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only because the woman involved was forced to testify,122 but also because the New Jersey court made it clear that a woman could be charged with the crime of common law abortion if the child had “quickened."123 Contrary to the implication of the Supreme Court in Roe, the New Jersey statute involved124 did not grant the woman immunity from prosecution because of a policy favoring abortion. Rather, the statute called for compulsory testimony from a witness who had participated in an abortion, and provided statutory immunity for the person so compelled. The purpose of the statute was to facilitate punishing the crime of abortion.1 125 The grant of immunity was necessary to save the statute from invalidity under the fifth amendment's guarantee against self-incrimination.

The importance of such facts is clear in terms of their effect on the validity of the analytical structure upon which the Court based its creation of a new constitutional right to abortion. The common law's growing concern with the preservation of unborn life implicitly refutes the central proposition of the Court's thesis: that access to abortion was a common law freedom.

One need not limit inquiry to the cases to ascertain the weakness of the contention that abortion laws were concerned only with the protection of the woman. Examination of the majority of the statutes held unconstitutional by the Supreme Court in Roe v. Wade,126 or by lower federal courts employing similar rationales, 127 reveals that the legislatures and courts of many states were indeed concerned with the preservation of unborn life. If the only reason for challenging the validity of state abortion laws is an alleged lack of necessity to protect a woman from an unsafe medical procedure, such an attack fails upon a showing that the state law is also concerned with the preservation of unborn life.

If the state law forbidding abortion challenged in Roe were designed in any respect to protect unborn life, their alleged constitutional infirmity stems from neither a lack of rational basis nor a conflict with the express provisions of the Federal Constitution; rather, it stems from

State, 37 Tex. Crim. 552, 560, 40 S.W. 287, 289, 295 (1897) (the gravaman of the crime of abortion is feticide, the evidence in the case was sufficient to support the charge). 122. In re Vince, 2 N.J. 443, 451, 67 A.2d 141, 145 (1949). 123. Id. at 449-50, 67 A.2d at 144.

124. N.J. REV. STAT. 2A:87-2 (1973).

125. In re Vince, 2 N.J. 443, 451, 67 A.2d 141, 145 (1949).

126. E.g., LA. REV. STAT. § 37: 1285 (1964); Me. Rev. STAT. ANN. tit. 17, § 51 (1964); OHIO REV. CODE § 2901.16 (1953).

127. E.g., Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972), aff'd, 452 F.2d 1211 (1st Cir. 1972); Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), appeal dismissed, 400 U.S. 903 (1972).

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the fact that the federal judiciary has decided that such life is not worthy of constitutional protection.128 A thorough understanding of constitutional law is not required in order to appreciate the distinction.

5. 19th Century Statutory Law

At the outset of this discussion it should be noted that the Supreme Court's conclusions concerning the position of 19th century statutory law were expressed in absolute terms: "[the fact that] throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person', as used in the Fourteenth Amendment does not include the unborn."129 Therefore, according to the Court, laws protecting the unborn are unconstitutional. Since this conclusion is based upon an alleged lack of statutory and common law concern with prenatal life in the period prior to the ratification of the Constitution and the addition of the fourteenth amendment, a demonstration that 19th century common and statutory law were committed to the preservation of unborn life casts substantial doubt on the validity of the Court's view. At the same time, such a showing lends credence to the proposition that neither the words of the fourteenth amendment itself, nor the provisions of any other section of the Constitution, require that the unborn be excluded from the protection of the due process clause and, thereby, denied the right to life.130

Perhaps the best evidence of state intent to protect the unborn by statute is found in Smith v. State, 181 decided by the Supreme Court of Maine 17 years before the enactment of the fourteenth amendment. Not only did the statute132 involved in Smith abrogate the "quickening" requirement which had, by that time, become obsolete for purposes of defining the nature of the offense charged,183 but it also required specificity in pleading the offense defined by the statute. If the pleading did not allege the destruction of the child, it would be held fatally defective for not charging the essential element of the crime of abortion. 134 Even more revealing, however, is the 19th century Connecti

128. See Roe, 410 U.S. at 161, 163 ("life, as we recognize it", "meaningful life") (majority opinion); Doe, 410 U.S. 179, 209, 217 (1973) ("I am not prepared to hold that a state may equate .. all phases of maturation preceding birth") (Douglas, J., concurring).

129. Roe, 410 U.S. at 158 (1973).

130. By holding that a state may not constitutionally adopt a "theory of life" which would enable it to extend substantive protection to the lives of the unborn, the Court effectively decided that the Constitution requires their exclusion. Roe, 410 U.S. at 162. 131. 33 Me. 48 (1851). See notes 106-16 and accompanying text supra.

132. Me. Rev. Stat. c. 160, §§ 13-14 (1840).

133. Id. § 14.

134. Smith, 33 Me. at 60.

72-889 O 76 Pt. 2 -7

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cut abortion law,135 which demonstrates the concern of 19th century legislation for the preservation of unborn life and identifies the inadequacy of the "analysis" undertaken in Roe v. Wade.

The nation's first abortion law was enacted in 1821 by the Connecticut legislature. 186 The history of that statute during the years before Roe v. Wade foreclosed any further attempt by the Connecticut legislature to protect the unborn, reveals that as medical knowledge of the unborn progressed, so did the protective ambit of the statute. In Roe v. Wade the Court referred the reader to the position of the American Medical Association [hereinafter the A.M.A.] in the period prior to the adoption of the fourteenth amendment.187 Stating that the prevailing view of late 19th century America was anti-abortion,188 the Court conceded that the position of the medical profession "may have played a significant role in the enactment of stringent criminal abortion legislation during that period."189 Considering the commonly asserted position that American anti-abortion legislation was intended to protect the pregnant woman alone, one might imagine that the anti-abortion position of the A.M.A. was based upon danger to women. This was not the case, however. The A.M.A. Committee on Criminal Abortion rendered a report to the A.M.A.'s 12th Annual Meeting in 1859, nine years before the enactment and ratification of the fourteenth amendment. The focus of the report was the unborn. The Court reported the A.M.A.'s position as follows:140

It deplored abortion and its frequency and it listed three causes "of this general demoralization":

The first of these causes is a widespread popular ignorance of the true character of the crime—a belief, even among mothers themselves; that the foetus is not alive till after the period of quickening.

The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . .

...

The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and ex

135. Conn. Stat. tit. 22, §§ 14, 16 (1821), amended by Conn. Pub. Acts, ch. 71 § 1 (1860) (deleting the "quickening" distinction), held unconstitutional, Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972), reinacted Conn. Pub. Act No. 1, May 1972 Special Session (declaring specifically a legislative intent to protect the unborn), held unconstitutional, Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972).

136. Id.

137. 410 U.S. at 141-42.

138. Id. at 141.

139. Id.

140. Id. at 141-42.

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[Vol. 63:1250 ploded medical dogmas. With strange inconsistency the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.141

The Court then noted that the A.M.A. adopted resolutions "calling upon state legislatures to revise their abortion laws" and protested "such unwarrantable destruction of human life."142 A report of the A.M.A.'s position appeared in an 1860 edition of the Connecticut House Journal,143 and-though it is not clear what effect this report had on the legislative process-the Connecticut statute was amended that year to delete the quickening distinction.144 Thus amended, the statute remained in effect, surviving two attempts in the late 1960's to change it, until ruled unconstitutional in Abele v. Markle.145 The Abele case most clearly reveals that even if the intent of state abortion laws was undisputed, the fact that they were designed to protect the unborn would make little difference to the Court's decision;146 the interests of the unborn had already been determined to be "insufficient":147

The Malthusian specter, only a dim shadow in the past, has caused grave concern in recent years as the world's population has increased beyond all previous estimates. Unimpeachable studies [referring to the report of the National Commission on Population Growth and the American Future] have indicated the importance of slowing or halting population growth. . . . In short, population growth must be restricted, not enhanced, and thus the state interest in pronatalist statutes such as these is limited.1 148

The "pronatalist" sentiment about which the Abele court spoke was summarized by the Connecticut Legislative Council as follows: "The Council feels that should an unborn child become a thing rather than a person in the minds of people in any stage of its development, the dignity of human life is in jeopardy."119

After the first decision in Abele the Connecticut legislature rein

141. 12 TRANS. A.M.A. 73-77 (1859), quoted in Roe, 410 U.S. at 141-42. 142. Roe, 410 U.S. at 142.

143. Abele v. Markle, 342 F. Supp. 800, 805, 807 (D. Conn. 1972) (Newman, J., concurring).

144. See note 135 supra.

145. Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972) (majority opinion). It is interesting to note that the district court also relied upon Professor Means' interpretation of the common law in striking down a statute which was clearly intended to protect the unborn.

146. Id. at 802.

147. Id.

148. Id.

149. Id. at 816 (Clarie, J., dissenting).

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acted its abortion statute, this time specifically expressing its intent to protect unborn life.150 Again, the same three-judge federal court held (2-1) that the statute was unconstitutional,151 relying upon an argument similar to that which underlies the Roe decision.152

153

In Roe v. Wade the Supreme Court cited Abele with approval, stating that its decision was “in accord” with the results of that case." At first glance, however, the Court's statement appears erroneous. While the Supreme Court concluded that 19th century abortion laws were unconcerned with the lives of the unborn,1 ,154 the panel which decided Abele felt that, notwithstanding the focus of Connecticut's 19th century abortion law upon the preservation of prenatal life, the law was unconstitutional “because due to the population crisis . . . the state interest in these statutes is less than when they were passed.”155 The resolution of this inconsistency may be found in the rationale of Babbitz v. McCann,156 another case the Court found "in accord" with its decision. Babbitz invalidated an abortion statute which protected the unborn "from the time of conception": "The mother's interests are superior to that of an unquickened embryo, whether the embryo is mere protoplasm, as the plaintiff contends, or a human being, as the Wisconsin statute declares.”157

The foregoing demonstrates the weakness of the contention that abortion was a matter of right in 14th Century England and 19th Century America-Professor Means' assertions to the contrary notwith

150. Conn. Pub. Act No. 1, May 1972 Special Session.

151. Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972).

152. See id. at 805-07.

153. Roe, 410 U.S. at 158. The Court also cited Byrn v. New York City Health & Hospital Corp., 31 N.Y.2d 194, 286 N.E.2d 887 (1972) as supporting its proposition that the unborn are not "persons" protected by the Constitution. The import of Byrn, however, is substantially broader, as reference to Judge Breitel's opinion for the Court of Appeals points out:

The second level of debate is the real one, and that turns on whether the human entity conceived but not yet born, is and must be considered a person in the law. . . . It is not true, however, that the legal order necessarily corresponds to the natural order. That it should or ought is a fair argument, but the argument does not make its conclusion the law. . . .

What is a legal person is for the law to say, which simply means that upon according legal personality to a thing the law affords it the rights of a legal person That such action may be wise or unwise, even unjust and evolutive of principles beyond the law does not change the legal issue or its resolution. The point is that it is a policy determination whether legal personality should attach and not a question of biological or "natural" correspondence.

Id. at 200-01, 286 N.E.2d at 889. But see Glona v. American Guarantee Co., 391 U.S. 73, 75-76 (1968) (rejecting the “legal” - “biological" distinction).

154. See Doe, 410 U.S. at 190-91 (1973).

155. Abele v. Markle, 342 F. Supp. 800, 802 (1972).

156. 310 F. Supp. 273 (E.D. Wis. 1970).

157. Id. at 301.