Is abortion constitutional? Let’s ask the founders

Is abortion constitutional? The Supreme Court concluded in Roe v. Wade (1973) that an expectant mother has a “fundamental right to abortion.” According to Supreme Court logic, this right to abortion is protected under the penumbral right of privacy supposedly guaranteed by the Bill of Rights.

To see whether the Roe decision is an accurate interpretation of constitutional rights, it is important to understand the intentions of the authors of the Constitution. Did they advocate legal abortion protected by the Constitution?

One of the most authoritative sources for learning law during the founding era was William Blackstone’s Commentaries on the Laws of England. Blackstone, a distinguished English jurist, was so well-liked by the founding fathers that he was the second most frequently cited thinker in the American political writings of the founding era. American law students studied his work so religiously that Thomas Jefferson wrote to a friend that “Blackstone is to us what the Koran is to the Muslims.”

Blackstone affirmed in his Commentaries that an individual’s right to life is an “immediate gift of God.” This right to life is legally binding “as soon as an infant is able to stir in the mother’s womb.” Per Blackstone,

“For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.”

Interestingly, Blackstone also explains that fetuses “in the mother’s womb” are legally considered “to be born.” Thus, the law considered a fetus to be his or her own person, independent of the mother.

From these commentaries, the founding fathers learned that any abortion perpetrated after the stirring of an infant in the mother’s womb was a “heinous misdemeanor.”

American courts upheld this traditional common law approach in characterizing abortion as a misdemeanor. Founding father James Wilson, a signatory of the Declaration of Independence and original U.S. Supreme Court justice, taught his law students that,

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

Similarly, St. George Tucker, a Madison judicial appointee and professor of law at the College of William and Mary, explained in his celebrated legal treatise on American law that it is  “a great misprision [misdemeanor]” to “kill a child in its mother’s womb.”

Laws in American states criminalized abortion from the beginning. For example, Virginia law outlawed the practice of using “potion” to “unlawfully destroy the child within her [womb].” These laws were crafted by many of the same individuals who framed the Constitution.

It is therefore inconceivable that the framers intended constitutional protections for abortion as a “fundamental right.” Indeed, the framers believed the opposite. From their perspective, the unborn child has a fundamental right to life, a right that would be infringed by an abortion that ends his or her life.

A “fundamental right to abortion” does not exist in the Constitution or its amendments. It is the height of intellectual dishonesty to argue that the authors of the Constitution and its amendments intended to protect abortion under some vague and unwritten “right to privacy.” That so many courts and judges have for so long upheld a legal doctrine antagonistic to the Constitution reveals the rogue nature of the modern judiciary.


Blaine Conzatti is a columnist and research fellow at the Family Policy Institute of Washington. He can be reached at Blaine@FPIW.org.


 

3 replies
  1. Jay King
    Jay King says:

    In addition to the problem of this author ignoring the quickening at 14 weeks Conzatti also writes “Laws in American states criminalized abortion from the beginning” but then cites only Virginia’s 1810 lawbook which doesnt even say what Conzatti claims it says. Virginia law in this source calls use of potions for abortion after quickening a “heinous misdemeanor.” Murder is reserved should that portion kill the mother as well. I am not a fan of abortion but the pro-life movement seems to imagine that abortion was invented by liberals in the 1970s. On the contrary abortion was legal and regularly practiced before 14 weeks for most of the 19th Century.

    Reply
  2. Rep. Mark Finchem, (AZ, LD_11)
    Rep. Mark Finchem, (AZ, LD_11) says:

    Mr. Conzatti, thank you for posting this. Mr. Fisher, in his snarky remarks above, fails in his attempt to assault your work. The definition of the term “stirring,” according to Merriam Webster Dictionary (2019), as a noun means to, “motion, move, movement, shift, shifting, stir.” As the heart begins to beat there is motion, movement, shifting of the body within itself. While Blackstone is clear, “that an individual’s right to life is an “immediate gift of God,” indeed there is imperceptible movement of the cells as they organize, a fact which Mr. Fisher also ignores. Thank you for your commentary, pointing to the common law standard. SCOTUS itself said it ignored the standard and entered into the political realm.

    Reply
  3. Richard Fisher
    Richard Fisher says:

    Your provided quotation disavows your own deductions. Founding father James Wilson said, “In the contemplation of law, life begins when the infant is first able to stir in the womb.” What you fail to pay any mind to whatsoever in this article is that stirring does not take place until 14 weeks into pregnancy at the earliest, and usually as late as 16 weeks. Thus, the law considers a fetus to be his or her own person *once quickening has begun. Quickening and stirring are interchangeable terms for the same phenomena of fetal movement which does not begin until well into the second trimester of pregnancy. Shame on you for leaving this unmentioned and purporting the idea that the founding fathers criminalized abortion when they did not. Abortion was specifically only criminalized post-quickening, as your own sources display clearly with the terms “quick with child” and “once stirring has begun”. Also, that ‘vague & unwritten’ “right to privacy” you refer to in your conclusory statement is called the fourth amendment of the constitution, you should give it a read some time.

    Reply

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