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.