Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/19

Rh whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it." 4 Blackstone 200 (emphasis added).

Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be "with quick child"—only that she be "with child." Ibid. And it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient "without any intent of doing [the patient] any bodily hurt." Hale 429; see 4 Blackstone 197. These other physicians—even if "unlicensed"—would not be "guilty of murder or manslaughter." Hale 429. But a physician performing an abortion would, precisely because his aim was an "unlawful" one.

In sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.

In this country, the historical record is similar. The "most important early American edition of Blackstone's Commentaries," District of Columbia v. Heller, 554 U. S. 570, 594 (2008), reported Blackstone's statement that abortion of a