Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/22

This page has been validated.

22

DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION

Opinion of the Court

as Amicus Curiae 26 (quoting Commonwealth v. Parker, 50 Mass. 263, 266 (1848)). But the case on which the Solicitor General relies for this proposition also suggested that the criminal law's quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that "to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being.” Parker, 50 Mass., at 266 (citing 1 Blackstone 129); see also Evans v. People, 49 N. Y. 86, 89 (N. Y. 1872); Mills v. Commonwealth, 13 Pa. 631, 633 (1850); Morrow v. Scott, 7 Ga. 535, 537 (1849); Hall v. Hancock, 32 Mass. 255, 258 (1834); Thellusson v. Woodford, 31 Eng. Rep. 117, 163 (1789).

At any rate, the original ground for the quickening rule is of little importance for present purposes because the rule was abandoned in the 19th century. During that period, treatise writers and commentators criticized the quickening distinction as "neither in accordance with the result of medical experience, nor with the principles of the common law." 1 F. Wharton, The Criminal Law of the United States §1220, at 606 (4th rev. ed. 1857); see also J. B. Beck, Researches in Medicine and Medical Jurisprudence 26–28 (2d ed. 1835) (describing the quickening distinction as "absurd" and "injurious").^[1] In 1803, the British Parliament made

↑ See Mitchell v. Commonwealth, 78 Ky. 204, 209-210 (1879) (acknowledging the common-law rule but arguing that "the law should punish abortions and miscarriages, willfully produced, at any time during the period of gestation"); Mills v. Commonwealth, 13 Pa. 631, 633 (1850) (the quickening rule "never ought to have been the law anywhere"); 1 J.P. Bishop, Commentaries on the Law of Statutory Crimes §744 (1873) ("If we look at the reason of the law, we shall prefer" a rule that "discard[s] this doctrine of the necessity of a quickening"); 5 Transactions of the Maine Medical Association 37-39 (1866); 12 Transactions of the American Medical Association 75-77 (1859); W. Guy, Principles of Medical Forensics 133-134 (1st American ed. 1845); 1 J. Chitty, A Practical Treatise on Medical Jurisprudence 438 (2d American ed., 1836); T.R. Beck & J.B. Beck, Elements of Medical Jurisprudence 293 (1823); T. Percival, The Works, Literary, Moral and Medical 430 (1807); see also Keown 38-39 (collecting English authorities).

[1] See Mitchell v. Commonwealth, 78 Ky. 204, 209-210 (1879) (acknowledging the common-law rule but arguing that "the law should punish abortions and miscarriages, willfully produced, at any time during the period of gestation"); Mills v. Commonwealth, 13 Pa. 631, 633 (1850) (the quickening rule "never ought to have been the law anywhere"); 1 J.P. Bishop, Commentaries on the Law of Statutory Crimes §744 (1873) ("If we look at the reason of the law, we shall prefer" a rule that "discard[s] this doctrine of the necessity of a quickening"); 5 Transactions of the Maine Medical Association 37-39 (1866); 12 Transactions of the American Medical Association 75-77 (1859); W. Guy, Principles of Medical Forensics 133-134 (1st American ed. 1845); 1 J. Chitty, A Practical Treatise on Medical Jurisprudence 438 (2d American ed., 1836); T.R. Beck & J.B. Beck, Elements of Medical Jurisprudence 293 (1823); T. Percival, The Works, Literary, Moral and Medical 430 (1807); see also Keown 38-39 (collecting English authorities).

[1]