Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/21

Rh for example, an indictment charged that a man "Murtherously endeavoured to destroy or Murther the Child by him begotten in the Womb." Proprietary v. Mitchell, 10 Md. Archives 183 (W.H. Browne, ed., 1891). And by the 19th century, courts frequently explained that the common law made abortion of a quick child a crime. See, e.g., Smith v. Gaffard, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48, 55 (1851); State v. Cooper, N. J. L. 52, 52–55 (1849); Commonwealth v. Parker, 50 Mass. 263, 264–268 (1845).

The original ground for drawing a distinction between pre- and post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it in 1872: "[U]ntil the period of quickening there is no evidence of life; and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is endowed with life" because "foetal movements are the first clearly marked and well defined evidences of life ." Evans v. People, 49 N. Y. 86, 90 (1872) (emphasis added); State v. Cooper, 22 N. J. L:L. [sic] 52, 56 (1849) ("In contemplation of law life commences at the moment of quickening, at the moment when the embryo gives the first physical proof of life, no matter when it first received it." (emphasis added)).

The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus "as having a 'separate and independent existence.'" Brief for United States