Clarke Forsythe writes on the history of the “born-alive rule” in Anglo-American law, highlighting the importance of its history and application for refuting any historically-alleged right to abortion:

Justice Samuel Alito’s leaked draft opinion could be even stronger in refuting the notion that Anglo-American law ever recognized a right to abortion. The draft addresses the common-law history in detail and is powerful in assembling the historical data and describing the contemporary medical context.

But nowhere does the February 10 draft discuss the common-law born-alive rule. The rule — and, more important, its prenatal application — demonstrates conclusively that Anglo-American law never recognized any right to abortion, even before quickening. This is particularly relevant in rebutting the claim of the U.S. solicitor general, Elizabeth Prelogar, who told the Supreme Court that “at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages.”

As the draft opinion shows, abortion law was necessarily limited by contemporary medical understanding. The era of the common law — before 1803 when the first English abortion statute was adopted by Parliament — was a time of primitive medicine and high infant mortality. (The stethoscope, for example, wasn’t invented until 1816.) Before modern medicine, the mother’s first sense of fetal movement — called quickening — was the most reliable evidence of a viable (progressing) pregnancy and a live child in utero. That generally occurs around 16 to 18 weeks of pregnancy.

Before quickening, all “signs” of pregnancy were ambiguous, evanescent, and unreliable. The law focused on quickening as the most reliable evidence of pregnancy and fetal life. The quickening rule was an evidentiary rule, as numerous treatises and common-law cases confirm, not — as abortion advocates claim — a substantive rule of humanity or personhood. …

[T]he born-alive rule was adopted as a standard of sufficient evidence of homicide. Live birth — showing signs of life outside at any time of pregnancy — was necessary at the time to connect the dots, to show that an abortive act killed a living prenatal human being. Evidence of live birth was accepted at any stage of pregnancy. There was no gestational limit. …

The born-alive rule, like the quickening rule, was an evidentiary rule. And if the infant was born alive, that evidence of life outside eclipsed the need for the quickening rule.

Some common-law writers mention the born-alive rule as early as the 1300s. And it was confirmed by cases and legal authorities such as Coke for centuries, but the clearest statement was by William Blackstone in his influential Commentaries on the Laws of England in the 1760s. He held: “To kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.” This is the clearest statement of the prenatal application of the born-alive rule.

The born-alive rule shows two things of legal importance that utterly refute Roe v. Wade. First, there was no “right” to an abortive act. An abortive act that resulted in death after birth was a homicide. Second, it shows that the connection of the prenatal act in utero to the death after birth from the prenatal act proved the elements (corpus delecti) of homicide. It showed that the prenatal being and the child after birth were the same individual. If the child was not a human being until after birth — as Justice Blackmun suggested in Roe — then no prenatal act could be relied upon to prove homicide. The prenatal application of the born-alive rule showed that the human entity inside and outside the womb was the same entity in the view of the common law.

The U.S. Supreme Court finally appears set to reverse Roe v. Wade. When it does so, it will be ending one of the most tragic experiments in the history of constitutional law—a 49 year experiment to see whether the strong might get away with denying the very humanity of their most vulnerable brothers and sisters.

Alexandra DeSanctis reports on our latest AUL/YouGov national poll, which finds that American majorities agree that abortion ends the life of a human being before birth:

Americans United for Life (AUL) has partnered with YouGov to survey 1,000 Americans on their opinions about abortion, fetal personhood, and legal rights for the unborn. YouGov conducted the survey between May 6 and May 13, shortly after someone leaked a draft opinion in the Supreme Court case Dobbs v. Jackson Women’s Health Organization.

The poll sample included Americans with a wide range of views about abortion. Thirty-nine percent of respondents said they are pro-choice, 32 percent said they are pro-life, and 29 percent said they identify with neither label.

According to the poll results, a copy of which was provided exclusively to National Review, majorities believe in fetal personhood and believe that unborn children have a variety of rights. For instance, a combined 55 percent of respondents said they believe an unborn child is a person either from the moment of conception or within the first 12 weeks of pregnancy. Only 14 percent of respondents said they think an unborn child becomes a person at birth. An overwhelming majority (86 percent) say that the unborn child is a person by the time he or she can survive outside the mother’s womb.

Meanwhile, supermajorities believe unborn children have a number of rights, including the right to be born (80 percent), the right to be protected from violence or assault (89 percent), and the right to be protected against substance abuse (90 percent).

A slight majority (51 percent) said that abortion ends the life of a human being before birth, and 52 percent said they would support the Supreme Court “extending legal rights of personhood to unborn children.”

I think all of these are important findings. As encouraging as many of these results are, these findings also underscore why human rights shouldn’t ultimately be put to a vote—and why human rights aren’t won or lost simply because majorities shift.

Human rights are natural rights, meaning inherent in our nature as rational creatures. Our natural rights are naturally accessible to us by our rational, that is, reasoning, capacities.

A constitutional democracy like ours exists not for the purpose of enshrining ever-shifting majority preferences, but rather for upholding and safeguarding a political order that points to reality and to the rights we possess by our nature.