The Relevance of Common Law to Today's Abortion Debate: How Did the Law Work in Practice?

On Wednesday, the U.S. Court of Appeals for the Fifth Circuit hears oral arguments in the government’s appeal of Judge Matthew Kacsmaryk’s ruling suspending the Food and Drug Administration’s approval of the drug mifepristone. While the Supreme Court stayed Kacsmaryk’s ruling on April 21, the court did not weigh in on the merits of the case. In his opinion, Kacsmaryk claimed in part to be championing the “unborn humans extinguished by mifepristone — especially in the post-Dobbs era.” But, there is a paradox here: This “new era” has been rapidly rushed in by a decision that insisted on historical links to English common law. There is certainly a link, but not the one that Justice Samuel A. Alito Jr. tried to make in his opinion.

Alito made the mistake of reducing the complexities of 18th-century beliefs about reproduction to what is written in a narrow range of what he terms “scholarly treatises,” writings by figures like jurist/judge William Blackstone (1723-80). But a broader study of the interaction of pregnant women and the courts in the 18th century reveals just how unsettled the question of fetal life was under English law. In fact, it shows that the cultural and legal apparatuses to manage pregnancy were not state interest in protecting fetal life, but rather a struggle for control over the bodies of women. The rulings in Dobbs and Northern District of Texas in Alliance for Hippocratic Medicine v. FDA go significantly further than the 18th-century state contemplated.

The 18th-century legal system rarely took an interest in whether someone was pregnant. When it did, it was because a woman’s life had become entangled with the courts for another reason — because she had stolen a bolt of cloth or found herself widowed, with her husband’s relatives eyeing the estate. Under such circumstances, declaring oneself pregnant before a judge was a strategic choice. The thorny problem of a fetus’s legal status was a wrench that female offenders or claimants could lob into the machinery of justice, generally as a Hail Mary attempt to preserve their lives or property.

Here’s one way it worked. Between the 14th and the end of the 19th centuries, English women facing capital punishment had the option to “plead the belly”: to request a delay or commutation of sentence because they were pregnant. To secure such a reprieve, a woman had to prove she was “quick with child.” “Quick” is a very old term for “alive or animate.” A woman quick with child is pregnant with a fetus that has quickened — whose movements can be sensed by its mother. Women “young with child” were not eligible to plead their bellies because the fetus was not considered sufficiently alive.

Before chemical pregnancy tests, ultrasounds or even good stethoscopes, “Am I pregnant?” was not a singular, binary question: It was a matter of growing conviction based on a variety of undependable physical signs. Changes to the breasts or menstrual cycle, for example, could be highly suggestive, but there was no reliable way to ascertain the contents of a woman’s insides short of birth or miscarriage.

In the courtroom, determination of pregnancy status fell to a “Jury of Matrons.” This body might ideally have comprised a dozen midwives, but in practice, it was usually made up of married women who happened to be nearby at the time of an offender’s court appearance. Their findings were notoriously unreliable. Often, they were suspected of lying on the offender’s behalf.

When death was the penalty for a wide range of crimes we’d now readily describe as “petty” — in his legal commentary, Blackstone himself enumerated 160 acts bearing an automatic capital sentence, most of them property crimes — pleading the belly sometimes provided an opportunity for women to extend one another a level of clemency in defiance of the demands of written law.