Refuting the Myths of Abortion History 

In his book “Dispelling the Myths of Abortion History,” Professor Dellapenna systematically demolishes the historical pillars supporting Roe v. Wade’s claim of a right to privacy that encompasses abortion. Some of the more important myths are listed below.

Myth: It is “doubtful that abortion was ever firmly established as a common-law crime, even with respect to the destruction of a quick fetus” (Roe v. Wade, 410 U.S. 113, 136).

Fact: Means based this conclusion, repeated uncritically by Justice Blackmun, on a misreading of two 14th-century cases, one of which did not even involve abortion. The defendant in the second case was indicted for abortion, but not arraigned, almost certainly due to a lack of proof that the child’s death resulted from abortion rather than miscarriage. If Means had looked beyond these inconclusive cases, he could have found dozens of prosecutions for injury abortions and “ingestive” abortions (involving oral consumption of supposedly abortifacient herbs, potions, or noxious substances) in both ecclesiastical and lay courts in England in the late 15th and 16th centuries (Dellapenna, 176–183). Legal records by the end of the 16th century “indicate that both forms of abortion were capital felonies regardless of consent or (more typically) lack of consent by the woman undergoing the abortion attempt” (Dellapenna, 185).

Myth: Sir Edward Coke, “Father of the Common Law,” who wrote “the first comprehensive and systematic treatment of the common law since Bracton” (circa 1256), recorded that an abortion after “quickening” which resulted in a stillborn child was only a misdemeanor (and by inference, abortions performed before the mother could feel the child moving were permissible).

Fact: At a time when medical knowledge of fetal development was almost nonexistent, quickening was an evidentiary requirement to prove the child was alive when the abortion was undertaken. “Quicke with child” eventually became synonymous with “pregnant.” Dellapenna reasonably posits that English courts had begun to ascribe lesser penalties for abortions resulting in still births in order to obtain convictions from juries reluctant to punish the mother with death. Prosecutions in the American colonies of Connecticut, Delaware, Maryland, Rhode Island, and Virginia were “consistent with the law of England” or were “more restrictive of abortion” (Dellapenna, 228).

Myth: “[It] has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation” (Roe v. Wade, 410 U.S. 113, 149). Given the “safety” of abortion in the latter half of the 20th century, the Court concludes the rationale for such laws no longer exists, and the “obsolete” laws can be struck down.

Fact: Means (and Justice Blackmun) rely on a comment selectively drawn from a single 1858 New Jersey abortion case (and a subsequent case quoting it) which described the New Jersey statute’s purpose as protecting the mother’s life. In a passage immediately preceding that statement, however, the New Jersey court explained that the protection of the child’s life was the purpose of the prohibition against abortion in the common law, and the statute was meant to supplement common law by adding protection for the mother (Dellapenna, 286). Means claimed he could find no 19th-century abortion cases that reflected a different legislative intent. Dellapenna, however, found 17 cases in the 19th century that describe the protection of fetal life as the primary reason for statutes prohibiting abortion.

Myth: The 19th-century state statutes prohibiting abortion had little to do with opposition to abortion. They represented a conspiratorial power grab by the male-dominated medical societies to drive mostly female midwives (“irregular” practitioners of medicine) out of business.

Fact: This widely accepted theory, proposed by historian James Mohr in his 1978 book, strains credulity. Physicians opposed abortion because science had begun to unlock the mysteries of conception and fetal development. The citizens who lobbied most vocally for stricter laws against abortion were in fact the early feminists. Lawyers, journalists, and clergy also are on record as supporting stricter laws against abortion.