April 20, 2007
Who’s a Strict Constructionist? III Posted by Joshua Zeitz at 12:05 PM EST John Steele Gordon raises an important question, which I’ll try to answer. Yesterday I quoted from Justice Harry Blackmun’s decision in Roe v. Wade, which asserts that in 1787, when the Constitution was drafted, as a matter of “common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” I cited this part of Roe to suggest that since women had a common-law right to abort a pregnancy in 1787, by the rules of originalism and strict constructionism, abortion is a constitutionally protected right by the terms of the Ninth Amendment. Mr. Gordon writes, ”Blackmun seems to be saying that it [common law] was silent regarding abortion early in pregnancy, as was statute law in 1787 (only violations of statute law can lead to criminal indictment, I believe). So it seems to me to be quite a stretch to argue that, since the common law was silent on something, that therefore that something “was a common-law right in 1787.” Part of the problem is that I quoted only selectively from Blackmun’s decision. He continued: “Most American courts [in the colonial era] ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a ‘misprision,’ a term they translated to mean ‘misdemeanor.’ . . . In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law.” In other words, at the time the Constitution was drafted, common law affirmatively allowed women to abort pregnancies before the period of fetal viability, and it regarded the abortion of a “quick”—or viable—fetus as a misdemeanor crime. We know this because courts in England and the United States repeatedly declined to convict women, doctors, or midwives on statutory homicide charges in contested cases. Common law develops on a case-by-case basis. I hope this answer’s some of Mr. Gordon’s question.
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