 2 T. Percival, The Works, Literary, Moral and Medical 430 (1807); see also Keown 38–39 (collecting English authorities).
