Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/23

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23

Opinion of the Court

abortion a crime at all stages of pregnancy and authorized the imposition of severe punishment. See Lord Ellenborough's Act, 43 Geo. 3 c. 58. 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 (listing state statutory provisions in chronological order).^[1] By 1868, 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 Appendix A. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. Ibid.

The trend in the territories that would become the last 13 States was similar: all of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico). See Appendix B; see also Casey, 505 U. S., at 952 (Rehnquist, C. J., dissenting); Dellapenna 317–319. By the end of the 1950s, according to the Roe

↑ 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 Law 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 & n. 15. Those scholars appear to have overlooked Rhode Island, which criminalized abortion at all stages in 1861. See Act of Mar. 15, 1861, ch. 371, §1, Acts & Resolves R. I. 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 Br. 27-28 (citing Quay, supra), with Appendix A.

[1] 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 Law J. 29, 34-36 (1985) (Witherspoon) (same).

[2] Some scholars assert that only 27 States prohibited abortion at all stages. See, e.g., Dellapenna 315; Witherspoon 34-35 & n. 15. Those scholars appear to have overlooked Rhode Island, which criminalized abortion at all stages in 1861. See Act of Mar. 15, 1861, ch. 371, §1, Acts & Resolves R. I. 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 Br. 27-28 (citing Quay, supra), with Appendix A.

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