I’m very disappointed by the result of Dobbs v Jackson Women’s Health Organization. The majority holding of the SCOTUS opinion (authored by Justice Alito) is summarised in the headnote as follows:
The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.1
One of my issues is that SCOTUS has taken a narrower approach to the doctrine of stare decisis in overturning Roe. Precedent itself is now said to apply in a way that I would contend exerts a lower level of binding force than it had been understood to exert only a few decades ago in Planned Parenthood of Southeastern Pa v Casey (1992) (in the case known as Casey).2
As for the reasons of the majority, my instinct is to disagree with the majority’s strict construction of the language used by Sir Matthew Hale and Sir Edward Coke (and others) in the old English authorities (as read through Sir William Blackstone). It is suggested, among other things, that because those jurists sometimes dropped the word ‘quickening’ in their judicial dicta, their reasoning amounts to a ban on all abortions. I would argue the apparent absence of that word in some passages can be explained, in its context, as merely an aspect of these jurists’ elliptical writing at a time when this process of ‘quickening’ (explained below) was less contested and certainly not as clearly the dispositive marker of legal/illegal as the majority contends it was.
The ban that is said to follow from the historical precedents includes both so-called post-quickening and pre-quickening abortions. That majority holding is summarised in part in the headnote as follows:
The Solicitor General repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,” … but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a postquickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal […], and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.3
In short, ‘quickening’ refers to the process by which observable fetal movement occurs (or ‘quickens’) for the first time. The quickening process is said to be ‘felt’ by the bearer (and presumably may be observed in imaging) between 14 and 26 weeks after conception (or between the fourth and sixth month of pregnancy).4 As an illustration of the seventeenth-century law, Blackstone in his Commentaries summarises some of the dicta that fixed on the phenomenon of quickening as a legally dispositive marker in the criminal jurisprudence as follows:
In England in the seventeenth through nineteenth centuries, a woman convicted of a capital crime could claim a delay in her execution if she were pregnant; a woman who did so was said to “plead the belly.” The law held that no women could be granted a second reprieve from the original sentence on the ground of subsequent pregnancy, even if the fetus had quickened. In Ireland on 16 March 1831 Baron Pennefather in Limerick stated that pregnancy was not alone sufficient for a delay but there had to be quickening.5
Notably, the SCOTUS majority does not cite the above passage. But the opinion calls on Blackstone’s work in support of the its contention that post-quickening abortions were regarded as unlawful. As the majority observes:
And writing near the time of the adoption of our Constitution, William 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).6
As for pre-quickening abortions, SCOTUS concedes they were not regarded as criminal homicides, but seeks to clarify that they were not permissible in the following terms:
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. […] Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had ‘never met with a case so barbarous and unnatural.’7
But the evidence called in aid here might be questioned. Notably, the 1732 case relied on is about a woman named Eleanor Beare who was said to have been convicted of ‘destroying the Foetus in the Womb’ of another woman and ‘thereby causing her to miscarry.’ It is further said that the punishment for that purported ‘crime’ (in the terms adopted by SCOTUS) and another ‘misdemeanor,’ Beare was ‘sentenced to two days in the pillory and three years’ imprisonment.’ While this decision is certainly interesting, it appears to have only been reported, as the citation confirms, in the August 1732 edition of Gentleman’s Magazine.8
One may wonder whether this is the kind of source that should be relied on at this level of judicial decision-making. That of course would depend on the nature of the report; however, it seems to invite analysis and it is arguable SCOTUS should have contextualised this old law as not reported directly by the court and certainly not reported to the same standard we would expect in the authorised reporting of judgments today.
In more general terms, I also do not think that the approach taken to the old authorities, such as they are, is consistent with the overarching and competing concept of legal liberty, which should have had an important countervailing impact on the way these old authorities were view. The concept can be summarised in the idiom ‘all that is not explicitly banned is permitted’; and, on this, see Glanville Williams, excerpted below. The prohibitionist approach is writ large in the reasons of the majority; but it is also something that had already been developed outside the Court by the state legislatures. This is evident in the many ‘trigger laws’ (ie, laws that will restrict abortions at the state level upon determination of this case) that have been drafted and will be swiftly enacted now that the decision has been published.9
Further regarding this prohibitionist view of the old authorities: I am not sure the same approach to these precedents would be adopted here or in the UK, even if an implied right of the states to legislate on abortion were to be recognised in those jurisdictions. The result is dismaying in many ways.
The dissent of Justices Breyer, Sotomayor and Kagan (dissenting) appears to have honoured Casey‘s commitment to stare decisis in identifying the binding force of Roe. As they wrote:
An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.10
Thinking further about the dissenting view, it is arguable that some of those restrictions already slated to be enacted (or even already enacted) are not rational. For example, some abortions could apparently be restricted when the mother’s life is at significant risk. How is that rational? Obviously the kinds of conflicts that doctors will have to deal with, both legally and ethically, will be intractable and unbearable. Analysis of the way the decision is interpreted at the level of clinical decision-making is needed.
- Dobbs v Jackson Women’s Health Organization, No 19-1392, 2022 WL 2276808 (US June 24, 2022) https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. ↩︎
- Planned Parenthood of Southeastern Pa v Casey (1991) 505 US 833. ↩︎
- Dobbs, 3. ↩︎
- See Ranana Dine, ‘Scarlet Letters: Getting the History of Abortion and Contraception Right’, Center for American Progress (8 August, 2013) https://www.americanprogress.org/article/scarlet-letters-getting-the-history-of-abortion-and-contraception-right/ ↩︎
- See Blackstone, Commentaries on the Laws of England (7th ed, 1775). ↩︎
- Dobbs at 17, citing Blackstone, Commentaries, 129–30. ↩︎
- Dobbs, 18. ↩︎
- The citation in Dobbs is as follows: 2 Gentleman’s Magazine 931 (Aug. 1732). See Dobbs, 18n26. ↩︎
- See Casey Parks and Amber Phillips, ‘What are ‘trigger’ laws, and which states have them?’ Washington Post (7 December 7, 2021) https://www.washingtonpost.com/dc-md-va/2021/12/07/what-is-an-abortion-trigger-law/. ↩︎
- Dobbs, 3. ↩︎
