Opinion of the Court
(13th century treatise).[1]
Sir Edward Coke's 17th-century treatise likewise asserted that abortion of a quick child was "murder" if the "childe be born alive" and a "great misprision" if the "childe dieth in her body." 3 Institutes of the Laws of England 50–51 (1644). ("Misprision" referred to "some heynous offence under the degree of felony." Id., at 139.) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a "great crime" and a "great misprision." See M. Hale, Pleas of the Crown: Or, A Methodical Summary of the Principal Matters Relating to that Subject 53 (1673) (P. R. Glazebrook, ed., 1973); 1 M. Hale, History of Pleas of the Crown 433 (1736) (Hale). And writing near the time of the adoption of our Constitution, Blackstone explained that abortion of a "quick" child was "by the ancient law homicide or manslaughter" (citing Bracton), and at least "a very heinous misdemeanor" (citing Coke)." 1 Blackstone, Commentaries on the Laws of England *129–*130 (7th ed. 1775) (Blackstone).
English cases dating all the way back to the 13th century corroborate the treatises' statements that abortion was a crime. See generally J. Dellapenna, Dispelling the Myths of Abortion History 126 & n. 16, 134–142, 188–194 & nn.84–86 (2005) (Dellapenna); J. Keown, Abortion, Doctors, and the Law 3–12 (1988) (Keown). In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry."[2] For that crime and another "misdemeanor," Beare was sentenced to two days in the pillory and three years' imprisonment.[3]
- ↑ Even before Bracton's time, English law imposed punishment for the killing of a fetus. See Leges Henrici Primi 222–223 (L. J. Downer ed., 1972) (imposing penalty for any abortion and treating a woman who aborted a "quick" child "as if she were a murderess").
- ↑ 2 Gentleman's Magazine 931 (Aug. 1732).
- ↑ Id., at 932.
