Opinion of the Court
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.
2
i
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 "eminent common-law authorities (Blackstone, Coke, Hale, and the like)," Kahler v. Kansas, 589 U.S. __, __ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton's 13th-century treatise explained that if a person has "struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide." H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta ch. 20, reprinted in 53 Selden Soc'y 60–61 (H.G. Richardson & G.O Sayles eds. 1953)
- ↑ The exact meaning of "quickening" is subject to some debate. Compare Brief for Amici Curiae Scholars of Jurisprudence John M. Finnis and Robert P. George in Support of Petitioners 12–14 & n.32. ("a quick child" meant simply a "live" child, and under the era's outdated knowledge of embryology, a fetus was thought to become "quick" at around the sixth week of pregnancy), with Brief for Amici Curiae American Historical Association and Organization of American Historians Br. 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 __–__.
