Indictability of Early Abortion C. 1868

ed
iew
ev
c. 1868
r
Indictability of Early Abortion
John Finnis
er
pe
University of Notre Dame
Robert P. George
ot
Princeton University
tn
AMERICAN JOURNAL OF JURISPRUDENCE 59 (2014)

rin
ep
The full text of this paper can be downloaded without charge from the Social Science Research Network
electronic library at https://ssrn.com/abstract=3940378
Pr
This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3940378
Indictability of Early Abortion c. 1868
John Finnis
d
University of Oxford
we
Robert P. George
Princeton University
ABSTRACT
vie
Aaron Tang posted on Sep. 13, 2021 "The Originalist Case for an Abortion Middle Ground,"
arguing that "originalist pro-life advocates," including the present authors in our amicus
curiae Brief in the Dobbs case, have made significant mistakes in assessing how many
states in 1868 criminalized elective abortion at all stages of pregnancy. When the
historical facts about the various statutes and cases are correctly reported and
re
understood, the number of such states must, he argued, be reduced from 27 to 15 – from a
clear majority to a minority of the then 37 states. Pro-life advocates had mischaracterized
12 states. His paper was immediately very widely circulated, and called for a response,
however preliminary. So on Sep. 20 we posted on SSRN "A Preliminary Rejoinder to Aaron
Tang," arguing that the first five we looked at from his list of 12 turn out not to have been
er
mischaracterized by pro-life advocates or us, but by Professor Tang.
On Sep. 23 he posted a revised version incorporating a 7-page reply to many of the
criticisms our "Preliminary Rejoinder..." had made.
Accordingly, we have appended a Further Addendum, responding to his replies, and
pe
carrying right through to completion our survey of all the 12 state abortion statutes his
article sought to re-characterize as permitting "pre-quickening" elective abortions. We
have given this greatly expanded version a new title (above), but for the convenience of
readers we have incorporated the whole Preliminary Response – everything before the
Further Addendum – and left it entirely unaltered, including the page numbers. Only pp.
ot
22-73, the title, this Abstract, and the Summary of Results and table of Contents are new.
The Preliminary Response incidentally explained some key features of our Brief,
and includes a final section (pp. 17-18) on a truer "middle ground or middle way."
tn
The result, when all 12 states (plus a few others) are examined, is the same as when
we called a halt to our Preliminary Response after examining four (plus one other: see p. 1,
Prefatory Note). In all 12 instances – as well as, revealingly, in another three – it is
rin
Professor Tang who has mischaracterized the states and their laws. The pro-life count is
intact. Indeed, it should be raised from 27 to 28, since virtually all concerned have (as
Tang agrees) been overlooking one of the then 37 states.
Along the way, we identify some quite general historical misrepresentations or
misunderstandings that Tang – not without novel mistakes of his own – broadly shares
ep
with the late Cyril Means, a law professor and abortion activist whose deeply flawed
historiography was relied on by Justice Harry Blackmun in his opinion for the Court in Roe,
and then recycled by James Mohr: above all, the presumption that what was not directly or
per se subject to criminal sanction ("indictable") was therefore legal and indeed a matter
Pr
of right, and even regarded by the constitutionally relevant public as morally acceptable –
a profoundly mistaken presumption..
d
SUMMARY OF RESULTS
we
The most specific issue in dispute is the date at which each State abolished the common-
law rule requiring that all prosecutions for abortion must charge and prove that the
woman was "quick with child."
The first line of each entry summarizes Professor Tang's position on that issue,
for each of 14 states in dispute.
The second line, (F/G), summarizes the position as shown in this paper.
vie
Massachusetts: 1869, by statute repealing statutory requirement that pregnancy be proved
F/G: 1845 statute (as ruled by Mass. S.Ct. in 1858); irrelevant "1869" statute was 1860.
Vermont: 1867 statute
F/G: 1846 statute (as ruled by Vt. S.Ct. in 1859)
re
Indiana: 1852 statute
F/G: 1835 statute
Alabama: unspecified date after 1868, as established by Ala. S.Ct. tort decision of 1857
F/G: 1841 statute; 1857 decision irrelevant but compatible
New Jersey: unspecified date after 1868, as established by N.J. S.Ct in 1858
er
F/G: 1849 statute; 1858 decision irrelevant but compatible
Texas: 1907 statute, as established by Tex. Ct.Cr.App. in 1915
F/G: 1856 code; 1907 statute and 1915 decision irrelevant
pe
West Virginia: unspecified date after 1868 , as shown by 1870 code
F/G: 1863, continuing 1848 Virginia statute; 1870 code simplifies and enhances
Iowa: Tang, Sep. 13: unspecified date after 1868, as ruled by Iowa S.Ct. in 1863
Tang, Sep. 16: 1858 statute, as ruled by Iowa S.Ct. in 1878
F/G: 1843; 1863 decision irrelevant but compatible
California: unspecified date after 1868, despite terms of 1861 statute
ot
F/G: 1850 statute

Illinois: unspecified date after 1868, despite terms of 1867 statute
F/G: 1827 for abortion by ingestion, 1867 for elective abortion by "any means"
tn
Louisiana: unspecified date after 1868, despite terms of 1856 statute

F/G: 1856 statute
Nevada: unspecified date after 1868, despite terms of 1861 statute
F/G: 1861 statute
Oregon: unspecified date after 1909 , despite terms of 1864 code
rin
F/G: 1864 code; argument of 1909 state prosecutor quite inconclusive

Nebraska; 1866 for abortion by ingestion, 1873 for abortion by instruments
F/G: 1858 for ingestion, 1873 for elective abortion by "any means;"
inference to 1858-73 lawfulness of, or right to, abortion-by-instrument invalid.
ep
Pr
CONTENTS
page
d
2 The framework
we
3 "Non-indictable" – but not "a right," "a liberty," "permitted," or even "lawful"
5 The state-count claim
6 Florida
6 Massachusetts
vie
9 Alabama
11 Iowa
14 An addition to the list
re
15 "Quick" and "quickening"/"quickened
17 The Historic Standard as a Truer Middle Way
18 ADDENDUM er
18 Iowa again
19 New Jersey
22 FURTHER ADDENDUM
pe
22 Our "stunning concession"
28 Indiana
29 Vermont
ot
33 Massachusetts again
36 Alabama again
44 Tang's Ten Revisited
tn
47 Florida again
52 New Jersey again
53 Nebraska
rin
59 West Virginia
63 Texas
68 The final five: California, Illinois, Louisiana, Nevada...
ep
69 ... Oregon
72 The big picture
Pr
Indictability of Early Abortion c. 1868:
John Finnis, University of Oxford
d
Robert P. George, Princeton University
we
posted Oct. 11, incorporating (unchanged since Sep. 22) and supplementing
A Preliminary Rejoinder to Aaron Tang
vie
[Prefatory Note, September 20, 2021]:
Professor Aaron Tang posted the article here discussed, criticizing our amicus
curiae brief in the Dobbs case. The article was widely circulated and read. We began
work on a point-by-point reply, which we were ready to post on September 19. Later
that day, however, one of us happened to notice that the version of Tang’s paper
currently available on SSRN has been revised more than once, in various ways but
re
most substantially on 16 September, in relation to Iowa. Professor Tang had every
right to alter his paper, and he may make additional revisions, which we look
forward to reading. Because his critique was, as we noted, widely read in its initial
draft, and many who read it have asked what we would say in response, we have
decided to post here our reply to the original published version of Tang’s
critique, inserting at the end an Addendum taking note of Tang’s alterations where
er
they bear on our response, and adding also a short supplementary discussion of one
other state to make up, so to speak, for the gap left by his abandonment of Iowa.
pe
Our Amicus Brief in Dobbs revives the position Texas defended in Roe, that “any person”
in the Due Process and Equal Protection Clauses of the Fourteenth Amendment includes
unborn persons. We reinforce it with substantial evidence that, among legally informed
ratifiers in 1868, the public meaning of "any person" included human beings in utero at
ot
any and all stages of gestation, as persons who might therefore be constitutionally
entitled to equal protection of the laws. That evidence included, in a subordinate way,
tn
some reference to state statutory law around the time of the Amendment's ratification.
Professor Aaron Tang of the University of California, Davis now argues in a paper
posted at SSRN that we have miscounted the states that in 1868 prohibited abortion at
rin
all stages of pregnancy: by his count, the list, instead of consisting of 27 (a majority),
really only consisted of about 15. Thus at ratification in July 1868, a majority of states
(he thinks) recognised what he calls a "right to abortion" up to “quickening” at about 16
ep
weeks gestation. So if you want to be an originalist, you should acknowledge an

“originalist middle ground:” not the Casey rule invalidating all prohibitions of abortion
before "viability" (24 weeks), but a rule acknowledging (like, he says, most states in
Pr
1868) the right to elective abortion before and until "quickening" (16 weeks).
Our Brief is mentioned by Tang, both because it says that "in 1868" most states,
27 out of 37, prohibited pre-quickening abortions, and because it argues that, in pre-
d
1800 law-books treated as authoritative in the legal formation and discourse of lawyers
we
in 1868, a woman might be “quick with child” from about six (not 16) weeks, because
during the many centuries when Aristotelian embryology still prevailed in popular and
educated culture alike, the child's human life was supposed to begin then – with its
animation, involving both soul and physical movement – around 40 days/six weeks
vie
after the mother's pregnancy had begun. Tang disputes that argument of ours, briefly,
but devotes the bulk of his article to offering detailed historical reasons for moving 12
states – eight certainly, four probably – from the "prohibited pre-quickening abortion in
re
July 1868" column to the "permitted pre-quickening abortion in July 1868" column. So
"27" should read "15."
To our surprise, Tang's essay sadly outdoes the articles of Cyril Means on which
er
Roe relied. Just as partisan, the new essay is conceptually even more confused and
historically even more error-strewn, at all levels of generality, from big picture to
granular case law.
pe
The framework
Tang does not attend to what our Brief says about original public meaning, or
ot
about the Equal Protection rights of the child in the womb. For Tang, the whole debate
concerns what abortion rights were acknowledged by state laws when the Fourteenth
Amendment was adopted, that is, when these rights of women in (he says) a majority of
tn
states became (he assumes) Due Process rights of pregnant women throughout the
United States. His target is the many "pro-life lawyers" and "pro-life originalists" who
argue that "the [Fourteenth] Amendment's original meaning... leaves states free to ban
rin
abortions at any point in pregnancy" (emph. added).

He seems not to notice that our Brief denies that states have that freedom. As our
first page says:
ep
history proves prohibitions of elective abortions constitutionally obligatory

because unborn children are persons within the original public meaning of the
Fourteenth Amendment's Due Process and Equal Protection Clauses. (emph.
Pr
adjusted)
He does notice, as we've said, the passage where – late in our assembly of
evidence that "any person" as used and meant in the Equal Protection Clause included,
d
besides corporations, the unborn child in utero – our Brief says:
we
The Union in 1868 comprised 37 States, of which 30 had statutory abortion
prohibitions. Most were classified as defining “offenses against the person,” 1

with 27 applying before and after quickening [citation to Witherspoon's seminal
vie
1985 article on 19th century abortion statutes].
Since Tang's crabbed and eccentric version of originalism insists that nothing counts
unless it predates the Amendment's adoption on July 9th, 1868, it's worth noting how
differently we put the timing issue, on the same page:
re
Many such statutes were adopted or strengthened within a year or two of the
Amendment’s ratification, as in New York [citing statutes of 1868 and 1869],
Alabama, and Vermont. In Florida [citing Act of Aug. 6, 1868], Ohio, and Illinois,
er
the very legislatures ratifying the Amendment also banned abortion at all stages.
About a month after ratifying the Amendment, Ohio’s senate committee concluded
pe
that ... “no opinion could be more erroneous” than “that the life of the foetus
commences only with quickening, that to destroy the embryo before that period
is not child murder.” (emphases added)
Tang never tries to envisage and respond to the obvious reasons for counting this sort
ot
of evidence of what the Amendment's drafters and ratifiers took the text's terms to
mean. (The Supreme Court, taking the common-sense view that such evidence counts,
tn
remarks in District of Columbia v. Heller, 554 U.S. 570, 600–01 (2008): “Our
interpretation is confirmed by analogous arms-bearing rights in state constitutions that
preceded and immediately followed adoption of the Second Amendment.” (emphasis
rin
added); similarly (id. at 605) when it treats interpretations of the Amendment ”from
immediately after its ratification” as evidence of “the public understanding of [the] legal
text”.)
ep
Pr
1 See id. at 48.
"Non-indictable" – but not "a right," "a liberty," "permitted," or even "lawful"
Tang's main arguments against his fuzzy target, "pro-life originalists," and for his
d
own putative "middle ground," are interlinked. One is that James Witherspoon's count,
we
recycled by many Dobbs briefs including ours, was "simply wrong": at the date of
ratification, not 27 states out of 37, but only some minority perhaps even as low as 15,
made elective abortion a statutory indictable offense even before quickening. The other
argument – recycling Roe's and Cyril Means' grossest conceptual/historical confusion –
vie
is that, therefore, in a majority of states, elective abortion up until quickening was
"allowed," "permitted," "perfectly lawful," something "the public would have recognized
a legal right to:" a "recognized pre-quickening right to abortion"...
re
Tang wholly ignores a fundamental distinction repeatedly articulated in our Brief,
first at p.3: while only "post-'quickening' abortion was an indictable offense" (emph.
original), er
from the earliest centuries at common law, abortion at any stage was to “no lawful
purpose,” and functioned as a kind of inchoate felony for felony-murder
pe
purposes. (emph. added)
Equally, of course, Tang ignores the evidence we gave for the distinction's reality and
practical significance. On p. 22, we cited its articulation by the great Chief Justice Shaw
of Massachusetts, in an 1845 case, which Tang actually quotes from (lower down on the
ot
same page of the report)—to which we added a more robustly worded articulation by
Hale in a passage often cited by pre-Amendment American courts and treatises (and
tn
quoted from below in our discussion of Iowa).

The Means-Roe-Tang theory that pre-quickening elective abortion (in any sense
of the highly ambiguous terms "quick with child" or "quick child"—see pp. 13-14 of our
rin
brief) was for centuries a legally recognized liberty (Means) or even more inaccurately a
right (Roe, Tang) and perfectly lawful (Tang, repeatedly) is a theory with no support
whatsoever in law or history. It ignores the many ways in which non-indictable conduct
ep
– such as elective abortion done pre-quickening (in some sense of "quickening," quite
possibly referring to animation at six weeks’ gestation, not Tang's 16 weeks) – was, for
all those centuries, well understood to be nonetheless unlawful. (Henceforward we will
Pr
take the word "elective" as read, and will assume the limited but real common-law or
statutory or constitutional exception for medical interventions intended to preserve the
mother from death or serious permanent injury.)
d
Setting aside for the moment the historical English and American instances of
we
indictments without a showing of quickening (such as against Captain William Mitchell
of Maryland in 1652), the unlawfulness of even pre-quickening abortion widely carried
legal consequences—indeed penalties. A first such consequence was articulated by
Shaw, Coke, Hale and their many American judicial followers, all emphasising,
vie
apparently without opposition, the fierce criminal law penalty of a murder conviction if
the abortion, though fully consensual, resulted accidentally in the death of the mother
and/or in the death of the child after its (his or her) expulsion from the womb alive
re
(however briefly) and showing signs of the abortifacient activity. That penalty hung
over all abortions and attempted abortions, from day one of the pregnancy. About that
there was no ambiguity in England or America. Tang's article completely ignores it,
er
because it invalidates everything he says about common-law (and post-common law)
“rights” to abortion.
Other legal penalties applicable to all abortion activity and preparation included:
pe
the voidness for illegality of all contracts for abortion services; the liability of every
place used for abortion to summary closure as a disorderly house, on pain of criminal
penalty for non-compliance; the criminality of advertising or publicly offering abortion
ot
services so described; the threat of indictment for conspiracy in relation to any of these
activities. Nothing of the sort could apply to activity that truly was regarded as a right.
tn
The state-count claim

We turn to what Tang calls the burden of his article, the attempt to show that the
list of 27 states prohibiting pre-quickening abortions should be reduced to say 15. We
rin
need not pursue the attempt very far, for as soon as it begins it miscarries. That
beginning is with "eight states where [pro-life] advocates assert pre-quickening
abortions were criminalized, but where the historical evidence flatly contradicts their
ep
claim." Tang lists them alphabetically, beginning with Alabama, Florida, Iowa,
Massachusetts. Those first four will suffice, for present purposes, to show how Tang
treats law and historical evidence where it bears on "pro-life claims."
Pr
Start with Florida. On August 6, 1868, the Florida legislature passed three anti-
abortion provisions. The first and second defined as manslaughter (1) the "wilful killing
d
of an unborn quick child, by any injury to the mother of such child which would be
we
murder if it resulted in the death of such mother;" (2) all measures taken "with intent
thereby to destroy" an unborn "quick child" and resulting in the death of the unborn
child or the mother, except where those measures were necessary (or advised by two
physicians to be necessary) to preserve the mother's life. The third provision made
vie
punishable with up to seven years imprisonment anything done "with intent to procure
miscarriage of any woman." Tang admits that this statute "punished both pre- and post-
quickening abortions." But he says it simply doesn't count for originalist purposes
re
because the 14th Amendment had come into force one month earlier – and "what is
more," Florida had ratified way back (two months back) in June!
The absurdity of Tang's idea of originalist interpretation could scarcely be more
er
clearly displayed. If a state legislature hastens to align its state's law with a new
constitutional provision, but does so a month after that provision had come into force
(at a date, indeed, over which that state had no control, and which no one could
pe
confidently predict in advance), Tang says its new law doesn't count at all as evidence of
how the constitutional provision was understood when the same state legislature.
debated and ratified it. A desperate way to change 27 to 26.
ot
In Tang's handling of the next three states, a different sort of desperation makes
its presence felt. Take the then perhaps most significant of them, Massachusetts.
tn
As Tang reports, the Supreme Judicial Court in 1845, in Commonwealth v. Parker,

reaffirmed per Chief Justice Shaw that under the common law governing the defendant
abortionist's trial in 1843, abortion was indictable only if the woman was "quick with
rin
child." As Tang neglects to report, the Court also expressly stated that (subject to the
usual necessity exception) every abortion was "without lawful purpose" and therefore, if
it resulted in the woman's death, a murder. And, as we record on a page of our Brief
ep
that Tang cites but ignores (p. 16), the Court "explicitly declined to hold" that "quick with
child" means what Tang assumes it means: the child's maternally-perceptible moving at
around 16 weeks. Finally, Tang omits to note that, undermining his claim that in
Pr
common-law thinking from Blackstone right down to 1868, quickening "marked the
moment at which abortion became morally culpable," the Court in Parker concluded by
saying that the abortifacient acts "not punishable at common law" were nonetheless "in
a high degree offensive to good morals and injurious to society."
d
But all these various omissions by Tang are far surpassed by his suppression of
we
the facts about the Massachusetts legislation of January 1845.
It will be helpful to have some background. Tang says that both Commonwealth
v. Parker and its 1812 Massachusetts precedent were "in the backdrop" of the
legislation. But Parker was decided in March, as noted in Tang's main source, James
vie
Mohr's 1978 book Abortion in America (to which we return below). Indeed, Tang
himself says that "the major impetus for the new 1845 statute" was another case, the
January 1845 murder trial and acquittal of two abortionists, a woman having perished
re
from the abortion she obtained from them. On a page cited but not quoted by Tang,
Mohr summarizes the Boston newspapers' reports of the acquittal:
On January 9th the Boston papers reported that the jury had acquitted both
er
Butler and Ballou. Unquickened abortion per se was not a statute crime in
Massachusetts under the common law, and the evidence would not support
murder charges. (emph. added)
pe
Whatever Mohr or his sources meant by "a statute crime under the common law," the
reported line of thought about non-criminal abortion and murder may have contributed
to Shaw's decision to write that paragraph in Parker, going out of the way to explain
ot
that at common law any abortion resulting in maternal death is a murder. And Mohr's
summary suggests what motivated the representative who five or six days after the
acquittal formally requested that the House Judiciary Committee "inquire into the
tn
expediency of enacting a law making of abortion a misdemeanor." On January 31, the

Governor signed into law the legislature's response, removing the common law's "quick
with child" restriction.
rin
For so the new statute was understood, seemingly by everyone, not least the
Court's reporter, Theron Metcalf – himself a Judge of the Supreme Judicial Court since
1848 when in 1853 he finally published Commonwealth v Parker and earlier, in the
ep
1830s, Chairman of the state's House Judiciary Committee – who stated in a note at the
end that "By [the statute] 1845 ch. 27 provision is made for the punishment of the
offence with which the defendant was charged in this case." The statute consisted of a
Pr
single clause and extended to all acts intended "without lawful justification" to procure
the miscarriage of "a woman then pregnant with child" (emph. added) That was the
phrase which operated to repeal the common-law restriction to women "quick with
child." But the single clause (a sentence unbroken by any period) provided for two
d
distinct offenses, one (a felony for which the abortionist would be subject to a
we
punishment of 5-20 years imprisonment) if the woman died "in consequence thereof,"
the other (a misdemeanor punishable with one to seven years) if the woman "doth not die
in consequence thereof." (emph. added)
Tang reports the first offense. Incredibly, he suppresses the rest of the sentence,
vie
the second offense, plain induced abortion – "abortion per se" as Mohr's Boston
newspapers had called it. Here are Tang's words:
The Massachusetts legislature reacted by codifying [Tang's odd word] its 1845
re
abortion statute with a special rule punishing one who administers an abortion
on "any pregnant woman" [Tang's phrasing, not the statute's] by up to 20 years
in prison "if the woman die in consequence thereof" (fn. Mass. Acts & Resolves,
er
ch 27 (1845)). The major purpose of the 1845 legislative enactment was thus
not to eliminate the state's settled view pertaining to quickening, but to create a
new penalty for abortion procedures that do not rise to the level of murder. Safe
pe
pre-quickening abortions, however, continued to be perfectly lawful in the state
up to the point of the Fourteenth Amendment's ratification.
This is a travesty. (And his words "major purpose" may suggest that Tang is aware of
ot
what he is concealing from his readers.) The statute's provision for abortion without
maternal mortality, withheld from readers by Tang, put beyond doubt when taken with
the defining words "a woman then pregnant with child" that the 1845 statute did
tn
indeed "eliminate the state's [formerly] settled view pertaining to quickening." Safe and
unsafe alike, any aborting of a pregnant woman not yet "quick with child" – never
"perfectly lawful in the state" – was now unequivocally an indictable and severely
rin
punishable offense. Quickening had its last bow a few weeks later, in Parker, but only in
relation to the trial of acts done before quickening was expelled from Massachusetts law
for ever on January 31, 1845.
ep
Tang goes on to compound his offense. He claims that quickening dropped out of
Massachusetts law in 1869 – safely just outside his Amendment cut-off-point – as a side-
effect or implication of an 1869 codification eliminating the need to allege or prove that
Pr
the woman being or proposed to be aborted was actually pregnant. But that extension
of criminal liability had nothing to do with quickening, which had been legally irrelevant
since 1845. And the amendment that Tang discusses – replacing "a woman then
pregnant with child" with "any woman" – was made not in 1869, as he repeatedly
d
claims, but as part of the four-year consolidation/codification exercise completed by the
we
legislature in December 1859, legally effective June 1860 (summarized accurately by
Witherspoon as 1860): see The General Statutes of the Commonwealth of Massachusetts
(Boston, 1860), p. 818 (c. 165, sec. 9).
So everything material that Tang says about Massachusetts law is – to use his
vie
phrase about "the 27-states claim" – simply wrong. And the state belongs indisputably
among the still intact 27.
re
With Alabama one has to follow a more stony route to discern the errors in
Tang's exposition and argument. But the errors illuminate a scene wider than Alabama,
and the road will become easier again when we reach Iowa.
er
In 1841 the Alabama state legislature reformed the common law so as to
criminalize measures taken with intent to "procure the miscarriage" of "any pregnant
woman." Nothing about quickening. What does Tang say? Speaking of Smith v. Gaffard
pe
in the Alabama Supreme Court in 1857, a tort action for impugning Smith's chastity by
alleging that she had "taken something to make her lose" her child, Tang says this:
...the Court came to address the crucial question for present purposes: under
ot
what circumstances would it be an “offense indictable by law” to allege that a

person had procured an abortion? Citing the 1841 Alabama abortion statute, the
state Supreme Court offered a clear answer: “[u]nless the words convey th[e]
tn
imputation” that “the woman was ‘quick with child,’” they “do not charge an
offense punishable by law.” In other words, [P] lost her tort claim because in
1857 Alabama, there was nothing illegal (and thus nothing impugnable) about
rin
the practice of pre-quickening abortion.

Tang goes on to upgrade this "clear answer" to "pellucid," and says it was "definitive"
that "as had been the case for decades in America dating to the founding, 'any pregnant
ep
woman' meant any quickened pregnant woman."

But the answer he calls "clear", "pellucid" and "definitive" has been engineered
by Tang, by jumping between four or five different sentences with quite different
Pr
subjects. In the passage we just set out, none of the words Tang puts in quotes relate to
the statute. Some of them refer to the common law, the others to Gaffard's remarks
about [P] (Miss Smith). The only thing the Court says about the statute is that it does
not make a pregnant woman's self-administration of abortifacients an indictable offense.
d
Neither the Court nor counsel said a word even hinting at the doctrine that Tang
we
elaborately foists on the case—viz., that statutes are controlled by the common law
unless they explicitly override it—or the unsupported principle or rule he claims to find
in the case, that "any pregnant woman," without more, meant, in post-founding
America, "any quickened pregnant woman."
vie
Alabama's 1841 provision was essentially copied from a New York statute of
1828 in which, as Tang himself accepts, "any pregnant woman" meant any and every
pregnant woman. In relation to identical provisions in another eight states too, Tang
re
happily accepts that "any pregnant woman" meant any pregnant woman. In those nine
states, however, unlike Alabama, there was in force a separate provision criminalising,
more severely, the aborting of "any woman with a quick child" when that results in the
er
unborn child's death (unless "necessary to preserve the life of such mother"). Alabama
made do with just one provision, applicable to "any pregnant woman," requiring no
proof of the child's death, and incorporating the "life of the mother" exception. Tang's
pe
claim is that a phrase which in nine states meant any pregnant woman, in Alabama
meant not any but only those who had "quickened" (to use Tang's word, absent from all
these provisions).
ot
Why did the Court move, as it did, from talking about indictability under the
statute to indictability under the common law? The premise of its whole discussion is a
peculiar doctrine of nineteenth-century common-law tort doctrine: imputations against
tn
chastity "are only actionable, when they charge the commission of an offense [i]
indictable by law, and [ii] drawing after it an infamous punishment, or involving moral
turpitude." Gaffard's allegations satisfied condition [ii], the Court explained, because
rin
"the procurement of an abortion, under circumstances not allowable by law, is an

offense involving moral turpitude." The important statement just quoted was borrowed
by the Court from an 1840 New York decision which it accepted, explicitly, as correctly
ep
stating the law in Alabama. (By "circumstances not allowable by law" these courts
mean: not falling within what is today called the "life of the mother" exception.) We will
return to the borrowed statement in a moment
Pr
Now Gaffard's remarks, though thus alleging "an offense involving moral
turpitude," did not allege an indictable offense. What he alleged Smith had done was not
10
anything indictable under the statute (the Court held), because the statute did not apply
to acts of the pregnant woman herself. And neither was it indictable under the common
d
law, because although that old law (formerly in force throughout America) did extend to
we
self-abortion, it did not apply when the aborted woman, though pregnant, was not yet
"quick with child". To our question why the Court discussed the superseded common
law, the answer seems to be that it was interpreting not the actual criminal law of
Alabama but that peculiar tort doctrine making certain defamatory statements
vie
actionable only if the conduct alleged was not only immoral and unlawful ("an offense")
but also indictable. The Court fails to make its train of thought fully clear, but it seems
to be accepting, at least for the sake of argument, that the tort doctrine's requirement of
re
indictability might be satisfied by indictability under either actual Alabama criminal law
or the former, pervasive common law of offenses. Much becomes clearer when we look
at Iowa, where the same pattern recurs a few years later: reforming criminal-law
er
statute; subsequent tort action for imputations alleging a self-abortion; court decision
recklessly asserted by Tang to concern quickening rather than self-abortion.
What Smith v. Gaffard does make expressly and illuminatingly clear is the falsity
pe
of Tang's thesis – more extreme and anti-historical than even Roe and Means – that for
American law-makers and judges (and Blackstone!), quickening, in the popular, c.16-
week sense deployed throughout by Tang, "marked the moment at which abortion
ot
became morally culpable." An essential holding of this 1857 Alabama judgment (with
its New York underpinnings) is that indictability is a narrower category than "moral
turpitude" and that abortions that, because self-induced, are non-indictable are
tn
nevertheless immoral and indeed are each an "offense." The judgment thus contributes
significantly to the mass of evidence falsifying Tang's essential and pervasive thesis,
that whatever was not indictable was lawful.
rin
Alabama stays among the 27.
What about Iowa? Mishandled even worse than Massachusetts.

ep
The Iowa Supreme Court ruled in 1860 that at least since the general codification
in 1851, no indictable offense could rest solely on common law; only crimes whose
punishment was provided for by statute could be prosecuted. So Tang is on shaky
Pr
ground in claiming that between 1851 (when the offense of aborting a quick child,
criminalized as manslaughter by a statute of 1843, was abolished in the codification)
11
and 1858 (when a statute criminalized abortions performed or attempted on "any
pregnant woman") "the practice [of abortion] was regulated by the common law."
d
Rather, there seems to have been a vacuum of regulation during those seven years, and
we
in 1856 the Iowa Supreme Court, in another tortious slander case (Abrams v Foshee),
declined to hold that abortion was indictable under the 1851 code's murder provision.
Tang radically misrepresents the legal position in Iowa post-1858. Reporting the
1858 provision criminalising actual or attempted abortion of "any pregnant woman" (a
vie
provision essentially like Alabama's), Tang claims that in 1863 the Iowa Supreme Court,
in Hatfield v. Gano, "unambiguously rejected" the obvious conclusion that "pre-
quickening pregnancies" were now criminal. He goes on:
re
The case was yet another slander action that turned on the question whether it
was illegal to obtain an abortion prior to quickening.
[No: it was yet another slander action turning, like Smith v Gaffard and Abrams v Foshee,
er
on whether a woman who aborts herself commits an offense – here an offense under
Iowa's 1858 statute. Tang continues:]
In answering that question, the Iowa Supreme Court recognized that the
pe
legislature had enacted a new act forbidding the administration of medicinal or
instrumental abortion to "any pregnant woman." But the Court declared that
"this act does not change the law from what it was when Abrams v Foshee was
ot
decided." Just as had been true in Iowa in 1856, it remained entirely lawful for a
pregnant person to obtain an abortion before quickening in 1863. {citations
omitted}
tn
The misrepresentation is gross. The sentence quoted by Tang as ending "when Abrams
v Foshee was decided", period, in reality ran straight on, with a comma, "in so far as it
relates to the acts of the woman upon whom the abortion was procured." The sentence
rin
next following emphasized that self-induced abortion was the issue:

In other words, if the procuring an abortion by the person pregnant, through any
means adopted by herself, was not a crime under the Code of 1851, it is not a
ep
crime under the act of 1858.

Quickening, pre- or post-, played no part in the appellate court's reasoning in Hatfield v
Gano. True, at the very end the Court mentions both the trial judge's direction to the
Pr
jury, which had said "the causing of abortion by the woman herself, before the child was
quick, is not a crime" [emph. added] and a consequent pleading point by appellate
12
counsel, again mentioning "quick". But as the appellate court had by then made clear,
the trial judge's words "before the child was quick" were mere surplusage. Certainly
d
they were words not discussed, let alone affirmed, by the appellate court, whose
we
essential position was that, under the 1858 statute, self-induced abortion by the woman
herself is not a crime whether or not "the child was quick".)
The reason why the 1858 statute, so interpreted, "does not change the law from
what it was when Abrams v Foshee was decided" is simple. At all times between 1851
vie
and 1858, self-abortion was not indictable. For during those seven years, no statute
made any consensual abortion indictable, nor were there any common law criminal
offenses in Iowa; and then from 1858, when statute repaired the big gap in abortion
re
law, it did not (so the 1863 court ruled) extend to criminalising self-induced abortion.
Tang's "unambiguous rejection" of pre-quickening criminal abortion is nowhere
to be found: he has imposed it on the text.
er
But that is not the end of his misrepresentation of the position in Iowa. Anyone
following Tang's basic argument will ask: Leaving aside its truth or falsity, why does the
above-quoted passage, which concludes Tang's remarks about Iowa, end with the words
pe
"it remained entirely lawful for a pregnant person to obtain an abortion before
quickening in 1863"? After all, only a page or so earlier, discussing Florida, he had been
insisting (as we saw) that the key date for listing states is July 9, 1868. Why isn't his
ot
conclusion about Iowa that pre-quickening abortion was "entirely lawful" there in
1868?
It is difficult not to suspect that he well knows, but wants his readers not to
tn
know, that in June 1868 the Supreme Court of Iowa, in the murder case State v Moore,
held that elective, consensual abortion was and had been seriously unlawful even in
eras or at times when it was not indictable – for instance, the common-law era (when
rin
abortions before the mother was "quick" were non-indictable) or the seven-year period
1851-58 (when no abortion was indictable in Iowa). The Court also approved, as "a
correct statement of the law of the land," the trial judge's direction, which began:
ep
To attempt to produce a miscarriage, except when in proper professional

judgment it is necessary to preserve the life of the woman, is an unlawful act. ... If
the death of the woman does not ensue from it, he [the person who does this] is
Pr
liable to fine and imprisonment in the county jail (Act March 15, 1858...)
13
The appellate opinion in Moore is cited in our Brief. The opinion has often been quoted,
because it eloquently affirms the common law's "all-embracing and salutary solicitude
d
for the sacredness of human life and the personal safety of every human being,"
we
including for these purposes "infants in ventre sa mere [in the womb]. 1 Black[stone]
Comm. 129," "as a general guardian holding its aegis to protect the life of all." Not only
is "the wilful and unnecessary procurement of an abortion" an act "abhorrent to all our
notions of sound morality," but it is also unlawful, even in cases where it is not, as such
vie
(per se), indictable:
Nearly two hundred years ago Lord Hale laid down the law as follows: "If a
woman be with child, and any gives her a potion to destroy the child within her,
re
and...it kills her, this is murder; for it was not to cure her of a disease but
unlawfully to destroy the child within her..." (emphasis added)
The fact that the murder indictment in Moore had alleged that the deceased pregnant
er
woman had been "quick with child" went unmentioned in the direction, in counsel's
arguments on appeal, and in the appellate opinion.
That opinion, 17 days before the Fourteenth Amendment's adoption,
pe
comprehensively demolishes Tang's wild central thesis that quickening marked the line
between what is criminal and what is "entirely lawful" (and moral! – and a domain of
legal liberty and right).
ot
And when the appellant in State v Fitzgerald, a decade later in 1878, included
among a slew of other hopeless grounds of appeal the plea that indictability under the
1858 statute required that the woman be "quick with child," the Court's two-sentence
tn
response summarily pointed to the statute's simple phrase, "any pregnant woman,"
adding just this: "The crime is complete if the attempt be made at any time within
pregnancy." No one suggested that any court or other authority had ever hinted
rin
otherwise, in relation to that statute, or to any of the statutes in other states that had
used that plain, unambiguous wording (as many did, right down to the Roe era). So
much for another wild, central thesis proposed by Tang.
ep
In short, Iowa remains very securely in the list of 27 states that prohibited
abortion at all stages of pregnancy by the end of 1868.
Pr
14
Enough. Four strikes and out. Glancing forward to the remaining four states in
Tang's eight-state list of primary targets for subtracting from the state-count list, we can
d
anticipate that his attempted subtractions will go on getting essentials wrong.
we
An addition to the list
Meanwhile, the widely used list should all along have run to 28. It missed Rhode
Island. Tang wrote that Rhode Island was a state for which “there is no dispute” that it
vie
“had not [in 1868] codified [= enacted] any statutory limitations on abortion.” If there
has been no dispute, that is because all concerned have been overlooking the state's
statute of March 15, 1861, which prohibited abortion and attempted abortion by any
re
means at any stage of pregnancy (or even supposed pregnancy). That statute – situated
within the criminal code’s “Offenses Against the Person” – provided (rather like Alabama
and Iowa): er
Every person who shall be convicted of wilfully administering to any pregnant
woman, or to any woman supposed by such person to be pregnant, anything
whatever, or shall employ any means whatever, with intent thereby to procure the
pe
miscarriage of such woman, unless the same is necessary to preserve her life, shall
be imprisoned not exceeding one year, or fined not exceeding one thousand
dollars. (Act of Mar. 15, 1861, ch. 371, §1, Acts & Resolves R.I. 133).
ot
Rhode Island ratified the 14th Amendment on February 17, 1867, and in the same
session, the following month, reviewed and re-enacted its 1861 abortion statute (its
first), adding the proviso that "the woman whose miscarriage shall have been caused or
tn
attempted shall not be liable to the penalties prescribed by this section." (By 1896 those
penalties had been significantly enhanced, with a minimum of one year's imprisonment.)
Tang, we know, is committed to holding that in Rhode Island like Alabama and
rin
Iowa, the legislators, courts and public, at the time of these enactments (until when?),
all understood "any pregnant woman" to mean "only those pregnant women who have
experienced quickening". But he gives no evidence that anyone thought this.
ep
"Quick" and "quickening"/ "quickened"

We conclude this brief preliminary rejoinder to Tang with a glance at his
Pr
discussion of our thesis that "quick with child" (and "with quick child") could and often
did mean, in law, something occurring much earlier than the "quickening" that denotes
15
movements felt by the mother not earlier than the 12th week, usually about the 16th, of
her pregnancy, movements standardly taken to be those of the therefore "quickened"
d
child.
we
Tang says "there are many responses to this argument." He offers one, and then
appeals to an evidence-free hypothesis about "what ordinary Americans would have
understood about the legality of abortion at various points in time in 1791." His one
argument is just an assertion: that Blackstone, when he spoke, in the famous, crucial
vie
passage, of "the child able to stir in the womb," had in view – obviously! – the maternally
perceived movements at around 16 weeks. Tang blandly ignores the empirical counter-
evidence we adduce, notably including an encyclopedia widely used in Blackstone's
re
youth recording that the common opinion then (in the 1730s) was that animation—
understood as a beginning, the coming to life of a new human embryo – occurs when the
woman is quick at around six (not 16) weeks (pp.13-14 n.32). The longer, article-
er
version of our Brief will quote also a later edition, current when Blackstone was writing
the Commentaries, where this sixth-week quickening is expressly associated with the
child's now being able to "stir". (Note also that Blackstone's cautiously says "able to,"
pe
not "felt to".) On the most probable reading, therefore, Blackstone meant that "in
contemplation of law," life begins about the sixth week of pregnancy. Tang, an
interpreter whose assumptions are more speculative than empirical, misconstrues him.
ot
And the enduring importance of this evidence is that it shows how the classic
pre-19th century common-law focus on the child's (and by transference of idiom the
mother's) being "quick" was really a focus not on evidence and proof of maternal
tn
experiences as proof of life, but rather on whether or not a human child had come to be.
So when the scientific evidence became undeniable that that beginning actually
coincided with the pregnancy's beginning, the law inevitably and rightly, even if
rin
gradually and unevenly, fell into line. Quickening in this classic and Blackstonian sense
(as well as in the more superficial 19th century sense that is Tang's exclusive concern)
thus dropped out (or was eliminated), subsumed and replaced by its scientifically
ep
genuine equivalent: conception and the initiation of a pregnancy. "Any woman quick
with child" was replaced by "any pregnant woman" – a change of rule, to be sure, but
with no change in the real underlying legal doctrine.
Pr
As for public opinion in 1791 (and 1868) about the legality of abortion, Tang has
placed all his trust, here as elsewhere, in James C. Mohr, Abortion in America (1978). He
16
proceeds as if innocent of the devastating scholarly rebuttals Mohr's work has received,
and the exposures of his partisanship, self-confessed but corroborated by his
d
misleading depictions of law, practice, and opinion alike. (For a balanced and revealing
we
summary, and a pointer to other evidence-based critiques, see John Keown, "Back to the
Future of Abortion Law: Roe's Rejection of America's History and Traditions" Issues in
Law & Medicine 22/1 (2006) 1-38.)
vie
The Historic Standard as a Truer Middle Way
Pending the full-length article version of our Brief, which will restore what had
re
to be abbreviated, and respond to Tang's and others' criticisms of the Brief, we add now
one observation about a middle ground and middle way truer than Tang's.
The quite unique physical relationships between the pregnant woman and the
er
unborn child justly permit and require the state to seek and identify a fair
accommodation of their interests and rights in which each is treated as a person, and
under which the responsibilities, commitments, and experience of mothers are
pe
acknowledged. The historic standard (centering on the kind of medical "exception" we
have mentioned above) was arrived at in the long era when the child’s right to life
(Blackstone's phrase) was acknowledged throughout America as more than merely a
ot
“state interest.” That standard permitted physicians to intervene with measures that
caused the unborn child’s death as a side effect, when those measures were medically
necessary to save the mother from death or serious permanent injury. Refined to
tn
reduce the vagueness of “necessary” by appropriately qualifying the degree of risk to

the mother as “serious,” it could appropriately be recognized as then and now a
constitutionally required accommodation of rights.
rin
The historic middle way recognized the humanity and personhood of the unborn
child, but also that child's unique dependency, and the developing and variable
relationships between child and mother, and the mother's unequally substantial
ep
responsibilities and experiences. As the set of state laws in force at the ratification of
the Fourteenth Amendment makes plain, it was a range-standard. On the one hand, it
did not exclude a state’s treating some abortions as murder, or treating all as
Pr
manslaughter or some other kind of homicide. But on the other hand, it did not prevent
17
states from treating abortion as sui generis, and attaching to it a wide range of non-
derisory penalties.
d
A proper post-Brown v Board application of Equal Protection will understand the
we
Clause in accordance with its original public meaning, freed both from the constraints of
early "purposive" interpretations (all artificial and unwarranted, and mostly soon
repudiated by the Court), and from the excesses of a "living" control by judicially
approved "contemporary values." It will inescapably involve some court-supervision of
vie
state laws (and/or of Congressional enforcement measures). Such supervision of the
Equal Protection rights of mother and unborn child could fittingly adopt the historic
range-standard, as a tried standard of civilized, respectful fairness between persons
re
each of whom is equally a person while unequal in so many other ways. The
civilizational principles presupposed by the Fourteenth Amendment – Treat like cases
alike and different cases differently; Treat others as you would wish them to treat you
er
(and to have treated you in the past) – remain as available to today's courts and
legislatures as to those who drafted and ratified the Amendment.
pe
ADDENDUM
As we mention in the prefatory note, Tang has now removed Iowa to the category of
ot
states that had clearly prohibited pre-quickening abortions. He has drastically

rewritten his discussion of Iowa accordingly. But in discussing Hatfield v Gano he
retains intact the first sentence of the remarkable four-sentence passage we quote on p.
tn
12 above, thus reaffirming its erroneous assertion that the case "turned on the question
whether it was illegal to obtain an abortion prior to quickening." Thus he retains the
poisoned fruit of his passage's now deleted third sentence, which wrongfully truncated
rin
a sentence from the judgment and thus kept from view that sentence's exclusive
concern with the law "in so far as it relates to the acts of the woman upon whom the
abortion was procured."
ep
He has also deleted that offending passage's fourth sentence, with its claim that
pre-quickening abortion was "entirely lawful" in Iowa in 1863 and its curious silence
about the law in 1868. His rewritten, brief discussion of Hatfield v Gano (a discussion
Pr
ambiguously described as "a contested reading") retains – and tries in footnotes to

bolster with decontextualized and misunderstood quotations – his multiply mistaken
18
claim that "the Court went on to discuss the continuing significance of the quickening
distinction, explaining that pre-quickening procedures were not a crime." This leaves
d
him in a confessedly puzzling position, from which he tries to extricate himself with two
we
arguments, one simply bizarre, the other scarcely open to him. The first is that the 1858
statute's maximum penalty, one year's imprisonment, "is far more consistent with a ban
that applied to the less culpable act of abortion before quickening." The reasoning is
bizarre and futile, because that maximum applied also to even the most culpable acts of
vie
late-term abortion, and there was no minimum for any abortions, late or early. For
Iowa's 1858 law there were simply abortions, all dealt with by a statute savoring of
excess leniency, as the legislature judged in 1882 when it raised the one-year maximum
re
penalty to five years' imprisonment.
Tang's second argument for reversing himself, and leaving Iowa in the "pro-life
advocates'" list of states prohibiting abortion at all stages in July 1868, is the Court's
er
decision in 1878, in State v Fitzgerald, which we mentioned in discussing Iowa on p. 14
above. He is right to think that the ease with which the Court disposed of counsel's
desperately belated appeal to the quickening distinction suggests that it was indeed
pe
simply abolished in 1858. But that is not compatible with retaining, as he does without
qualification, his mistaken claim that the Court in 1863 in Hatfield was still using
reasoning in which quickening has a role. Still less is it compatible with his general
ot
claim – a claim he tries to base on the genuine but much too high-level principle of legal
continuity – that unless a state's statutes made some reference elsewhere to quickening,
the simple use of a phrase such as "any pregnant woman" would, and did, leave in place
tn
the common law distinction between quick and pre-quick. And, finally, there is
something historiographically odd about his "belief" that an appellate court's two-
sentence disposal of the quickening issue in 1878 "provides the closest insight into
rin
what the Iowa public would have understood to be true about access to pre-quickening
abortion at that earlier time" (1858? 1863? 1868?).
Since Tang has removed Iowa entirely from his list of "twelve states that pro-life
ep
originalists mischaracterize," and of course from the inner list of "eight [now seven]
states where those same advocates assert pre-quickening abortions were criminalized,
but where the historical evidence flatly contradicts their claim" [the "flatly" is now
Pr
cautiously removed], we provide some compensation for this loss of a target by briefly
19
examining what he continues to say about another important state that remains on the
chastened inner list: New Jersey. It is another good sample of his methods.
d
For his part, he says that "The inclusion of New Jersey in the pro-life originalist's
we
27-state count brings to mind multiple kinds of mistakes seen in previous states." Yes,
indeed; but mistakes on whose part?
He begins by noting the 1849 Supreme Court of New Jersey ruling in State v
Cooper (discussed in our Brief at pp. 16-17 and nn. 37-45), that consensual abortion is
vie
not indictable "unless the mother be quick with child." He then mentions the abortion
statute "codified" by the state legislature "shortly after Cooper was decided," and says:
One would thus be reasonable to ask whether the 1849 law, by applying to any
re
procedure performed on any "woman then pregnant with child," meant to
abrogate Cooper's recognition of the quickening distinction.
In an 1858 decision, the Supreme Court answered this question with a
er
resounding "no."
Suffice it to say that Tang has utterly misunderstood this 1858 decision, State v Murphy,
which answered the question with an unequivocal "yes, even if largely for the sake of
pe
women."
The case concerned the question whether in a prosecution for advising a woman
to take an abortifacient, it must be pleaded and proved that she took it. The Court
ot
makes rather heavy weather of this, but safely reaches the obvious answer, No. The
Court did indeed inquire into what it called "the mischief designed to be suppressed by
the act," but Tang misconstrues its answer. His whole discussion of Murphy quotes from
tn
just one sentence, which he splits up into separated fragments. He says that according
to the Court–
it was enacted to correct the common law's failure 'to guard the health and life of
rin
the mother against the consequences of [abortion] attempts'. ... The Court also
explained what the state's 1849 abortion law did not do: "[T]he design of the
statute, the Court wrote emphatically, "was not to prevent the procuring of
ep
abortions." [Tang's emphases.]

Tang should have emphasized, if anything, only the word "procuring," and should have
quoted the whole sentence without eliminating four little words important to its
Pr
meaning and place in the reasoning; he should unquestionably have quoted the two or
three sentences immediately following it; and he should abandon use of the historian
20
James Mohr as a guide to interpreting statutes or any other matter of legal reasoning.
By instead proceeding as he does, Tang within a few lines reaches his conclusion (the
d
end of his whole discussion of New Jersey): "Safer, pre-quickening procedures remained
we
lawful under the common law view." He means, under the common law view retained
(he thinks) by the statute, which thus (on his reading) "[flatly] contradicted" the pro-life
originalists' claim that New Jersey was in 1868 among the 27 states prohibiting pre-
quickening abortions.
vie
Correctly worded, the Court's sentence that Tang part-quoted with emphasis but
in fragmented, re-ordered form, and its next three sentences, read thus (with emphases
added):
re
The design of the statute was not to prevent the procuring of abortions, so much
as to guard the health and life of the mother against the consequences of such
attempts. The guilt of the defendant is not graduated by the success or failure of
er
the attempt. It is immaterial whether the foetus is destroyed, or whether it has
quickened or not. In either case the degree of the defendant's guilt [under the
statute] is the same.
pe
Thus, unequivocally, the Court affirms that under the statute of 1849 in force in 1858
and 1868, pre-quickening abortion was just as criminal as post-quickening – the whole
distinction was eliminated from the law.
ot
No need to lay out and discuss here the Court's needlessly complex and slightly
unbalanced reasoning about the way that at common-law the non-indictability of pre-
quickening abortions had the bad side-effect of leaving abortionists and counsellors of
tn
abortion free from direct criminal liability for activities and advice that endangered
women who sought their services and counsel. Murphy makes plain beyond a shadow
of doubt that, whatever the legislature's motivations, the statute meant what it said and
rin
criminalized abortions at all stages of pregnancy.

Murphy provides a final nail in the coffin of Tang's preposterous thesis (which he
deploys in relation to other states that we have not needed to discuss) that the common
ep
law was presumed in 1858 or 1868 to control the terms of reforming statutes, and to
make "any pregnant woman" mean any woman who has reached 16 weeks of
pregnancy.
Pr
New Jersey too belongs very securely within the 27.
21
FURTHER ADDENDUM
d
In response to the above critique, Aaron Tang posted a further revised version
we
on September 23, making excisions and additions, but retaining all his main theses
intact. This Further Addendum notes the changes, and comments on the responses he
has offered. His excisions and changes silently accept the soundness of much of our
critique. More importantly, the responses all manifestly fail.
vie
We then take the opportunity to review Tang's treatment of all the groups of
states that he has identified for his own scheme of counting. In "The big picture, at the
end, we summarize the reasons his whole "27 state-count" enterprise was bound to fail
re
completely. The review will bring to light many further gross errors of fact and legal
analysis. More fruitfully, perhaps, we also take the opportunity to say something about
the differences between originalism as Tang understands it and the approach to original
er
public meaning that we deploy.
Our "stunning concession"

pe
Near the beginning of his response, Tang notes that we dealt with Alabama,
Florida, Massachusetts and New Jersey, but "do not discuss by name the eight other
states on which we apparently disagree." He continues immediately–
ot
Instead their argument for these eight other states appears to be founded on
what can only be described as an obscure distinction. A pre-quickening abortion
performed in these states, Finnis and George admit in a stunning concession, was
tn
"non-indictable conduct." [fn. [Finnis/George] at.4]. But this same non-indictable

conduct was, they also claim, somehow "understood to be nonetheless unlawful."
[fn. Id.]. This bears repeating because it is so important. The vast majority of
rin
Finnis and George's current position – and the entire basis for their claim that
eight states belong on the list of those that banned pre-quickening abortion – is
founded on the curious argument that even though the public correctly
ep
understood pre-quickening abortion to be "non-indictable," the procedure was

still "unlawful." (emphases added, save unlawful in line 5)
We will take up first the point Tang is making in the last three lines, beginning "the
Pr
curious argument...," before turning (p. 25) to the remarkable claims we have italicized.
22
Yes indeed, we have no doubt that "the public" – even those (in some places
fairly numerous, in others not) who were willing to seek, suggest, excuse and wink at
d
abortions – did correctly understand (in states that had not yet reformed their law) that
we
the position was precisely as we have described it: that although early abortions were
not as such subject to prosecution and punishment ("indictable"), they were unlawful in
the senses and ways we have described at p. 5 above, in the paragraph beginning "Other
legal penalties...."
vie
Tang ignores that paragraph, and tries to make light of the paragraph that
precedes it, which sketches some of the other grave legal penalties, notably the murder
or other homicide convictions that await any abortionist, however skilful and careful, if
re
the woman dies, say of the septicaemia or peritonitis that no one in those times knew
how to prevent, or (as Tang averts his eyes from) if the child, however small, shows
signs of life, however briefly, after the induced miscarriage. It seems not to concern
er
Tang that everyone legally informed knew that the highest legal authorities described
early abortions as both non-indictable and not lawfully done. Tang says that the
homicide penalty if the mother dies
pe
establishes the unlawfulness of something, namely botched procedures that kill a
patient. But how would the penalty establish the "unlawfulness" of a safe
abortion that produces no such tragic outcome?
ot
It is Tang's analysis that is botched. The common law knows nothing of a “perfectly
lawful” action that becomes unlawful retrospectively depending on chance outcomes
such as septicaemia. To the common law's way of thinking, dangerous instances of
tn
unlawful conduct and grossly negligent instances of lawful conduct were the two ways
in which conduct becomes indictable as manslaughter if by chance it results in death.
Each involves unlawfulness: the first, unlawfulness in kind; the second, unlawfulness in
rin
performance; and typically neither will be indictable unless it chances to result, not just
in injury, even life-altering injury, but in death (of mother or child). Actual lawyers
thought like Sir Matthew Hale, in the passage we quoted from above at p.14, from the
ep
Iowa pre-14th Amendment case of Moore, where the Court is quoting Hale's words
about abortion of any woman "with child" whether quick or not, where the woman dies
as a result:
Pr
"...this is murder; for it was not to cure her of a disease but unlawfully to destroy
the child within her..."
23
For brevity we left off (on p. 14) the final words of Hale's passage; now, since Tang has
still not attended to the relevant evidence of how lawyers actually thought – lawyers
d
like those who drafted the 14th Amendment and dominated the processes of its
we
ratification – we add back the words that show how the unlawfulness precedes the
outcome that makes it indictable. Hale:
"...this is murder; for it was not to cure her of a disease but unlawfully to destroy
the child within her, and therefore, he that gives a potion to this end must take
vie
the hazard, and if it kills the mother it is murder." (emph. added)
The Iowa court in Moore supplements or explicates this with a doctrine (found also in
Blackstone, 4 Comm. 200-201) of the implied malice of the act when done, prior to its
re
lethal outcome if that occurs; it states the legal principle: "any act unlawful and
dangerous in its nature, unjustifiably committed" will be criminal homicide if by chance
it results in death; and it applies, as Hale and the common law tradition plainly held it
er
did, to abortion at any stage of gestation, and however skilfully and carefully performed.
Tang finds the distinction between unlawful and indictable curious, and speaks
as if he had never come across it. As he tweeted expressively on September 21:
pe
They suggest (at 5) that b/c an abortion provider could be prosecuted for
murder if a pre-quickening procedure killed the MOTHER, the pre-quickening
abortion procedure itself must've ALSO been "unlawful." Huh? 5/9
ot
We didn't "suggest" that it "must have been." We reported that great masters of English
and American law ruled that it was, using precisely the distinction between the
indictable and the unlawful that Tang implies is news to him. We quoted them.
tn
To no effect. Tang wants to settle this phase of the argument by brushing aside
the views of those who drafted and ratified the 14th Amendment and instead finding
the Amendment's original meaning in the beliefs of –
rin
persons who sought access to an abortion. To such persons, the question is

whether an ordinary pre-quickening procedure could be performed without
triggering criminal punishment. And in the 21 states discussed in this Article,
ep
the answer to that question was "yes" when the Fourteenth Amendment was
ratified.
Pr
24
Yes, but the ratifiers presumptively were not people seeking access to abortion. Indeed,
a good many of them were interested – like the court in Moore, 17 days before the
d
Amendment came into force – in the law's "all-embracing and salutary solicitude for the
we
sacredness of human life and the personal safety of every human being," solicitude
expressed in many ways besides indictment under the old, in the last analysis defective
and certainly outdated, common law of crimes. (On whether human beings in the womb
need have been actually in these drafters' and ratifiers' minds during the deliberations
vie
on the Amendment, we say more below (pp. 48-51), when touching on Tang's crabbed
and eccentric "originalism.")
So we return to the italicized bits of Tang's passage quoted on p. 21 above, about
re
our p. 4's supposed stunning concession that pre-quickening abortions were non-
indictable in what he calls the eight states still (after our Preliminary Rejoinder) in
dispute between us. As readers can easily verify – and are invited to, to understand
er
better Professor Tang's way of reading – we made no concession about anything on or
near p. 4, least of all about those eight states. We finished our Preliminary Rejoinder
not having had time even to read Tang's detailed discussions of those eight thoroughly,
pe
let alone investigate the sources and arguments he there deployed. So, when we had
dealt with four of the states on Tang's list of 12, and demonstrated his pervasive error
(or, as to Florida, absurdity), we said (p. 15):
ot
Enough. Four strikes and out. Glancing forward to the remaining four states in
Tang's eight-state list of primary targets for subtracting from the state-count list,
we can anticipate that his attempted subtractions will go on getting essentials
tn
wrong.
Four "strikes" became, in the Addendum, five (pp. 18-21). And the reference to "Tang's
eight-state list" was not to the eight states in the present Tang passage; it was to the
rin
eight that, in his original list of 12 states to flip, Tang marked out as (to paraphrase him)
slam-dunk pro-life errors, and distinguished from the four (now five) that he thought
more arguably or marginally flippable.2 And the point is: our anticipation was correct.
ep
As we will now show, not just in relation to the five already dealt with, but in relation to
all 12 (or 13) states Tang tried to flip, his efforts all failed, and many were sheer
blunders (Massachusetts, Iowa, New Jersey, even Alabama.... and then on through Texas
Pr
and West Virginia...). The "pro-life advocates'" list stays at 28.
25
d
we
vie
re
2
In 1868 there were 37 states. Witherspoon reported that "in 1868" 27 of them made
abortion at all stages a punishable offence.
Tang at first (Sep. 13th) claimed that Witherspoon had mischaracterized 12 of the
27, eight of them certainly (viz. **Alabama, Florida, **Iowa, **Massachusetts,
er
*Nebraska, **New Jersey, *Texas, *West Virginia), four only probably (California,
Illinois, Louisiana, Nevada). Then on Sep. 16th he removed Iowa from the eight (thus
now seven) and admitted that it did indeed make abortions punishable at all stages of
pe
gestation; but at the same time he added Oregon to the four (now five) probably
mischaracterized. We here italicize the states he originally or later said had been
mischaracterized.
All along, Tang accepted that Witherspoon had correctly admitted that 10 states
punished only post-quick abortions (37-27=10), and agreed with Witherspoon's
characterization of 15 states as punishing pre-quickening abortion (before July 9,
ot
1868): Kansas, Michigan, Missouri, New Hampshire, New York, Ohio, Pennsylvania,
Virginia, Wisconsin; Maine, Maryland, *Indiana, *Vermont; Connecticut; to which he
added Iowa (27-12=15; 28-12=16).
tn
Having showed that Tang had blundered in the four double-asterisked** states,
and that he had applied an absurd test to Florida, we called a halt. In the present
version of our paper, with its Further Addendum, we trudge through the remaining
italicized states (plus two unitalicized) and show that in all the 14 bolded states
rin
(7+4+1=12+2=14) Tang has erred – by blunder in those single- or double-asterisked.

And it happens that Rhode Island was mischaracterized both by Witherspoon
(following Quay?) and Tang, so the 27 becomes 28, and 15 (agreed states) becomes 16
(28-12=16).
That leaves 9 (37-28=9) states that, it seems, did not criminalize "pre-quickening"
ep
abortion as such, until the respective dates in parentheses: Delaware (1883), Georgia
(1876), Kentucky (1910), North Carolina (1881), South Carolina (1883), and
Tennessee (1883), because they retained the common law (as Rhode Island was
mistakenly assumed to have); plus Arkansas, Minnesota and Mississippi, where the
Pr
statute criminalising abortion used "quick" as a threshold. Mississippi (in 1839 one of
the first states to reform the common law) did not fill this last gap until, it appears,
1942, but Arkansas' statute was amended to fill it in 1875, Minnesota's in 1873.
26
We turn to states discussed by Tang but not examined in our paper or its first
Addendum. From here on, we take as text the version Tang posted on September 23rd,
d
with an eye, as best we can, to possible changes made in the revisions he posted on
we
September 25, 27 and 30.
Tang's headline characterization of the first of these groups is this: "Ten [he now
means Nine] States Everyone Agrees Recognized A Pre-Quickening Right to Abortion." But
vie
all the "prolife advocates" Tang has in view deny what Tang claims "everyone agrees."
So too do many critics of Means and Roe. All of us deny that at common law there was
ever a "right to abortion" at any stage, however early, of pregnancy or gestation, or ever
re
any "liberty." Every attempted elective abortion was unlawful, though no such attempt
was an indictable criminal offence unless at the time of the attempt the woman was
"quick with child" (or "with a quick child"), or she happened to die from the attempt, or
er
the child however young died after being born discernibly alive however briefly. Even
Witherspoon's 1985 article3 on statutes, so often cited by Tang, makes this elementary
point about the common law clear enough.
pe
So Tang blunders when he says "Pro-life originalists are accordingly correct to
concede that the public in these nine states would have understood pre-quickening
abortions to be lawful as at the Fourteenth Amendment's ratification." Non-indictable
ot
as such, yes. Lawful or a liberty, no. A legal right, not at all.
There is a second group of states about which there is no dispute between Tang
tn
and the pro-life originalists concerning their enumeration – their places in the various
lists. It is "[The 16]4 States That Prohibited Pre-quickening Abortions." But Tang's
inclusion of Indiana and Vermont in this group is, for his purposes, a blunder, and in
rin
each case a highly instructive one.

ep
Pr
3James S. Witherspoon,"Reexamining Roe: Nineteenth-Century Abortion Statutes and the

Fourteenth Amendment," 17 St. Mary's L.J. 29 (1985) at 32.
4 Named in n. 2 above (list beginning with Kansas).
27
Indiana presents a problem for Tang, because its 1835 statute (misdated twice
by Tang to 1838) criminalized (subject to the usual life-of-the-mother exception) every
d
attempt to abort "any pregnant woman." (Tang quotes this as "any pregnant person".)
we
So if one counts Indiana among the 16 states uncontroversially prohibiting pre-
quickening abortion, one should equally count any state as prohibiting pre-quickening
abortion if it uses the formula "any pregnant woman" and makes no reference to "quick"
elsewhere in its statute(s). But then Tang's entire venture of changing 28 to 16
vie
collapses – unless he can find some reason to differentiate Indiana.
He does so by asserting that the inclusion of pre-quickening abortions in the
criminal prohibition took place not in 1838 (1835) but in 1852, by a route substantially
re
the same as that described (see pp. 8–9 above) in his erroneous claim that
Massachusetts' 1845 statute came similarly to include pre-quickening abortions "in
1869," as a side-effect of eliminating the need to prove pregnancy.5 In relation to

er
Indiana, however, Tang asserts that essentially the same amendment – eliminating the
need to prove pregnancy – had not merely the effect but actually a purpose of
pe
criminalising pre-quickening abortions:
Three other states extended their criminal bans to pre-quickening abortions by
inserting a different kind of clause. In 1852, Indiana lawmakers reacted to what
they perceived to be a problem with their existing, 1838 abortion prohibition.
ot
Under the 1838 law, it was illegal for any person to “willfully administer to any
pregnant person any medicine . . . or use or employ any instrument . . . to procure
tn
the miscarriage of such woman.” By 1852, however, Indiana lawmakers decided

to amend the statute because the law as drafted did not apply to abortions
performed before quickening.[fn. See Mohr, supra n. 85 at 141] So the
rin
legislature revised the law to reach abortions performed on “any pregnant

woman, or to any woman whom he supposes to be pregnant.” (emphases added,
save those in the last line)
ep
5
Pr
Tang SSRN Sep. 23/25/27/30, pp. 38-39: "Pre-quickening abortion would have also been
illegal under this new provision. Prior to its enactment, however, pre-quickening abortions
continued to be legal." Tang's rejoinder of Sep. 23/25 ignores our demonstration that this "new
provision" dated from 1860, not 1869, so that Massachusetts must be correctly counted as one of
the pro-life 28.
28
Mohr, Abortion in America, at p. 141, is thus Tang's sole authority for his implausible
claim that "the law as drafted [in 183[5]] did not apply to abortions performed before
d
quickening," and presumably also for his claim that in 1852 Indiana lawmakers were
we
reacting "to what they perceived to be" that problem.
Readers will by now be unsurprised to find that Mohr not only does not support
but implicitly contradicts Tang's claims – which thus prove to be matters of imagination
and wishful thinking, not history. For Mohr at the cited page says:
vie
Indiana had first inserted abortion regulations into its criminal code in 1835.
Like other laws passed during that era, the Indiana provisions could not easily be
applied to abortions prior to quickening and were essentially never enforced. A
re
code revision in 1852 had tightened the language in an effort to get around the
necessity of proving pregnancy, but the burden of proving intent still remained.
(emph. added) er
Mohr is quite clear (and his opinion, in this case, is obviously correct): the 1835
provisions did apply, as a matter of law, to pre-quickening abortions; but they were "not
easily applied," as a matter of trial or prosecutorial practice, because pregnancy had to
pe
be proved, which is not easy in relation to early pregnancy. So it was (in Mohr's words)
"in an effort to get around the necessity of proving pregnancy"– not, as Tang imagines,
in an effort to make the statute for the first time "apply to abortions performed before
ot
quickening" – that the 1835 language was tightened in 1852 (by adding the words "or to
any woman whom he supposes to be pregnant").
Tang's sheer mistake about Indiana leaves him unable to differentiate it from any
tn
other state that criminalized aborting "any woman," "any pregnant woman," or "any
woman then pregnant with child," while making no reference anywhere else to
quickness. That is, the mistake leaves his whole venture teetering on the brink of
rin
dissolution.
What about Vermont? After all, as Tang says, "Vermont lawmakers matched
ep
Indiana's nearly verbatim" –

Like in Indiana, a prior abortion regulation in Vermont had been ambiguous on
the question of whether it departed from, or instead retained, the common law
Pr
privilege for pre-quickening abortions. More specifically, Vermont’s 1846 law

proscribed the act of “maliciously” administering a poison or using an
29
instrument to “procure the miscarriage of a woman, then pregnant with child.”
Courts had interpreted the italicized language to mean a pregnancy where
d
the child had quickened. [fn. See supra nn. 112-122 (collecting cases)]
we
So Vermont legislators amended the provision the year before the Fourteenth
Amendment’s ratification, extending it to punish persons who administer a
procedure on “any pregnant woman, or any woman supposed by such person to
be pregnant.” Just as in Indiana, the effect was to eliminate the ability of a woman
vie
to obtain an abortion prior to quickening. (bolding and underlining added)
Tang's claim, in the words bolded and the word also underlined, is unambiguous: the
re
purpose of the 1867 revision was to extend the criminal prohibition to pre-quickening
abortion, because "courts had interpreted" the statutory words "a woman then pregnant
with child" to "mean a pregnancy where the child had quickened."
Which courts? Tang replies in the footnote (on Sep. 23 n. 157, by Sep. 30 n. 159)
er
supplied to authenticate his claim: "See supra nn. 112-122 (collecting cases)." So first
we will look at the 10 cases he thus cites in support of this claim, so fundamental to his
pe
whole article. These having proved to be irrelevant or unsupportive, we will look at the
only relevant case – a Vermont case mentioned by Mohr in his book but not by Tang
(since it demolishes Tang's claim).
First, then, we look at Tang's fnn. 112-122 (originally 82-92; later 85-95). There
ot
he collected cases illustrating propositions exclusively about the law "under the
common law then in force" (in Massachusetts, 33 years before its first abortion statute),
tn
or about the common law as recalled in judicial reasoning in courts of last resort in
another nine states, courts that all (Tang was claiming) "agreed that the common law
had embraced the fetal movement quickening line all along" (emphasis added).
rin
Moreover, of the ten cases there cited, five are for a further reason irrelevant to what
"courts had interpreted" prior to Vermont's 1867 reform, because they were decided
between 12 and 40 years later. That leaves just three out of the ten Tang offered, in
ep
relation to the motivations of the Vermont reform.

One of the three is from another New England state, Maine, in 1851: Smith v
State. It gets nowhere near the question whether a statute's reference to "any pregnant
Pr
woman" or "a woman then pregnant with child" could be read down to preserve the
common-law distinction between pre- and post-"quick." Indeed, the question could not
30
have been relevant in Maine, where the 1840 statute in force in 1851 read "any woman
pregnant with child, whether such child be quick or not." That leaves just two cases, the
d
two tort cases we discussed: Abrams v Foshee from Iowa (pp. 12-13 above) and Smith v
we
Gaffard from Alabama (pp. 9-11 above).
Abrams v Foshee is simply irrelevant to the interpretation of abortion statutes. It
was decided during, and concerned, the seven-year period when Iowa had no abortion
statute. By the time we published the Preliminary Rejoinder (dealing with Iowa and
vie
this case at pp. 12-13 above), Tang had abandoned his September 13th discussion of
Iowa, with its shocking mishandling of the later Iowa tortious slander case Hatfield v
Gano (pp. 12-13 above). (He retained the claim that during the seven-year gap in
re
statutory regulation "the practice [of abortion] was regulated under the common law," a
claim that is not true except to the extent that we are right to point to the regulatory
effect of all the legal "penalties" that at common law accompany elective abortion
er
whether or not it is indictable as such. For, as Hatfield v Gano and State v Moore made
plain in 1863/8 (pp. 13-14 above), no crime had been indictable under the common law
in Iowa after 1851.)
pe
As for Smith v Gaffard, our critique of Tang's handling of it left aside the
paragraph (immediately preceding the one we quoted from him on p. 9) in which Tang
inverts the Court's reasoning about moral turpitude and indictability: contrary to Tang's
ot
reading, the Court clearly affirms that an act can be an offense involving moral turpitude
without being indictable (while insisting that the tort liability in issue requires also
indictability). We examine below (pp. 36-43) Tang's attempted response regarding
tn
Alabama and regarding this case. Suffice it to say now: there is no reasonable way of
reading Smith v Gaffard as holding, or even hinting, that the common law precondition
for indictable abortion, that the woman be "quick with child," could (let alone did)
rin
control the meaning and reach of Alabama's 1841 statute criminalising the aborting of
"any pregnant woman."
So the 12 "collected cases" dwindle to zero, rendering baseless the inherently
ep
implausible—indeed, fanciful—claim Tang makes, that when Vermont in 1867 extended

the definition of abortion by supplementing "to any pregnant woman" with the
alternative, "or to any woman supposed by such person to be pregnant," it did so
Pr
because, in his words, "Courts had interpreted the italicized language to mean a
pregnancy where the child had quickened." There were no such court cases, and the
31
obvious and sufficient reason was simply to lessen the prosecutorial burden of proving
pregnancy. And now it is time to turn to the Vermont case that directly falsifies Tang's
d
entire consideration of Vermont.
we
In State of Vermont v Howard, 32 Vt 380 (1859), where the primary question was
whether the prosecution need prove that the child was alive in the womb at the time of
the unlawful inducing of miscarriage, the Supreme Court of Vermont, after comparing
the state's 1846 statute with the English criminal abortion statutes of 1803, 1837 and
vie
1851, held (at 400) that–
But under our statute it is expressly required, to constitute the offence, that the
attempt be to procure the miscarriage of a woman "then pregnant with child." ...
re
... So that the only new question arising under our statute is, whether it is
essential to the pregnancy or "being pregnant with child," that the child should
be still alive. It is not claimed that it is necessary the embryo should have
er
quickened. The general form of expression "pregnant with child," seems to
have been used to escape all question of this kind. and have it clearly apply
to every stage of pregnancy, from the earliest conception; and if so, we see
pe
no reason why it should not extend through its entire term, until the expulsion.
of the foetus.
No exegesis is needed. The Court, so far as it goes, directly contradicts all Tang's
ot
speculative exegesis of the Vermont statute and all his speculative history of its 1867
amendment's purpose and effect.
We should note that this 1846 statute, thus unequivocally applicable "to every
tn
stage of pregnancy, from the earliest conception," carried and retained in 1867 a
minimum prison term of 1 year (maximum three).
rin
None of these stark and fundamental mistakes by Tang disturb the place of
Indiana and Vermont where he correctly locates them: states to be firmly located on the
"pro-life list" of states punishing pre-quickening abortion. But, as we will show, the
ep
mistakes do entail that Tang's efforts to flip 12 states right out of that list will all fail – at
first one by one and then all in a rush. (See pp. 37-44 below on Alabama; pp. 66-70 on
the final five states.)
Pr
32
Before looking at the eight (3+5) that remain after our Preliminary Rejoinder
showed that his first five attempts had all failed, we should look at his new reply in
d
relation to the remaining four of those five: Massachusetts, Florida, Alabama, and New
we
Jersey. (He pre-emptively reversed himself on Iowa.)
Massachusetts again is the most illuminating. The first thing to say is that
Tang's reply to us cannot possibly affect our demonstration that Massachusetts belongs
vie
among the pro-life 28. He himself holds that by removing the need to prove pregnancy
the legislature had "also" criminalized pre-quickening abortions. Relying, it seems, on a
typo by Eugene Quay in 1961, Tang insisted that this removal/extension occurred in
re
1869 (after the "ratification of the Fourteenth Amendment"). We showed (p. 8 above)
that the change was adopted by the Massachusetts legislature in December 1859 and
took effect in June 1860. Tang's reply does not contest this. So Massachusetts stands
er
among the 28, come what may.
But Tang does contest our showing that pre-quickening abortion had been
criminally punishable in the state since January 31st, 1845:
pe
They assert that this language ["any woman then pregnant with child"]
"remov[ed] the common law's "quick with child restriction." But that is
impossible to square with the fact that data over the ensuing decade in
ot
Massachusetts reveal not a single conviction of a provider for performing a pre-

quickening abortion [fn. See Storer, supra n. 210 [= Horatio Storer, "Criminal
Abortion: Its Prevalence...[Tang gives the full 4-line title]," Atlantic Medical
tn
Weekly Vol/ VIII, No. 14 (Oct. 2, 1897) [no page reference].] (emphases added)
Finnis and George ignore this inconvenient truth...
rin
No. The really inconvenient truth is that Tang has no data whatever on the number of
convictions for pre-quickening abortion. So he has no fact "impossible to square" with
the criminalization of pre-quickening abortion as part of the criminalization of elective
ep
abortion of any pregnant woman. The reason there are no data about conviction rates
for pre-quickening abortion is that, as from February 1845, abortions were prosecuted
without reference to quickening. For, contrary to Tang's central claim, quickening was
Pr
completely irrelevant in Massachusetts law after January 1845. Tang's misleading

statement that there were no convictions "for performing a pre-quickening abortion" is
33
verbally true, but only because (according to the "data" he cites) there were no
convictions for performing an abortion at all, despite there being (as Tang carefully
d
refrains from mentioning but Storer reports at p. 211 of the 1897 article Tang cites) no
we
fewer than 32 abortion trials in Massachusetts between 1849 and 1857.6 The data that
Storer gives are compatible with all – or half or none – of these 32 trials being for pre-
quickening abortion in a decade when Tang is claiming people in Massachusetts had a
“perfect liberty” and “right” to carry out pre-quickening elective abortions. The data
vie
appealed to by Tang are perfectly compatible with everything we said about the
statute's obvious public meaning and legal effect as replacing the common law – neither
codifying nor continuing it even in part.
re
Tang has another a priori argument about the meaning and legal effect of the
1845 statute. "The second clause" – that is, the clause he omitted7 to draw to his
6
er
Horatio Storer gave those data in the 1897 article cited by Tang:
There had been thirty-two trials in that state [Mass.] for abortion from 1849 to 1857, and
pe
not a single conviction.
Storer had already given the very same data (sourced from annual reports of the Attorney-
General) in 1860, in his On Criminal Abortion in America (Philadelphia, 1860), 29 {"During the
eight years from 1849 to 1858, no report for 1853 being rendered by the Attorney General, there
were 32 trials for abortion in Massachusetts, and in these there was not a single conviction");
recycled in Storer's expansion of that book, co-authored with a Boston lawyer, Franklin
ot
Heard, Criminal Abortion: Its Nature, Its Evidence, and Its Law: Its Nature, Its Law (Boston,
1868), 54. The statistic does not cover 1858 itself, when Dr Robert Wood was convicted of
aborting his mistress. The facts recited in the report leave little doubt that it was an abortion
carried out long before quickening in Tang's sense, though nothing turns on that for present
tn
purposes. Storer and Heard p. 138 notes that "a few convictions have been obtained with us [= in
Mass.] since 1863, but only by great effort."
7 Omitted incredibly (we said: p. 8). Tang now replies:
Incredibly, they then accuse me of "suppress[ing]" a second aspect of Massachusetts' 1845
statute, when the very first sentence of my description of that state's law quoted the 1845
rin
statute's ban against medicinal and instrumental abortions performed on any "woman
then pregnant with child."
Not so. The very first sentence of his account of that state's law did not "quote the 1845
statute's ban"; it quoted only words – not including the word "any" Tang has just supplied – that
Tang's account will soon associate only with abortions causing the death of the woman. Here is
ep
that first sentence, together with the second:

The law in force in Massachusetts as of the Fourteenth Amendment's ratification was an
1845 statute criminalizing medicinal and instrumental abortions performed on "a woman
then pregnant with child." For several reasons, the public in 1868 would have
understood the law to apply only to abortions performed after a fetus had quickened.
Pr
Those "several reasons" for holding that the legislature in 1845 meant, or was taken by the
public in 1845 through 1868 to have meant, to "codify the common law's longstanding
quickening distinction" boil down (in Tang's account) to the fact that it was "react[ing]" to a
sensational murder by abortion case–
34
readers' attention when speaking about the first clause, and the purpose inferable from
its sensational background –
d
imposed a mandatory one-year minimum – and seven-year maximum– for
we
procedures that did not result in the death of the mother. If as Finnis and George
suppose, the Massachusetts law applied to pre-quickening procedures, it would
have been more draconian than all of the Lord Ellenborough Act states that
explicitly punished pre-quickening procedures by no more than one year in
vie
prison.
But all this talk of what we "suppose" and what the statute "would have been" if with
this "draconian" penalty it had extended to pre-quickening abortions is, for present
re
purposes, just as beside the point as the data showing wide disparity between
prosecutions and convictions. The question is what the institutions of public justice did
in fact hold and enforce as its purpose, meaning, and effect.
er
And the plain fact is that the Supreme Judicial Court of Massachusetts in 1858, in
Commonwealth v Wood8 on appeal by a physician who had been convicted – to wide
public interest – of aborting his mistress, held without hesitation that an indictment for
pe
abortion under the statute of 1845 need neither allege nor prove that the woman was
quick with child.
Against Tang's theory – a main foundation of his entire article – that this whole
ot
question is controlled by a presumption that reforming statutes do not replace common

law, the Court unsurprisingly (as one would predict from the authoritative opinion in
1853 of Justice Metcalfe we mentioned on p. 7) upheld the trial judge's direction –
tn
that although at the common law, as held in this commonwealth, it was no

offence to procure an abortion, unless it was alleged and proved that the mother
was "quick with child" – that being the stage of pregnancy which, by the common
rin
law, was considered to be the commencement of the child's life – yet that under
by codifying its 1845 statute with a special rule punishing one who administers an
ep
abortion on "any pregnant woman" by up to 20 years in prison "if the woman die in
consequence thereof". [quoted with its context on p. 8 above]
Tang's paper "incredibly" suppressed (or: surprisingly omitted to indicate) the fact that in the
same sentence of the statute there is a second clause, dealing with the ordinary cases (so to call
them), where the woman does not die. So readers were deprived of the data necessary to
Pr
understand that the statute embraced the ordinary cases because it meant what it said, even
though the whole point of the Tang's interpretation is that "a woman then pregnant with child"
did not mean what it said but referred only to a sub-class of such women – the quick[ened].
8 11 Gray 86 (1858).
35
the statute of 1845, c. 27, it was not necessary to allege in the indictment or to
offer affirmative proof that the child had life. (emph. added)
d
The appellate court added:
we
The [trial] court was also requested to instruct the jury that a lawful justification
"would exist if the child with which Sara Chafee was pregnant was not a live
child." If by this was meant that the mother had not reached the stage of
pregnancy in which she would be "quick with child," and when to procure an
vie
abortion would be an offence at common law, the prayer in our opinion
misconceives the purpose of the statute, which was intended to supply the defects
of the common law, and to apply to all cases of pregnancy. (emph. added)
re
This 1858 case settles the matter definitively.
The 1859/60 statute, on the other hand, also settles the matter, as we mentioned
at the beginning of this section. But it does so only dialectically, on the basis of Tang's
er
concession, a concession based on an entirely unsound theory that statutes about proof
of pregnancy have something to do with defeating the imaginary continuation of
common-law non-indictability of pre-quickening abortion. There is no reason to think
pe
that any legally informed persons in Massachusetts between 1845 and 1858 – or
between 1858 and 1868, or indeed ever – thought that as from February 1845 pre-
quickening abortions remained non-indictable.
ot
As for Tang's last-ditch appeal to the severity of the minimum sanction for early
as well as later abortions, the refutation dealt by Commonwealth v Wood to this a priori
claim – the claim that such severity signals the statute's inapplicability to pre-
tn
quickening abortion – has big consequences for many of his other attempts to flip states
out of the pro-life list into his own. It is worth noting that the minimum punishment for
abortion, applicable – according to each of these supreme courts – to any stage of
rin
pregnancy however early, was one year's imprisonment (with a maximum of seven
years in Massachusetts, three in Vermont). And that this scale of punishment was
preserved in the statutory reforms of 1860 in Massachusetts and 1867 in Vermont.
ep
Alabama again
We showed on pp. 9-11 above that, so far from delivering any of the "originalist
Pr
immersion" in "the linguistic and conceptual world of the authors and readers" that
Tang professed to be doing in relation to Alabama's 1841 statute, his treatment of that
36
statute – and his inclusion of the state in his list of eight (later seven) that certainly and
provably permitted pre-quickening abortion – rested on nothing but a single case in
d
1857, Smith v Gaffard. And then we showed that, when rescued from Tang's stitching
we
together of irrelevant phrases, the case yields precisely nothing in support of his thesis
about the statute's meaning and effect on Alabama as a whole, Tang's reply consists,
once again, of nothing but two pages about that single case.
They are pages that make9 seven points, each of which, in unrelieved succession,
vie
spectacularly misreads either the case or what we said about it, or both. What we said
about the case can be read above (pp. 9-11); it needs no amendment (except where we
understated our case, as we note when quoting ourselves on p. 38 below). But it can
re
usefully be supplemented so as to bring out the extent to which Smith v Gaffard not only
provides Tang no support but actually explodes his entire conception of the relation
between the common law and statute in most mid-nineteenth century states. As to
er
what the case said, we will set it out in its own words in two footnotes (nn. 10 and 11,
and 17), excluding nothing relevant and adding only some bracketed numbers for ease
of reference. This is for the convenience of readers who have downloaded any of Tang's
pe
five versions before Sep. 30 and have been baffled by Tang's pervasive practice of rarely
quoting and, when quoting, virtually never giving complete sentences, let alone their
context. (His Sep. 30 version does at last quote five sentences from the case, while still
ot
wholly overlooking other important sentences and the key argument of counsel, an
argument which makes everything sufficiently clear, not least the Court's two final
sentences, which Tang does not quote but which in isolation seem to give some
tn
plausibility to his misinterpretation of the case.)

At the end of his reply, Tang conveniently summarizes his position:
True, my reading of Smith [v Gaffard] is that the Court held the 1841 Alabama
rin
statute to punish providers only for post-quickening procedures, in part because

the statute never comes close to displacing the settled common law rule to that
precise effect.
ep
9 We are looking at the version downloaded by many readers on Sep. 23-27; on Sep. 27 Tang
Pr
amended these pages to eliminate two or three of the mistaken steps in the argument while
leaving the thrust that is the main target of our critique. We need not analyze those changes in
detail because on Sep. 30 Tang uploaded a new version of these two pages, notable for
introducing for the first time a quoted passage from the case; his quotation includes sentences
[1b] through 2[d] of the passage as we quote it in n.10 below. This is progress
37
The premise or reason introduced by "because" is of course the conclusion, repeated.
But leave aside logical trivia, and the fact that Tang replaced that sentence on Sep. 27,
d
while retaining its thesis. Notice instead the core of Tang's predicament. The single-
we
clause statute is essentially identical to (though with an even lower punishment than) a
clause in New York's 1845 statute (in which another clause deals with elective abortions
on "any person pregnant with a quick child"). The Alabama court in this 1857 case
expressly (see fn 17 below) follows the New York court's interpretation of that clause as
vie
a "correct statement of the law." That clause Tang himself accepts prohibits pre- as
much as post-quickening abortions in New York. The Alabama court likewise says,
without any qualification about quick or not quick, that Alabama's clause "reaches and
re
provides for the punishment of him who administers the drug, who directs or causes it
to be taken..."
In Alabama, however, Tang protests, the very same "any pregnant woman"
er
wording (with even lower penalties!) "never comes close" to including pre-quickening
abortions, because in Alabama there is only one clause, and no accompanying clause like
New York's clause explicitly prohibiting post-quickening abortions (and so the
pe
presumption of the common-law's continuity derogates from the clause). His essential
predicament, however, is this. No American court ever accepted that "any pregnant
woman" can be read down to preserve the common law and mean any quickened
ot
pregnant woman. (Smith v Gaffard is in effect Tang's only candidate; hence his rewriting
efforts to keep it.) So no American court ever accepted Tang's "one clause, not two"
reasoning – reasoning which the Alabama court, too, disregards.
tn
Worse: the year after Smith v Gaffard, as we have just shown (pp. 35-36), the
Massachusetts Supreme Judicial Court held that a prohibition articulated in what for
present purposes is a single clause, making no reference to quickening, and using the
rin
phrase "any woman pregnant with child" – a phrase that if anything would be more
open to a common-law-preserving reading-down – means what it says, because
"intended to supply the defects of the common law and to apply to all cases of
ep
pregnancy." And the year after that, as we saw (pp. 31-32), the Supreme Court of
Vermont gave the same reading to the same phrase "any woman pregnant with child,"
holding the one-clause statute effective "to escape" all issues about quickening and
Pr
prohibit abortion at all stage, thus (to use Tang's phrase just quoted) "displacing the
common law" without having to say that it is doing so.
38
It would be astonishing if what Tang presents as a dramatic discordance
between supreme court rulings in four states (with Alabama the outlier) were never
d
noticed in any of those decisions; or in any writings such as Francis Wharton's Criminal
we
Law of the United States (e.g. 1861, 1868, 1874), by an author intensely engaged with
the common-law and statute-law approaches to abortion; or in any subsequent case or
treatise. It would be astounding if Alabama law, frequently re-enacted right down to
Roe, remained in the anomalous, incredible posture that Tang says it adopted or
vie
confirmed in Smith v Gaffard, and that there would be no record of this posture's being
abandoned by the state's courts, and no commentary on its legislature's complacency in
face of this archaic anomaly. In the real world there is no cause for wonder: Tang has
re
simply misread the case, which "never comes close to" holding or even hinting at what
he has imagined it holds.
To repeat, the case never gets near considering whether the common law
er
controls the statute (so as to give it a meaning dramatically different from New York's
or Massachusetts' or Vermont's). First (in sentence [1b])10 it considers the statute, and
holds it inapplicable to self-abortion and therefore to the imputation that the tort
pe
plaintiff had aborted herself – which the plaintiff-appellant's counsel in argument on the
appeal treated as the only imputation still in play, and to which all of counsel's argument,
first about the common law, then about the statute, was directed.11 Then (sentences
ot
10 Smith v. Gaffard, 31 Ala. 45, 51 (1857):

[1a] The Code (§ 3230) provides, that any person, who willfully administers to any pregnant
tn
woman any drug or substance, to procure her miscarriage, unless the same is necessary to
preserve her life, and done for that purpose, must, on conviction, be fined not more than five
hundred dollars, and imprisoned not less than three, nor more than twelve months.” [1b] This
statute reaches and provides for the punishment of him who administers the drug, who directs or
causes it to be taken, but not the woman who herself takes it. [2a] At common law, the
production of a miscarriage was a punishable offense, provided the mother was at the time
rin
“quick with child.”-- 1 Bla. Com. 129-30. [2b] This principle is thoroughly discussed, in reference
to the authorities, in the case of The State v. Cooper, 2 Zabriskie's (N. J.) R. 52. [2c] To that
decision, and the authorities cited in it, we refer, for a full vindication of the principle. [2d] See,
also, Commonwealth v. Banks, 9 Mass. 388; Same v. Parker, 9 Met. 263. [2e] In this case, it does
not appear from the words themselves, nor from any part of the complaint, that the imputation of
ep
an abortion, procured when the woman was “quick with child,” was conveyed, or intended to be
conveyed. [2f] Unless the words convey that imputation, or were intended to convey that
imputation, they do not charge an offense punishable by law under indictment, and, therefore,
are not, per se, actionable.
11 Smith v. Gaffard, 31 Ala. 45, 48 (argument of counsel for plaintiff appellant):
Pr
The words charging that plaintiff produced an abortion on herself, are clearly slanderous.
[1a] They charge an offense involving moral turpitude, and indictable. [1b] The procuring of a
miscarriage, by the pregnant woman herself, or by a third person, was a misdemeanor at
common law. [1c] The distinction found in the books, as to the woman being “quick with child,”
or not, grew out of the English statutes on the subject.--4 Bla. Com. 198; 1 Hale's P. C., ch. 31, § 16;
39
[2a]–[2f]) it went on to consider whether that same imputation, though not caught by
the statute, could be caught by the common law, which does (the Court is saying, though
d
not as explicitly as it helpfully could) criminalize self-abortion – but only after
we
quickening. There is nowhere any thought of the common law controlling the statute.
We repeat: the whole matter – which on Sep. 30 Tang mistakenly says "boils
down to a simple syntactic question" – is illuminated all the way down by the argument
of counsel for the plaintiff. He frames the whole issue under discussion: "The words
vie
charging that plaintiff produced an abortion on herself, are clearly slanderous." No other
words of imputation remain in play in the appeal. Within that frame, counsel then
treats the argument about the indictability of those words in the opposite order from the
re
court: he takes first the common law, then "aside from the common law" the statute.
Both counsel and court accept that the issue is imputation of self-abortion, and both
accept the premise, at least arguendo, that such words of imputation are actionable per
er
se only if they impute conduct indictable either at common law or under the statute.
(Indictability under one or the other is a necessary though not sufficient condition of the
pleaded tort liability.) Again, there is no question whatever of the common law
pe
affecting the interpretation of the statute.
Notice that counsel says abortion "was" a misdemeanor at common law. Does
that mean the common law was no longer available to base an indictment for abortion
ot
in Alabama? Perhaps, and that was the assumption behind what we wrote on p. 11
above. But perhaps not. After all, one of the cases Tang cited in his failed discussion of
Indiana, Smith v State (Supreme Judicial Court of Maine, 1851),12 holds that abortion
tn
(like murder) can in Maine be indicted either under the state's statute or under the
common law, each with its own defining rules. We know (p. 11) that in Iowa, the
rin
Tomlin's Law Dictionary, 108; Roscoe's Cr. Ev. 240; 3 Chitty's Cr. Law, 798; 1 Russell on Crimes,
553. [2] Aside from the common law, the offense charged comes within the provisions of
section 3230 of the Code, which is couched in terms similar to the English statutes, under which
ep
women who produced abortion on themselves were held included.--7 Bacon's Abr. (by Bouvier,)
189. (bolding added)
The only imputation discussed in the appeal is the one framed by counsel for the appellant plaintiff in
the first sentence: aborting herself. The Court in summarising the facts mentions only one imputation or
charge: "'that she had taken something to make her lose' a child." (emph. added) This controls everything
the Court says, though the Court could indeed have made that clearer when setting down sentences [2e]
Pr
and [2d]. Those sentences bamboozled Quay and Tang, who cannot be excused, however, for failing to
take into account the argument of counsel and the Court's statement of the relevant facts defining the
particular cause of action remaining on appeal: imputation of self-abortion.
12 33 Me 48; on Tang's failed discussion see pp. 30-31 above.
40
common law was completely eliminated by the state's criminal code. But it may be that
in Alabama, and perhaps many other states besides Maine, the two coexisted in the
d
sense that Smith v State makes clear: the common-law rule does not cut down the
we
straightforward meaning or operation of the criminal code, but does remain available as
the basis for an indictment.
In a tort action like Smith v Gaffard the discussion had to deal with both statute
and common law, since it was not considering an indictment under either, but the
vie
indictability of the defendant's words of imputation. But, to repeat what eludes Tang,
the Court's discussion dealt with statute and common law one after the other. There is
nowhere in this case the faintest trace of the thought or principle that common law may
re
control the interpretation or operation of the statute. Nobody in this case thought there
was a relevant ambiguity in the statute, sufficient to raise for discussion the possible
operation of a principle of continuity of common law rules, principles or rights.
er
Fighting both our text and the case, Tang says this –
Finnis and George suggest in response that perhaps the Alabama Supreme Court
was assessing the pregnant person's legal exposure for a pre-quickening
pe
abortion at common law, rather than under the statute that all agree did not
apply to her. But this too would have been non-sensical: under settled American
common law, pregnant persons enjoyed an immunity from punishment no
ot
matter when an abortion was obtained. [quotation from a 1905 Connecticut

decision]
Readers can see from sentence [2a] in fn. 10 above that the Court seemed
tn
unconstrained by the allegedly settled "American common law," but was interested in
the common law as declared by Blackstone in the famous passage 1 Commentaries 129-
30, where the pregnant woman is unambiguously said to be criminally liable. 13 Sixty-
rin
five years later, Smith v Gaffard was still being cited – yes, as an outlier! – for the
proposition that Tang said it would be nonsensical for Finnis and George to attribute to
it.14 Correctly cited.
ep
13 "For if a woman is quick with child, and by a potion or otherwise, killeth it in

her womb... this, though
not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon
Pr
this offence in quite so atrocious a light, but merely as a heinous misdemeanor." As to "settled American
common law," note that the other five authorities relied on by counsel for the appellant plaintiff on this
point about common law indictability were all English, too.
14 Brill, Cyclopedia of Criminal Law (Chicago, 1922) sec. 373:
41
One of the errors controlling Tang's reading of Smith v Gaffard is his false
inference, or assumption, that in ruling that the pregnant woman was not criminally
d
liable under the statute for self-abortion, the court was ruling her "not punishable under
we
the state's abortion law." But both counsel and the Court plainly seem to assume that
"the state's abortion law" included both the statute and the common law, as distinct
available bases for indictments relating to broadly the same conduct. Misled by his own
false assumption, Tang reads "the Court's ensuing discussion of culpability for a pre-
vie
quickening procedure" (sentences [2a] through [2f] in n. 10 above) as necessarily
concerned ("the logical conclusion is") with "the circumstances under which the
provider could be punished under the statute." But it is extremely unlikely that any of
re
those sentences deal with the statute (or indeed with third-party providers a.k.a.
abortionists), and in the highest degree unlikely that the Court indicated a conclusion on
criminal liability under the statute for pre-quickening abortion without indicating in any
er
way that it was departing from the clear words of the statute and drastically qualifying
what it had said in the first part of sentence [1b]. The whole set of sentences we have
pe
A woman who commits or attempts to commit an abortion on herself, or who procures or

consents to its commission on herself by another, is generally regarded as the victim rather
than the perpetrator of the crime. .... There are some holdings, however, to the effect that
ot
she is indictable at common law. (fn. Wells v New England MLI [Pennsylvania, 1899,
following a Massachusetts decision of 1876]. In Smith v Gaffard, 31 Ala. 45, it is intimated
that she would be indictable at common law if she were quick with child.). (emphasis added)
tn
Yet Tang doubles down on "non-sensical" (on Sep. 30 he walked back that rhetoric, but not the
claim): (1) His "reading of the case" (he says, while until Sep. 30 quoting no part of it) "gives
effect to every aspect of the Alabama Supreme Court's reasoning: [a] pregnant persons were
always free from punishment, but [b] providers could be punished under the statute for
procedures after quickening." But [a] is false. [b] has a strictly true sense, but what Tang means
by it is: "could be punished under the statute only for procedures after quickening," and that is a
rin
proposition which at best the Court never considers, and more likely rejects in its sentence [1b]
(fn. 10 above). Sentences [2e] and [2f] (ibid.), then, continue the Court's reasoning about the
position "at common law" ([2a]). It is inconceivable that in [2e] and [2f] the Court was reverting
to the statute and without a word of explanation reading down the statute's plain term "any
pregnant woman" to mean quickened pregnant woman, without the slightest nod to principles of
ep
interpretation, or authority, or any other signal of what it was (in Tang's theory) doing. (2)
Our reading of the case, on the other hand (says Tang) –
assumes that the Alabama Supreme Court could have thrown a patient herself in jail for a
post-quickening abortion despite a common law immunity that held exactly the opposite.
Pr
Well, yes (though supreme courts don't do the jailing, immunities don't hold anything, and we
didn't assume the point but argued it): readers can see for themselves (sentence [2a] in fn 10)
that the Court accepted or considered that if a common law indictment were brought, the woman
could not successfully plead that the common law offense did not extend to self-abortion – she did
not have that immunity, to the Alabama court's way of reading the common law.
42
labelled [2a] through [2e] in fn 10 is concerned with the common law (and, understood,
with what the bearing of its general rules was on self-abortion).15
d
Tang has one last throw16 of his Smith v Gaffard dice, and this throw too skids off
we
the table:
if the provider could have been punished for a pre-quickening procedure, that
would have rendered Smith's abortion one procured "under circumstances not
allowed by law," which the Court had earlier deemed sufficient for tort liability.
vie
15
And that is what our discussion at pp. 9-11 both presumes and asserts. Tang's whole discussion
veers irremediably off-track in his opening attempt to state our position:
re
I argued above that Smith interpreted Alabama's 1841 statute in two respects; the statute
never applied to pregnant persons themselves, and it only applied to an abortion provider if "the
woman was 'quick with child.'" Finnis and George agree with the first interpretation , but not the
second. Instead, they argue that when the Alabama court held that "unless the words convey
that imputation [that the woman was 'quick with child'], they do not charge an offense
er
punishable by law under indictment," what the Court really meant to say was that the woman
herself could not be punished for a pre-quickening abortion, rather than the provider.
But that is not what we argued at all. We said, and say again, that when the Alabama court used the
words we have underlined – sentence [2f] in n. 10 above – it was saying precisely nothing about the
pe
statute or its interpretation, and was addressing exclusively the position under common law. We also
happen to think it was saying nothing about third-party "providers" as such but, like counsel and
Blackstone, was talking about the application to self-providers (so to speak) of a principle of criminal
liability that, in Blackstone at least, extended, compendiously, to self-providers, third-party providers, and
the pregnant women who consent to the services of the latter. On Sep. 27 and 30, Tang changes course
somewhat, drops the wild claim that we thought the underlined words ([2f] in fn. 10) are dealing with the
statute, and switches to exegesis of sentence [2a]. This sentence he now, entirely implausibly or
ot
impossibly, thinks "qualifies the circumstances under which the just cited abortion statute would apply to
one who administers an abortion." This cannot be so, not only because it ignores the sentence's opening
reference to the common law as distinct from the statute, but also because the only imputation still
argued (in the appeal) to be slanderous was of self-abortion, and the indictability of "one who administers
tn
an abortion" in the sense of providing it to a pregnant woman was therefore completely irrelevant to the
appeal. Then, still ignoring the Blackstone passage, Tang focusses in vain on three American cases
discussing the common-law quickness rule without reference to self-abortion but at a level of generality
or compendiousness such that the Alabama court, rightly or wrongly, takes them to be supportive of its
essential position: that if the common law makes self-abortion indictable, it does so only when the quickness
rin
requirement is satisfied. (Incidentally Tang is mistaken in thinking that Commonwealth v Parker is a case
of abortion by assault rather than by consent; Shaw CJ treats consensual abortion as involving a kind of
technical assault that is not purged by the woman's willing invitation and consent.)
16 Besides, that is, his claim that "other commentators, including pro-life writer Eugene Quay, have
reached the same conclusion" as Tang about Smith v Gaffard. No commentators save Quay are cited, and
ep
Quay is mishandled: at the cited place he is said to be "arguing that Smith v Gaffard held Alabama's statute
to 'apply only after quickening." But there is no arguing at all, no reaching a conclusion, in Quay's one-line
annotation of the Alabama abortion statutes: "Case material. Statute applies only after quickening: Smith
v Gaffard 31 Ala. 45 (1857)." A stray remark that was a mistake. Horatio Storer, who was more than
willing to denounce states for failing to suppress abortion, and unwilling to give any state the benefit of
Pr
the doubt, had the help of a correspondent on the ground in each state (including a Dr Lopez in Alabama,
a Dr Barton in Louisiana, and a former District-Attorney in Massachusetts) in describing the statutes and
law in force in 1860, state by state: he classified Alabama (and Louisiana and Massachusetts) among the
ten states "acknowledging the crime throughout pregnancy, unmitigated; but still requiring proof of the
existence of this state [pregnancy]." On Criminal Abortion in America (Philadelphia, 1860), 75, 78.
43
Alas, no. The Court had earlier deemed "abortion under circumstances not allowed by
law" to be a necessary but not sufficient condition for the tortious character of imputing
d
that Smith had had an abortion. Fn 17 below sets out the relevant paragraph for
we
readers to consider.17 It is the passage immediately preceding the one quoted in fn 10
above. The two passages contain all that is necessary to understand both the case and
what we said about it in the last full paragraph on p. 10 and the middle paragraph on p.
11 above. (Comprehension of them is much assisted by counsel's framing of the issue,
vie
quoted in fn. 11 above, which also quotes the Court's matching summary of the facts.).
In fn. 17 we have bolded the words of interest to Tang. We have italicized three
sentences, in each of which it is distinctly stated that what Tang reads as stating a
re
sufficient condition is, though necessary, not sufficient. We have underlined two
phrases that link the third of these sentences to the first, and that, in each sentence,
concern the necessary conditions besides indictability.
er
Tang has rewritten his treatment of Smith v Gaffard repeatedly, because it is
really the only case that contains a sentence that, in isolation, seems to give support to
his vast 12-state edifice. The rewritings all fail: he has utterly misread the case, and
pe
continues to misread it. His mishandling of it is a microcosm of his entire attempt to
change the 27-state count.
ot
Tang's ten revisited

The notable mishandling of Smith v Gaffard suggests that it is time to look at the
tn
remaining cases that Tang alleges support his claim (see p. 29 above) that "Courts had
rin
17 Smith v Gaffard 31 Ala. 45 at 50:

It remains for us to consider the question, whether words which charge the procurement of an
abortion are, per se, actionable. Those words are as follows: “I suppose Caroline was with child,
and took something to make her lose it.” If it be conceded that these words impute to the plaintiff
ep
the intentional production of an abortion by the taking of a drug under circumstances not
allowed by the law, they are not, of themselves, actionable. Words, not imputing a want of
chastity to a female, are only actionable, when they charge the commission of an offense indictable
by law, and drawing after it an infamous punishment, or involving moral turpitude... [case
citations] It is decided in New York, that the procurement of an abortion, under circumstances
not allowed by law, is an offense involving moral turpitude.– Bissell v Cornell 24 Wend. 354
Pr
[1840]. We adopt that decision, as a correct statement of the law. After the concessions
heretofore made for the sake of the argument, it is a sequence from the adoption of the New York
decision, that the words are actionable, per se, if they impute an indictable crime.
44
interpreted the italicized language ["pregnant with child"] to mean a pregnancy where
the child had quickened. [fn See supra nn. 112-122 (collecting cases)]."
d
In considering (pp. 30-31) that claim as he made it when talking about the
we
motives of Vermont's 1867 legislators, we naturally set aside those of the cases he cited
in support that were subsequent to 1867 and could not have affected those legislators.
But now we need to ask what support those set aside can give – as Tang plainly alleges
they can – to his position that once one looks beyond the statutory language, and
vie
undertakes "originalist immersion" in the language and thought of legislators and those
for whom they legislate, one discerns that "any pregnant woman" and "any woman
pregnant with child" was taken to mean (unless context excluded it) "pregnant with
re
quickened child."
Tang's post-1867 list named five. cases, and we look briefly at each.
First, Mitchell v Commonwealth, Kentucky 1879. Irrelevant. It said nothing about
er
any statutory language – unsurprisingly, since that state, anomalously, had no statute
about abortion.
Second, Eggart v State, Florida 1898. It provides no support to Tang, and
pe
undermines his approach by holding – without needing to offer evidence – that although
the common law "undoubtedly" required quickening, "our statute has changed all this."
That was in substance the statute of 1868, with a clause prohibiting abortion of "any
ot
woman pregnant with a quick child" and a separate clause applying to elective abortion
of "any woman." substantially the same as the statute of the state of Massachusetts
[1860]." So Eggart does not contradict Tang's formal position, but of course, like all
tn
other courts we know of, gives no support at all for the proposition that Tang cited the
case to support his discussion of Vermont.
Third, State v Alcorn, Idaho 1901. Firmly opposed to Tang. Idaho was a single-
rin
clause state using, in 1864: "any woman then being with child" and as from 1887 "every
woman." No matter:
At the common law an abortion could not be committed prior to the quickening
ep
of the fætus. This is not the case under our statutes. The pregnancy of the
deceased in the case at bar can be shown, and was shown to the satisfaction of
the jury, by declarations and by circumstances. (emph. added)
Pr
45
Fourth, Edwards v State, Nebraska 1907. No support for Tang. Nebraska's
statute of 1873 had two clauses, one dealing with abortion of "any pregnant woman
d
with a vitalized embryo, or foetus, of any stage of utero gestation," punishable with one
we
to ten years, the other dealing with aborting of "any woman," punishable with up to one
year. Edwards concerned the first, and holds:
It is urged that the term "utero gestation" is not synonymous with "pregnancy"...
We think, however, that the use of the words “at any stage of utero-gestation,” in
vie
the statute, means at any stage of pregnancy. At common law it was thought that
a person could not be guilty of abortion unless the pregnant woman was quick
with child. The clause here considered was evidently inserted in the statute to
re
avoid the perplexing and doubtful questions which might be raised as to the time
of “quickening” under this view of the law.
No hint anywhere, of course, of the proposition for which Tang declares the case is
er
authority.
Finally, Lamb v State, Maryland 1887. The state enacted a statute against
abortion in 1867, but replaced it in March 1868 with an even tougher criminalisation of
pe
all elective abortions of "any woman pregnant with child at any period of her
pregnancy," punishment to be imprisonment of not less than three years and/or a fine
of $500-$1,000 at the court's discretion. The Court in Lamb gives a perspicuous
ot
judgment, antithetical to Tang's stance:

This statute [of 1868] made great changes in the pre-existing law. ....18 It
excepted from its provisions certain operations by regular medical practitioners.
tn
By the ancient common law, according to Lord Coke, “if a woman be quick with
child, and by a potion or otherwise killeth it in her womb; or if a man beat her,
whereby the child dieth in her body, and she is delivered of a dead child,--this is
rin
a great misprision, and no murder.” But as the life of an infant was not supposed
to begin until it stirred in the mother's womb, it was not regarded as a criminal
ep
18 The passage we have omitted for space reads:

It made it highly penal to give notice by advertisement, printing, or publication of any place
where any means could be procured for the purpose of producing abortion, or where any advice,
Pr
direction, information, or knowledge could be obtained for the purpose of causing the
miscarriage or abortion of any pregnant woman at any period of her pregnancy; and it also
prescribed punishment for every person who should sell, or cause to be sold, any medicine for
this purpose, or who should knowingly use, or cause to be used, any means whatsoever for the
same.
46
offense to commit an abortion in the early stages of pregnancy. A considerable
change in the law has taken place in many jurisdictions by the silent and steady
d
progress of judicial opinion; and it has been frequently held by courts of high
we
character that abortion is a crime at common law without regard to the stage of
gestation. In this state, however, the change has been effected by the action of the
legislature, and not by the decisions of the courts. The offenses to be punished are
defined with great minuteness and particularity, and the scope of criminality in
vie
matters of this description is greatly enlarged. (emph. added)
No hint that the common law had any kind of weight in the interpretation of the statute,
in relation to matters the statute dealt with plainly.
re
In short, of the ten cases that Tang cited in support of one of his central, most
essential claims, that by 1867 "Courts had interpreted the italicized language ["pregnant
er
with child"] to mean a pregnancy where the child had quickened," not one gave it,
anywhere, the least flicker of support, or even of recognition that it could be argued, or
had somewhere been argued as makeweight by desperate counsel. The proposition just
pe
quoted can be gently described as pure invention.
Florida again
ot
Another sad parade of misrepresentations, masking evasion of the issue in

dispute. There is a rhetorical prelude: in their Rejoinder, Finnis and George "concede
the key fact: Florida enacted its abortion statute after the Fourteenth Amendment's
tn
ratification." This glosses over the fact that we had nothing to "concede." Our Brief had
grouped Florida's statute with those "adopted or strengthened within a year or two of
the Amendment's ratification," and then gave its exact date, August 6, 1868.19 More
rin
19
Our Brief never even implicitly linked the 27-state claim with the position "at ratification."
It is Tang who is in error – indeed doubly in error – when he claims that our Brief "repeats th[e]
ep
identical argument" of Mississippi's Dobbs Brief, an argument that Tang massages into the
assertion or innuendo that "[a]t the Fourteenth Amendment's ratification" 27 states prohibited
attempts to induce abortion before quickening. But we did not "repeat" either the proposition
actually advanced (correctly) by Mississippi's Brief or the assertion or innuendo that Tang
erroneously ascribes to Mississippi. Mississippi's Brief, much more scrupulous than Tang, says:
Pr
At the Fourteenth Amendment’s ratification, moreover, many States restricted abortion broadly
(and without regard to viability). See, e.g., id. [Witherspoon] at 34 (placing at 27 the number of
States that, at the end of 1868, had statutes that “prohibited attempts to induce abortion before
quickening.") (emph. added)
Tang's later claim that Mississippi's Brief–
47
important, the sole concern of our Rejoinder to Tang's discussion of Florida was to
argue that whether a statute fell one side or the other of the exact date of ratification is
d
not, in a reasonable originalist view, the "key fact" that Tang wants to make of it (so that
we
he can claim that those who count Florida among the 27 states punishing elective
abortion at all stages of pregnancy are "simply wrong," because "historical evidence
flatly contradicts their claim," indeed "specific historical evidence strongly refutes" it,
because for example "they mischaracterize the dates on which a given state law was
vie
enacted").
But the main performance is much inferior to the prelude. Having, with spin,
reported that we agree that Florida's statute was enacted in the month after ratification,
re
Tang goes on:
But they assert that this was actually evidence Florida's lawmakers were
"hasten[ing[] to align [the] state's law with a new constitutional provision." In
er
other words, Finnis and George claim that Florida enacted its abortion law
because the State believed it had no other choice once the Fourteenth Amendment
defined the word "person" to include unborn fetuses. This is a very bold claim.
pe
(emph. Tang's)
Given what "assert" and "claim" mean, it is a claim that Tang himself has fabricated. We
did not assert or claim, or even remotely imply or insinuate, any of this. To have done
ot
so would have run counter to the whole originalist argument about the Fourteenth
Amendment as we develop it in our Brief, and as one of us elaborated in three articles a
few months earlier.
tn
thus contends in Dobbs that Florida was among the "many states [to] restrict[] abortion broadly
(and without regard to viability)" as of "the Fourteenth Amendment's ratification" [fn. Brief for
rin
Pet'r Mississippi at 12]

is simply false. Notice also Tang’s characteristic abstention from quoting whole sentences, and his
preference for manufacturing his opponent's propositions by cutting and rearranging fragments, so as to
replace either the subject or the predicate (or sometimes both!) with something he would prefer the
opponent to have said. The juxtaposition of the two indented quoted passages in this footnote is a neat
ep
though minor example of this sort of device, pervasive in Tang's engagement with "pro-life advocates."
There is nothing whatever on p. 12 of Mississippi's Brief to support Tang's claim other than the two
sentences of the first quoted passage, out of which the second quoted passage has been contrived so as to
attribute to Mississippi a "contention" about Florida. The "thus" at the beginning of the second quoted
passage is to present Mississippi as prime example of the vice described in Tang's preceding sentence,
which denounces "pro-life advocates" who have "seized upon Witherspoon's 27-states figure without his
Pr
subtlety." Tang is right: some indeed have. Unluckily for him, Mississippi's Brief builds Witherspoon's
subtlety right into its deployment of his 27-states figure.
48
Part I.B of our Brief opens with references to the state legislation that the 27-
states thesis highlights, and 4 pages later begins the final paragraph of that Part:
d
Given the evil they aimed to cure, the Amendment’s ratifiers may not have
we
subjectively had in mind that the Equal Protection Clause would affect established
antebellum Union rules and institutions at all.74 [fn. 74. (after citing seven US
Supreme Court precedents illustrating that highly restrictive view of the Equal
Protection Clause) For example, litigants fighting discrimination against women
vie
appealed to the Amendment’s first sentence but never its Equal Protection
Clause. That is inexplicable except based on early assumptions about that
Clause’s application that would also have blocked early appeals to the Clause by
re
those seeking to bolster fetal protections. These blocking assumptions, when
articulated by courts, proved to concern not the meaning of “any person” but the
import of “deny ... the equal protection of the laws.”] (emphases added)
er
The "Amendment's ratifiers" include the Assembly and Senate of Florida. The passage
we have just quoted from Tang makes our Preliminary Rejoinder present those
lawmakers as "hasten[ing] to align [the] state's law with a new constitutional
pe
provision." Alert readers will have noticed the oddity of the phrase "a" new
constitutional provision: why were these lawmakers not hastening to align the law with
the new constitutional provision? Professor Tang's stitching of fragments has come
ot
unstuck. We were talking about hypothetical legislators and a hypothetical

constitutional revision. Indeed, our Rejoinder never referred to Florida's lawmakers or
legislators at all.
tn
Tang has redirected "quoted" words from a paragraph debating his general
thesis that the appropriate originalist approach takes as crucial ("key") the date of the
coming into effect of a constitutional amendment, the "point" after which originalist
rin
evidence doesn't count. We sought to refute that general thesis with a reductio ad
absurdum, using the vehicle of a hypothetical, using a chronology of legislative events
similar to the chronology in Florida as Tang had presented the sequence of events there.
ep
His use of bare chronology, we argued, is absurd: "The absurdity of Tang's idea of
originalist interpretation could scarcely be more clearly displayed." The reductio takes
that chronology and illustrates its absurd result when applied to a hypothetical
Pr
legislature:
49
If a state legislature hastens to align its state's law with a new constitutional
provision, but does so a month after that provision had come into force (at a
d
date, indeed, over which that state had no control, and which no one could
we
confidently predict in advance), Tang says its new law doesn't count at all as
evidence of how the constitutional provision was understood when the same
state legislature. debated and ratified it. A desperate way to change 27 to 26.
If Tang had asked whether we meant our reductio to imply that Florida's legislature was
vie
in fact hastening to align its law with the new constitutional provision, we would have
replied as follows.
No, the Florida legislature enacted its pro-life provisions as one small element in a
re
complete code of criminal law prepared with astonishing speed by a committee of five
appointed on July 9, 1868 and reporting with a complete code as a Bill on July 25th, the
Bill being enacted on August 6th. The commissioners reported that their code was
er
"adapted to the present conditions and necessities of the people" and embodied "the
criminal statutes of the most enlightened States of the Union." 20 Its rapid work was well
pe
done, and the three provisions on criminal abortion were in force unamended a century
later. The evidence about the states of the US in general that we summarized in our
Brief (and in the three articles it cites directly or indirectly in fn. 99) suggests to us that
the Fourteenth Amendment is unlikely to have been more than a background
ot
consideration in the preparation of the criminal code and of its pro-life provisions,
comparable to, or part of, the general background influence of what the new Governor
tn
said to the new Legislature on its first day (still under military rule!) when he recalled
"the great theory of American government, that all men are by nature free and endowed
rin
20 Florida Senate Journal July 25, 1868, p. 143. As to the circumstances, the Governor's
ep
message to the Senate and Assembly on July 8th recalled the circumstances on which the
Legislature had first met exactly one month earlier, by permission (at first withheld) of the
military granted when Congress in Washington gave its consent. The message, ibid., pp. 35-63,
gives some sense of the vast scale of the work needed to give effect in Florida to the general
Reconstruction, work undertaken by the Legislature under the new constitution with which the
Pr
state was admitted to the Union on June 8th, proceeding forthwith to adopt the Thirteenth and
Fourteenth Amendments the following day, 9 June 1868: ibid., pp. 9, 11, 14. Nothing in the
Senate Journal seems to us to intimate that the Criminal Code commissioners were animated by
a motive of complying with the Fourteenth Amendment, or by anything more or less than the
rationale articulated in the quotations to which the present footnote is appended.
50
with equal rights" and urged the immediate adoption of the Thirteenth and Fourteenth
Amendments as "conditions precedent to admission" to the Union. 21
d
The aspiration of the lawmakers was surely, as the commissioners' report indicates,
we
to have an enlightened and American criminal law, and they put the first of their three
abortion provisions (where the death of the unborn child is intended) as a species of
manslaughter, immediately after manslaughter in general and "assisting self-murder,"
vie
among "offences against the person." If anyone in Florida thought that he or she had, as
Tang implausibly claims people there did, a deeply rooted right, privilege, or immunity,
we can infer with certainty from these provisions that the elected lawmakers of Florida
considered such thoughts barbarous, un-American, and unworthy.
re
What in fact is our view about the likely motivations of the legislatures that
reformed their abortion law in a pro-life direction not long before or not long after the
er
ratification of the Fourteenth Amendment? Our Brief in Dobbs, having said that "the
Amendment’s ratifiers may not have subjectively had in mind that the Equal Protection
Clause would affect established antebellum Union rules and institutions at all," went on:
pe
But if a state in, say, 1870 had legislated to permit all elective abortions, the
reasonable ratifier would have agreed that the Amendment’s terms entitled
guardians ad litem to obtain equitable relief for unborn children. This could
ot
have been denied only on some Fourteenth-Amendment-limiting theory—e.g., of

the Amendment’s race-specific motivating goals— long and rightly rejected by
tn
this Court.
The argument for that pair of sentences is everything put forward as legal and
intellectual history in the rest of our Brief.
rin
But instead of asking the question about the point of our hypothetical – it would
not have been an unfair one – Tang foisted upon us a fiction of his own devising, as if the
words "assert" and "claim" had no settled meaning. As a side effect, perhaps, our
ep
argument that his cut-off point is absurd goes unanswered. The nearest he gets to
joining issue is in the penultimate sentence of his Florida reply, when he reasserts that
what matters is "what people in Florida would have understood to be true [about
Pr
21 Ibid., pp. 5, 7.
51
whether pre-quickening abortion was a protected privilege or immunity] when the
Amendment was ratified, not what they would have understood at some arbitrary point
d
in the future." Our Brief had pointed to such facts as it being the same legislature
we
(meaning the same set of elected representatives) as indicative of why things said,
thought, and done at times after the Amendment's ratification can nonetheless count,
very appropriately, in a sound originalist assessment of the Amendment’s public
meaning. Our just-quoted hypothetical about 1870 suggests another non-arbitrary
vie
extension. There is no "point" at which evidence relevant a day before simply ceases to
be retrospectively illuminating if a day later. Any single point in time is going to be
arbitrary, not least the point favored by Tang, the date of ratification! Thinking in terms
re
of such cut-off points is not how a sane originalism does its job.
New Jersey again er

Professor Tang's brief reply to us is characteristic. He says we in our Preliminary
Rejoinder make "a hash of the New Jersey Supreme Court's own words." One wonders,
pe
he says, "how the new Jersey Supreme Court could possibly write with a straight face
that 'the design of the [1849] statute was not to prevent the procuring of abortions.'"
Readers who are wondering have only to consult pp. 20-21 above, where precisely that
is explained, with abundant quotation from the Court, showing how the context controls
ot
and elucidates the words Tang quotes in provocative and absurd isolation.
He goes on to say "the Court did not hide the ball." Indeed it did not. It is Tang
tn
who proceeds to hide the ball, by supplying a three-line quotation where the Court is
explaining "the supposed defect in the common law." Tang italicizes the words that are
indeed essential as indicating that what the 1849 legislature (in the Court's view)
rin
supposed was defective in the common law, namely the non-indictability of the aborted
woman herself. But Tang withholds from his readers the sentence with which, earlier in
the very same paragraph, the Court had explained the precondition of that non-
ep
indictability at common law: being not quick, or perhaps even not pregnant. Here is
that key sentence:
At the common law, the procuring of an abortion, or the attempt to procure an
Pr
abortion, by the mother herself, or by another with her consent, was not
indictable, unless the woman were quick with child. (emph. added)
52
Thus the legislature's remedy for what it supposed to be a defect was simple: to make
indictable all elective abortions, regardless of quickening – and even all abortifacient
d
measures without proof of pregnancy – while preserving and universalizing the pregnant
we
or putatively pregnant woman's non-indictability.
For attempts (and supply of means) to induce abortions, the Court correctly
reasons, are a threat to the life or health of the woman, whether there is a child in
existence to be protected or not. But the common law, looking only to the time ("quick
vie
with child" or "with quick child") when there is a child to be protected, had left the
woman's health unprotected. Hence (to repeat) the statutory remedy: make attempts,
and supply with abortifacient intent, indictable regardless of quickening, and eliminate
re
the threat of prosecution that might discourage the woman from initiating and
collaborating in the prosecution of the provider (to use Tang's choice word) of
abortifacients and abortive measures of any kind (medical necessity aside).
er
Thus the Court's reasoning, once its premises are rescued from Tang's
suppressive omissions, provides an explanation 22 for the inevitable conclusion, to which
all other evidence points but against which Tang is committed to struggle to the bitter
pe
end: the 1849 statute meant what it said when it criminalized the supply etc. of drugs,
or use of any instrument etc. with intent to cause etc. the miscarriage of "a woman."
Pre-quickening abortion, and everything directed to it, was not only unlawful, as it had
ot
always been, but now also indictable and punishable in New Jersey – for the protection,
on all occasions, of the woman whose health or life could thereby be destroyed whether
or not she was pregnant; and for the protection of the unborn child on those (somewhat
tn
fewer) occasions when one had been conceived.

Case closed. New Jersey is one of the 28.
rin
Nebraska
Nebraska's law of abortion is a curious and interesting outlier, by 1868 unique.
Instead of a sensible discussion of it, we get another revelation of Tang's methods .
ep
22 The Court's explanation is verbally somewhat crabbed by too narrow a focus on the only
issue before the Court, whether actual consumption by the woman of the abortifacient supplied to
Pr
her by the defendant was a precondition of his criminal liability. It is that focus that explains
how the Court could say "with a straight face" what Tang, inattentive to that focus, makes such a
hash of. It is not the procuring of the abortion that the 1849 law makes crucial, but the attempt,
or the supply of dangerous means, that proximately imperil the health of women whether they
are pregnant with child or not.
53
There was a period of 15 years (1858-1873) when its statute law prohibited only
abortion effected or attempted by "administer[ing] or caus[ing] to be administered to or
d
taken by any woman then being with child" a "poison or other noxious or destructive
we
substance or liquid."23 Did the draftsman perhaps think that use of instruments
counted as administration of a substance? Improbable, and unlikely to stand up in
court. So there was a gap in the statutory prohibition, and the legislature filled it in
1873:
vie
Any physician, or other person, who shall wilfully administer to any pregnant
woman any medicine, drug, substance, or thing whatever, or shall use any
instrument or other means whatever, with intent thereby to procure the
re
miscarriage of any such woman, unless the same shall have been necessary to
preserve the life of such woman, or shall have been advised by two physicians to
be necessary for that purpose, shall be punished by imprisonment in the county
er
jail, not more than one year, or by fine not exceeding five hundred doillars, or by
both such fine and imprisonment.24
Back to the pre-Fourteenth Amendment story. Nebraska became a state on March 1,
pe
1867, and prepared for its elevation from territorial status by revising and re-enacting
all its general statutes in February 1866. So Tang is technically correct when he says its
statutory prohibition of abortion was "enacted in 1866." But this was a mere
ot
consolidating re-enactment of its statute of 1858. In the 1866 consolidation that

became sec. 42 of the Criminal Code, in the Code chapter entitled "Chapter IV. Offenses
against the Persons of Individuals," in which the first provision is sec. 18, to which the
tn
marginal note is "Murder".

Sec. 42 has two marginal notes in identical typeface. One ("Administering
Poison") is alongside its first sentence, which prohibits administering poison to any
rin
person "with the intention to cause the death of such person." The other ("Abortion") is
alongside the beginning of its second sentence, which prohibits abortion by poison etc.
ep
23 Act of 1858 (Offenses against Persons), c. 1, sec. 43.

…And every person who shall administer or cause to be administered or taken, any such
poison, substance or liquid, with the intention to procure the miscarriage of any woman
then being with child, and shall thereof be duly convicted, shall be imprisoned for a term
Pr
not exceeding three years in the penitentiary, and fined in a sum not exceeding one
thousand dollars.
24 With a nod to the past, this provision, s. 39 of the Criminal Code of 1866, is grouped as one of
the eight sections in "Chapter VI: Attempts and Inducements to Poisoning and Abortion."
54
in the terms we summarized above. Sec. 42 is set out precisely where Tang's footnote
says: "Revised Statutes of the Territory of Nebraska 598-599 ([Omaha,] 1866)." So he and
d
we are all looking at the same printing of sec. 42, beginning with four lines on p. 598
we
and running over to the top ten lines of p. 599. He tells readers he is giving them "the
entirety of the law at issue, enacted in 1866," and sets it out. (We have set out the part
of its 1858 predecessor that deals with abortion, in fn. 23 above, and it is identical to
what we and Tang are looking at in the abortion part of sec . 42 on p. 599 of the 1866
vie
Revised Statutes.)
Thus, perhaps trivially, Tang's version of sec. 42 omits without warning the last
ten words, imposing a mandatory thousand-dollar fine over and above the mandatory
re
but not fixed prison term not exceeding three years.
Non-trivially, Tang has shifted the marginal note "Administering Poison" to a
position where it seems to be the title of the whole section. And he has omitted the
er
marginal note "Abortion." Having done this, he proceeds to identify the "more
fundamental" of two errors he says are made by pro-life advocates of the 27-state claim:
But the Nebraska error is even more fundamental. As the title of the statute [sic]
pe
and the entire provision make plain, the provision is a poison control law, not an
anti-abortion law. (Tang's emph.)
But in truth, not even the first part of sec. 42, dealing with administering poisons, is a
ot
"poison control law": it is a law against using poisons or noxious liquids with intent to
kill. Sec. 42's second part is a law against using such liquids with intent to procure the
miscarriage of a woman "then being with child." It is, as it indicates in the marginal
tn
note suppressed by Tang, an anti-abortion law, albeit a curiously somewhat limited one.
Tang of course goes on to argue that the legislative object was limited to
suppressing "dangerous poisons," not electively induced miscarriages in general – by
rin
dangerous he presumably means dangerous to the woman only. But even the section's
first part was not about using dangerous poisons, but only about using them with a
provable intent to kill.
ep
His conclusion is simple:

...prior to [1873] – including when the Fourteenth Amendment was ratified – the
ordinary public would have understood there to exist a pre-quickening right to
Pr
instrumental abortions in Nebraska.
55
Relying on Mohr,25 he calls these abortions "commonplace procedures using medical
instruments." But on the very page of Taylor's Principles of Medical Jurisprudence
d
(Philadelphia, 1845) that Tang himself has cited two sentences earlier, the author says:
we
These mechanical means can seldom be applied to the uterus, without leaving
marks of violence on that organ as well as on the body of the child. If the mother
die, a result which generally takes place – an inspection of the body will at once
settle the point,
vie
The American editor adds, on the same page:
In this country, we have had too many cases of criminal abortion, some, as has
been shown in evidence, produced by mechanical means, and eventuating in
re
many instances in the death of the mother. (emph. added)
Taylor goes on:
Medicinal substances are perhaps more frequently resorted to for inducing
er
criminal abortion than other means; but they rarely answer the intended
purpose, and when this result is obtained, it is generally at the expense of the life
of the mother. (emph. added)
pe
Since these informed opinions are more likely to have been of interest to Nebraska's
lawmakers in 1858 and 1866 than the wishful thinking of some members of "the
ordinary public," it is surprising that Nebraska's anti-abortion legislation did not
ot
provide for abortion by mechanical means. A bit of legislative history makes things less
surprising.
Nebraska's 1866 abortion law was enacted (consolidated, re-enacted) as part of
tn
the new state's first legislative code. As Tang has left altogether out of consideration,
the Nebraska draftsman (as in 1858) seems to have been following Iowa's 1839 statute,
likewise enacted in that then new territory's first legislature's first session and in the
rin
same curious way lumping the prohibition of abortion into the same numbered section
ep
25 At the cited and quoted passage, Mohr is in fact discussing the advertisement in 1833 of a
vaginal syringe which, Mohr says, "were not directly abortive instruments, but their availability
to the public beginning in the 1830s must have accustomed many women to the idea that
instruments could be used safely and effectively to control their reproductive functions." Tang
Pr
omits the references to syringes and their uselessness for abortion, and splits up the rest of
Mohr's sentence simply so as to avoid the word "women" and replace it with "pregnant persons".
Such misconceived prudery loses the part of Mohr's historical point that relates to the (supposed)
ideas of women not yet pregnant but contemplating intercourse and the unwanted pregnancy
that might well follow.
56
as deals with poisoning with lethal intent, and limiting it to abortion by ingestion. And
the Iowa draftsman, in turn, was following the Illinois statute of 1833, itself essentially
d
re-enacting Illinois' statutory prohibition of 1827. The Nebraska draftsman of 1866,
we
looking back to the Iowa law of 1839, seems to have overlooked not only that territory's
1843 provision defining as manslaughter every successful abortion of "any woman
pregnant with a child,"26 but also Iowa state's 1858 law straightforwardly criminalising
all elective abortion procedures on "any pregnant woman."
vie
As in Illinois for 40 years between 1827 and 1867, so in Nebraska the odd upshot
remained in place for 15 years, until in 1873 (by General Statutes c. 58 secs. 6 and 39)
the rational universal was put in place, prohibiting elective abortion of "any pregnant
re
woman" by "any... means," on pain of one to ten years' imprisonment if the elective
procedure, by physician or otherwise, resulted in the death of "a vitalized embryo, or
foetus, at any stage of utero gestation." er
Perhaps in Illinois in 1827, Iowa in 1839, and Nebraska in 1858, the draftsmen
and those legislators who attended to detail were thinking that instrumental (Taylor's
"mechanical") abortions are in practice always so late that, as post-quickening, they are
pe
uncontroversially caught by the common law. Perhaps, alternatively, they were
thinking, like the treatise writers Francis Wharton in 1846 and Joel Bishop soon
afterwards, and the Pennsylvania judges since the mid-1840s,27 that the common law
ot
26Iowa's 1843 abortion statute (like its 1839 statute if then still in force) was repealed in the
general codification of 1851 (see p. 11 above); new provision was made for abortion of "any
tn
pregnant woman" by "any...means whatever," by s. 134 of c. 58, March 1858. But the common
law did not revive in the interim between 1851 and 1858, and there was in those years a genuine
gap in the indictability of elective abortion.
In Indiana's statute of 1835, the general provision as to lethal poisoning was in sec.1 and the
provision as to elective abortion of "any woman" by "any means" was in sec. 3.
rin
27 Francis Wharton, Treatise on the Criminal Law of the United States (1st ed. 1846), p. 308; (6th ed.
1868), vol. 2, p. 653:
There is no doubt that at common law the destruction of an infant unborn is a high misdemeanour,
and at an early period it seems to have been deemed murder.... It has been said that it is not an
ep
indictable offence to administer a drug to a woman, and thereby to procure an abortion, unless the
mother is quick with child, though such a distinction, it is submitted, is neither in accordance with
medical experience, nor with the principles of the common law. The civil right of an infant in ventre
sa mere are equally respected at every period of gestation; and it is clear that no matter at how early a
stage, he may be appointed executor[ ], is capable of taking as legatee [ ], or under a marriage
settlement [ ], ... and may obtain an injunction to stay waste [ ].
Pr
Wharton had presented the same argument as successful counsel in Commonwealth v Demain (1845/6)
Brightly 441, 443 (argument of F. Wharton for the A-G), 6 Penn. L.J. 29; see likewise 2 Wharton, Criminal
Law §1221 (1868); essentially identical: Wharton, A Treatise on the Law of Homicide in the United States
(1855), 339-343. He was not alone: J.P. Bishop, Commentaries on the Criminal Law (2nd ed. Boston, 1858),
57
makes even pre-quickening abortions indictable – so no gap in the criminalization of
abortion is left by a statute that adds its own prohibition of a sub-class (abortions by
d
poisons etc.). Such thoughts could hardly sustain the distinction between means of
we
effecting elective abortion, and the distinction was swept away when the legislators got
around to it: in Iowa in 1843 and again in 1858; in Illinois in 1867, and in Nebraska in
1873.
Against Tang's notion that a "pre-quickening right to instrumental abortions"
vie
was being respected or at least enjoyed in Nebraska prior to 1873, in Illinois prior to
1867, and in Iowa prior to 1843 (and again – together, suddenly, with abortion by
ingestion! – between 1851 and 1858), it bears repeating: the entire notion of a common-
re
law right to pre-quickening abortion was invented out of whole cloth by Cyril Means in
the late 1960's, before which it was scarcely or not at all to be found in law books,
decided cases, law reviews, or legislative reports.
er
Moreover, the gap in Nebraska's statutory criminalisation of abortion until its
rectification five years after the Amendment is no obstacle to counting Nebraska's
lawmakers among those whose protection of mothers and unborn children is evidence
pe
of the public meaning of "any person" in the legal and moral thinking of legally
informed ratifiers and thus in the Amendment itself. 28 And, as we have seen, Nebraska's
statutory reinforcements to the common law's imperfect but real condemnation of all
ot
elective abortion were all done, in 1858, 1866 and 1873, under the heading, or within
the category, of Offenses against Persons, or against the Persons of Individuals (this last
being the term under which Blackstone considered the right to life of the child in the
tn
womb, as distinct from the rights of artificial persons – corporations).

rin
sec. 386, briefly reviews the conflict between the courts of Massachusetts (and New Jersey) and
Pennsylvania, and prefers the latter: abortion with the mother’s consent is indictable at common law
ep
without allegation or proof that she had been quick with child. The topic of quickening seems,
unsurprisingly, to have lost its interest by the time of Joel P. Bishop’s 3 rd ed. 1865. Consider also the
dictum in Lamb v State 67 Md 524, 10 A. 208 at 208 (1887): "it has been frequently held by courts of high
character that abortion is a crime at common law without regard to the stage of gestation."
28
Pr
Nor does it invalidate Witherspoon's count to 27, which was framed as "At the end of 1868,
twenty-seven of the thirty states with antiabortion statutes prohibited attempts to induce
abortion before quickening." Nebraska's statute did prohibit such attempts before quickening,
and did derogate from the common law, in relation to a wide class of pre-quick abortions, though
not, as Tang has noted, all pre-quick abortions.
58
West Virginia
Tang's account of the State of West Virginia, carved out of Virginia and established as a
d
separate state during the Civil War, is another astonishing series of errors; sorting them
we
out confirms that the state has indubitably been correctly counted among the 28
prohibiting elective abortion under criminal sanction at all stages of gestation.
Tang sets out to show just two things: (i) that Virginia's 1848 abortion statute
was not adopted or continued by West Virginia when it parted from Virginia in October
vie
1863; (ii) that its law from 1863 until the adoption of a new Code in 1869 or 1870 did
not prohibit pre-quickening abortion.
Step (i) Tang says "No speculation is needed" to reach the conclusion that
re
"Abortion was one crucial topic on which West Virginia made a different choice" in
1863, on parting from Virginia. But that conclusion is, in truth, a speculative and
entirely implausible inference, the essential premise of which is an elementary
er
misreading by Tang.
His starting point is the remark in a 2017 law review article that West Virginia
adopted "most of Virginia's laws." Tang seems to reason that since most does not mean
pe
all, maybe the new state didn't adopt Virginia's abortion statute. No one has ever said it
didn't, but he seems to think we can infer that it didn't! How? Before we set out on
Tang's route to a speculative conclusion, we should note (as Tang does not) that the
ot
next sentence after the quoted law-review remark gives the substance of the text of the
provision (art. XI.8) of the Constitution of West Virginia defining the succession of laws.
The provision reads:
tn
Such parts of the common law and of the laws of the State of Virginia as are in
force within the boundaries of West Virginia when this Constitution goes into
operation, and are not repugnant thereto, shall be and continue the law of this
rin
State until altered or repealed by the Legislature. (emph. added)

So "most" did mean "all" – all the provisions of Virginia law that were operative in West
Virginia before separation (and compatible with its new Constitution) must continue
ep
until changed (and those provisions included most of the then totality of Virginia laws).
So Tang has set out on a wild goose chase. We could stop there. But let us grant him his
premise, arguendo, and see where it gets him.
Pr
Tang's next move. We can infer (he maintains) that the new state made an
exception to its constitution's command for abortion law in 1863, on the basis that in
59
1868, when the draft new Code was presented to the legislature by the commissioners,
it was found not to prohibit pre-quickening abortion (see step (ii) below), and from this
d
we can read backwards to the position in 1863. Why? Because in 1863 the
we
commissioners had been asked to state "the laws now in force in the State." Ergo, the
1868 draft (enacted in 1869 or 1870) reveals what "West Virginia's code drafters
deemed to be the law in force in the state as of 1863," and it differs from Virginia's by
not prohibiting pre-quickening abortion (see step (ii)).
vie
But this move is absurd, because the commissioners had been charged (and Tang
himself quotes the words) with "revising, collating, and digesting into a code the
statute laws now in force in this State" (Tang's italics, our bolding). Tang has overlooked
re
the first word, which calls on the commissioners to propose revisions to the State's
laws. So nothing whatever can be inferred about the content of West Virginia's abortion
law in or after 1863 from the content of the commissioners' proposal to revise it; by
er
including a provision in the draft code they simply did not "deem" that very provision to
have been the law in or since 1863. There is no reason at all to doubt that the content of
Virginia's abortion law remained, by command of West Virginia's constitution, fully in
pe
force in West Virginia from 1863 until it was revised in 1870.
That is the end for Tang's entire treatment of West Virginia. We could (again)
stop there. But let us again press on to see what further fallacy his argument may
ot
involve him in.
Step (ii). Did West Virginia's 1870 law (and therefore, Tang fallaciously infers,
tn
its 1863 law) permit pre-quickening abortion? Yes, says Tang. Here are its terms, as
Tang states them:
Any person who shall administer to... a woman, any drug or thing, or use any
rin
means, with intent to produce abortion or miscarriage...shall be confined in the

penitentiary not less than one nor more than five years.
Tang has without indication omitted after "intent to" the words "destroy her unborn
ep
child, or to." With indication by elision marks, he has also, and this time more
pardonably, omitted "and shall thereby destroy such child, or produce such abortion or
Pr
60
miscarriage." There is also a final sentence exempting any act done in good faith "with
the intention of saving the life of such woman or child."29
d
But no matter. What is Tang's argument to show that this clause, despite every
we
appearance, had no application to pre-quickening abortion? Of all the manifestly failed
arguments in Tang's paper, this may be the most egregious. We will quote him, omitting
most of the dead-wood references to his inferences back to 1863 (step (i)):
The dispositive inference turns on West Virginia's refusal to codify the italicized
vie
portion of Virginia's law.30 Whereas Virginia explicitly punished abortions that
led to the death of "a child not quick," West Virginia lawmakers... instead
retained only the first half of Virginia's provision: a one-to-five year prison
re
sentence for an abortion resulting in the death of a quick child. The public
in West Virginia would have accordingly understood pre-quickening abortions to
be lawful... (bolding added) er
These sentences, as Tang wrote them, were directing attention towards the alleged
retrospective inference (ramshackle and collapsed) from the 1870 Code to the law in
1863 (and thus also in 1868). But his argument depends on the meaning of the Code as
pe
adopted in 1870 to govern the state from then on (whether or not it also allowed the
public to read back, as he exotically claims, through (or from) 1870, to 1863). And
about the meaning of the clause, his key premise is: it "retained only the first half of
ot
Virginia's prohibition: a one-to-five year prison sentence for an abortion resulting in the
death of a quick child."
False. The 1870 clause does not retain any reference to "a quick child", any more
tn
than it retains (as Tang rightly notes it does not) a reference to "a child not quick." The
1870 revision (presumably as proposed by the commissioners in their capacity as
rin
29Thus the 1870 provision, sec. 8 of c. 144 "Of Homicide and Other Offenses against the
Person," reads:
8. Any person who shall administer to, or cause to be taken by, a woman, any drug or other
ep
thing, or use any means, with intent to destroy her unborn child, or to produce abortion or
miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage,
shall be confined in the penitentiary not less than one nor more than five years. No person,
by means of any act mentioned in this section, shall be punishable where any such act is done
in good faith, with the intention of saving the life of such woman or child.
Pr
This was revised in 1882 (still as sec. 8 of the same chapter), simply to increase the penalty to
three-to-ten years.
30That is, its final element (see p. 62 below): "...or if the death of a child, not quick, be thereby
produced, by confinement in the jail for not less than one nor more than twelve month."
61
revisers rather than mere collators) simply did away with the whole issue of
quickening, a concept that by 1868 let alone 1870 lacked all credibility among doctors
d
and legislators, and the writers of national criminal law treatises.
we
And notice that "Virginia's prohibition" was not contained (as Tang claims in
stating his key premise) in its provision for sentencing/punishing. Virginia's 1848
statute elegantly distinguished a universal prohibiting of all elective abortions from a
bifurcated provision for sentence/punishment. The sentence/punishment, but not the
vie
criminal prohibition implied in the definition of the offense, varied according as the
destroyed or miscarried child had or had not been quick. Here, in slightly simplified
form, is Virginia's 1848 statute (undoubtedly operative in the territorial space of West
re
Virginia before and after 1863):
Any free31 person who shall [do anything to] any pregnant woman...with intent
thereby to destroy the child with which such woman may be pregnant, or to
er
produce any miscarriage, and shall thereby destroy such child, or produce such
abortion or miscarriage, unless the same shall have been done to preserve the
life of such woman, shall be punished,
pe
[That completes the prohibition, and the bifurcated provisions for sentencing or
punishments are then set out in what immediately follows]
if the death of a quick child be thereby
ot
produced, by confinement in the penitentiary, for not less than one nor more
than five years, or if the death of a child, not quick, be thereby produced, by
confinement in the jail for not less than one nor more than twelve months.
tn
(Tang's italics, referred to at p. 61 at n. 30 above)
So what did the revisers/codifiers in West Virginia do, in their clause set out and
rin
described above? They eliminated the need to prove pregnancy, and to prove the
destruction of the child or completion of the abortion, and they of course eliminated the
outmoded quick/not quick bifurcation of punishments. As to scale of punishment, they
ep
opted to retain only the higher level, one-to-five years. And this level of penalty, fairly
31
Pr
The 1863 Constitution of West Virginia contained a clause, dictated by Congress, providing
for the retention, but tapering off, of slavery. This remained in effect until slavery was abolished
in the state and nationally in 1865, at which point this word "free" became otiose both in Virginia
and in West Virginia where, as we have said, this abortion provision undoubtedly remained in
force until the Code revision of 1869/70.
62
standard among the states by 1870, was commensurate with another thing the codifiers
did: their necessity exception, not noted by Tang, included acts necessary to save either
d
the mother or the child.
we
In short, Tang's fantasy-invention – on the back of forgetting the word "revising"
– of an abortion law operative only in West Virginia and only from 1863-1870, a law
supposedly knowable only from its proposal in 1868 for enactment as a future-
regarding law, and never hitherto mentioned by anybody, would have got him nowhere
vie
even if it had happened to coincide with reality. For that law when enacted in 1870 was
a cast-iron prohibition of elective abortion at all stages. And the Virginia law of 1848
that in the real world was operative in the territorial space of West Virginia from 1848
re
to 1870 prohibited all complete abortions, while punishing quick and pre-quick
distinctly (and differently).
No state (we are happy to be able to say) could be more securely among the
er
27/28 than West Virginia.
Texas
pe
For Texas, Professor Tang has reserved the tallest of his tales and the most
virtuoso of his constructions of new meanings from old sentence-fragments. We will
paraphrase his account before attending to it in his own words and those of the Texas
ot
case out of which he has created everything he thought sufficient to show that
Witherspoon and his pro-life followers have contradicted the facts.
The Texas statute of 1858,32 Tang tells us, preserved the common-law immunity
tn
or right to pre-quickening abortion down to the ratification of July 1868. We know this
because we know that it preserved the right all the way down to 1907, when Texas gave
abortion "an expanded definition [which] was meant to mark the state's departure from
rin
the prior legal understanding in which pre-quickened [sic] abortions remained lawful."
Nothing whatever, perhaps, can be cited from the treatises, digests and cases of the
ep
32 Actually, in its essentials, of 1856 (as the case discussed by Tang states correctly), with a
supplement in 1858 to provide (as misdemeanors) for attempts that do not result in abortion;
Witherspoon, on the penultimate page of his 1985 article, the target of Tang's critique, gives the
Pr
citations (in Bluebook format): Act of 1854, sec. 1, 1854 Texas General Laws 58; Act of Aug. 28,
1856; Texas Penal Code art. 531-36 (1856); 1858 Texas General Laws 172; Act of Mar. 20, 1907,
ch. 33, 1907 Texas General Laws 55; and then gives the citations to the 1907 House and Senate
Journals proceedings on the 1907 amendment: H.R. 140; 1907 Texas House J. 633-4; 1907 Texas
Senate J. 472.
63
preceding 50 years to signal this legal understanding, but that doesn't matter because
"one powerful, Texas-specific piece of evidence confirms [the] conclusion"33 that in
d
1858 "Texas simply continued with the existing common law view." That evidence is "a
we
1915 Texas Court of Criminal Appeal ruling saying so."
Tang gives an abbreviated version of the "1858 statute" –
making it a crime for any person to "designedly administer to a pregnant
woman... any drug or medicine [or] any means whatever, externally or internally
vie
applied" such as to procure an abortion.
He goes on the say that in Gray v State of Texas (1915) the Court
[1] observed that the state legislature later amended the 1858 provision, in
re
1907, to define the term "abortion" to mean "the life of the fetus or embryo shall
thereby be destroyed in the mother's womb, or that a premature birth thereof be
caused." er
[2] The legislature's decision to expand the definition of abortion to
include the destruction of an embryo, a term typically reserved for a fetus less
than eight weeks old [citation to an online 2021 medical brochure] was
pe
significant. [3] For as the Texas Court of Criminal Appeal explained, the 1907
law's expanded definition was meant to mark the state's departure from the
prior legal understanding in which pre-quickened abortions remained lawful. [4]
ot
The Court began with the familiar observation that "at common law...an abortion
can be [legally] produced at any time after conception and before the woman
was 'quick' with child." [5] The Court then reasoned that Texas legislators
tn
expanded the definition of abortion in 1907 "for fear that the courts of the
state" would continue abiding by this common law view. [Gray, 178 S.W. at
338] [6] And so the State explicitly expanded the law's application to the
rin
destruction of an "embryo" in order to "prevent that construction of the

[abortion law] as it formerly existed." [Id.] [7] In Texas, in other words, the law
that existed before 1907 was the settled common law understanding that
ep
Pr
33
Tang says that the conclusion is also supported by the "circumstantial arguments [that he
will give] at greater length below in the context of four states [California, Illinois, Louisiana,
Nevada, to which he has subsequently added Oregon] with similarly worded statutes." See pp.
66-70 below.
64
women had the right to obtain an abortion before quickening. [Tang's italics, our
bolding, underlining and enumerators]
d
And there Tang ends his discussion of Texas. The sentences we have labelled [2], [3],
we
[5], [6], and [7] are hokum. More formally, they are exegesis of a kind that is misleading
and unwarranted even in the best of circumstances, and simply unacceptable when
readers do not have the victimized text in front of them.
The "ruling of the Texas Court of Criminal Appeal" is an obiter dictum – about as
vie
obiter as they get 34– in a majority Opinion that the dissentient tersely said contained
"several serious errors;" on a different ground and without allusion to these obiter and
related passages, it was swiftly reversed at rehearing, as the report makes plain a few
re
pages later. Here is the dictum in its entirety (with enumerators added for discussion):
[a] A careful review of the authorities indicate [sic] that at common law an
abortion could not be produced upon a woman unless and until the child was
er
“quick” within her womb. [b] The courts of our various states differ as to this,
most of them holding that an abortion can be produced at any time after
conception and before the woman was “quick” with child. [c] We, of course, do
pe
not know for certain why our Legislature added said clause to article 1071,
quoted above, as it did, unless it be for fear that the courts of this state might
hold [cc] that an abortion could not be produced on a woman, unless she was
ot
“quick” with child, as contradistinguished from being pregnant, and [ccc] the
stage of pregnancy only embracing the early stages of the embryo or fetus.
[d] As we understand this addition to this article, it was not intended, and should
tn
not be construed, to restrict the definition of abortion, but to add to it instead,

and [dd] to prevent that construction of the article as it formerly existed in the
particulars mentioned.
rin
This strange dictum, in parts ungrammatical and self-contradictory or substantially

unintelligible,35 gets nowhere near affirming what Tang's sentence [5] unambiguously
ep
34 The issue was stated in the preceding paragraph, and had nothing to do with whether the abortion
charged was early- or late-term:
Appellant's contention is that this indictment is fatally defective because it fails to allege that by
Pr
reason of the means applied to said Mrs. Moore “the life of the fetus or embryo in the womb was
destroyed, or that a premature birth from the womb was caused."
35 Thus in [a] "abortion could not be produced" must refer to criminal (indictable) abortion, but
in [b] "abortion can be produced" must refer to non-indictable abortion (or else to a view of the
65
claims it affirmed, namely that the courts of the state had been abiding by the common
law view, and that the legislature expanded the definition so as to prevent them
d
continuing to do so. Contrary to Tang's [2] and [6] it does not distinguish between the
we
adding of "embryo" and the adding of "foetus." Still less does it say or imply what Tang's
[2] asserts or insinuates, that the 1907 expansion consisted in the adding of "embryo."
What the legislature relevantly added in 1907 was the whole definition of
"abortion." And the circumstances of the addition, as disclosed in the 1907 statute itself,
vie
make it vanishingly improbable that the legislature had the "fear" postulated, as a
hypothesis, by the Gray dictum [c], or the intention confidently announced as a certainty
by Tang [3] and [6]. Here is the 1907 Act, italicising what it added in re-enacting Penal
re
Code art. 641 (otherwise unchanged since 1856), and bolding the words that describe
the circumstances, which indicate at least a main part, perhaps all, of what the
legislature actually feared or was concerned about:
er
An Act to amend Article 641 of the Penal Code of the State of Texas, relating to abortion, and
defining the meaning of that term, and providing punishment for those guilty of the offense of
abortion as defined.
SECTION 1. Be it enacted by the Legislature of the State of Texas :
pe
Article 641. If any person shall designedly administer to a pregnant woman, or knowingly
procure to be administered with her consent, any drug or medicine, or shall use toward her
any violence, or means whatever, externally or internally applied, and shall thereby
procure an abortion, he shall be punished by confinement in the penitentiary not less than
two nor more than five years; if it be done without her consent, the punishment shall be
doubled.
ot
By the term "abortion” is meant that the life of the fetus or embryo shall be
destroyed in the woman's womb , or that a premature birth thereof be caused.
SEC. 2. The fact that Article 641 of the Penal Code , which relates to the offense of
abortion, does not define said offense, and is therefore inoperative, creates an
tn
emergency and an imperative public necessity that the constitutional rule requiring bills to
be read on three several days in each house, should be, and is hereby suspended , and that
this act take effect and be in force from and after its passage, and it is so enacted.
The whole notion, pressed by Tang, that this was an amendment designed to terminate
rin
a common-law right that Texas women – unlike their sisters in almost all other states –
had been enjoying since before 1856 is sheer fantasy. That it is fantasy can be
confirmed by examining the annotations to the Code at any time before or after 1907,
ep
and the forms of indictment/information for abortion in use (as those annotations often
disclose)36 at all times since 1856 down, without relevant variation, to Roe. We would
Pr
common law as not using quickening as a criterion of indictability). In [cc] "abortion could not be
produced" must once again refer to criminal (indictable abortions."
36 See for example John P. White, Reporter for Texas Court of Criminal Appeals, The Penal Code of the
State of Texas...Annotated to include the 35 Vol. Texas Criminal Appeal Reports together with Forms for
66
like to know more about what judicial intimations had created the emergency
warranting the normally unconstitutional legislative haste.37 But it is unlikely, to say
d
the least, that the Code provision's sudden supposed inoperability had anything to do
we
with a common law right or liberty or conception of indictability. That the legislature,
51 years after introducing the Code prohibition of abortion of "a pregnant woman," had
tired of tolerating this Means–Roe–Tang “liberty,” and had proceeded to overturn it
under emergency rules (by votes of 98:0 and 94:0 in the House and 22:0 and 23:0 in the
vie
Senate),38 can likewise be dismissed as wholly improbable.
Tang's entire notion that James Witherspoon, who was among counsel for Texas
on the rehearing of Roe, had read the legislative proceedings of 1907, knew the relevant
re
law and practice of Texas since 1856, and wrote in 1985 as formerly Briefing Attorney
for the Court of Appeals for the Third Supreme Judicial District of Texas, was in
fundamental error when he put39 Texas among the 27 states that had "prohibited
er
abortion before quickening by the end of 1868" (and in fact in 1856), is absurd. Texas
abortion charges (indictments or informations) had for decades, doubtless since 1856,
alleged that the accused had aborted A.B., a pregnant woman/female – not "a woman
pe
quick with child."40
That ends Tang's attempt to show that in eight (later seven) instances the pro-
ot
life listing of 27 states that criminally prohibited abortion before the end of 1868 is
"contradicted" by "clear and specific historical evidence." In not one of these instances
has he unearthed any historical evidence that could even raise a doubt worth
tn
investigating further.
rin
Indictments (Austin 1897), pp. 390-393. It was essential to common-law indictments for abortion (save
in a few states such as Pennsylvania) that they allege that the woman was quick with child.
37 On its face, s. 2 of the 1907 statute states that what rendered the Code provision inoperative was its
failure to define abortion. Yet in December 1908 the Court of Criminal Appeal rejected (though without
explaining itself) a plea that the Code provision in its pre-1907 wording was "unconstitutional and void, in
ep
that it does not sufficiently define or describe the offense of abortion." .Jackson v. State, 55 Tex. Crim. 79,
89, 115 S.W. 262, 268 (1908) (see 266 for the Code wording under consideration).
38 James S. Witherspoon, "Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth
Amendment," n. 3 above at 69. (We have read the House Journal, but the Senate Journal for that year is
Pr
inaccessible to us).
39 Ibid. at nn. 15, 18.
40See e.g. Watson v State 9 Tex. App. 237 (1880); Navarro v State 24 Tex. App. 378 (1887)
("A.B. a woman being pregnant").
67
The final five: California, Illinois, Louisiana, Nevada, Oregon
We turn finally to the four (later, five) instances where Tang thinks the pro-life
d
listing's error is clear enough to assert, but ("out of an abundance of caution") not fully
we
proven: "less decisive." They will not take long, since the errors that Tang himself has
indisputably made, especially in relation to Massachusetts and Vermont, eliminate the
doubts he tries to raise here at the tail of his enterprise.
The extreme weakness of Tang's position becomes evident the moment he starts
vie
unfolding the argument. These, he says, are not states that said their ban applied
"whether quick or not," nor states that explicitly punished quick and non-quick
differently, nor did they, like Connecticut, "drop a previous statutory requirement that
re
the pregnant person must be 'quick with child,' thereby implicitly expanding the law's
scope." (But Oregon did.) Instead, they used "generic language" prohibiting "any"
abortive acts in relation to "any woman then being with child" (or nearly identical
er
formulae). So they were not "striking out on their own," but using language "that was
materially identical to that used in the seven states discussed in the preceding section" –
for example Massachusetts and Vermont. "And in all seven states, that language was
pe
understood to permit, not prohibit, pre-quickening abortions." Thus Tang.
The reality, as we have shown, is the exact converse. Such language was not so
understood in any of the seven. In all of them, "any woman" meant any woman, and the
ot
statute prohibited pre-quickening abortions. By 1859, the supreme courts of

Massachusetts and Vermont had unequivocally ruled as much (see pp. 36-37 and 32-33
above). So it is wholly improbable, indeed inconceivable, that when California used
tn
similar language in re-enacting its 1850 legislation in 1861, and Nevada used it in the
same year, Oregon in 1864, and Illinois in 1867 they, or anyone, had the illusion that the
common-law rule remained available as a defense.
rin
And even though he had overlooked or mangled the evidence in relation to his
seven "decisive" cases of pro-life mischaracterization, should not Tang have asked
himself what possible practical difference it could make that in Connecticut in 1860
ep
(and Oregon in 1864), the legislature was

eliminating the law's earlier, hotly-debated requirement that the pregnant
person be "quick with child," lawmakers implicitly extended its scope to
Pr
abortions performed before quickening
68
whereas in his slam-dunk seven, and in four of his not-certain five, they were using
precisely or substantially the same language to eliminate the common law's equally (or
d
more) "hotly-debated" quick-with-child requirement?
we
More tellingly still, he should have considered how indictments were framed in
each of these "generic language" states, after their adoption of statutes making
indictable the abortion of "any woman pregnant with child" or "any pregnant woman"
or "any woman." If the common law was not "derogated" from by these statutes, no
vie
indictment for any abortion could be brought without alleging that the woman aborted
was "quick with child." Where, in any of these 12 states (or in any of the 28) were there
form-books, treatises, or court decisions showing deference to that requirement of the
re
common law? How could either the prosecution or defense counsel, in real life, have
tolerated so gross a mismatch as Tang postulates (and tries to prove) between the
unequivocal words "any woman," "any pregnant woman," and the common-law
er
restriction to women "quick with child"?
That brings us to focus, finally, on Oregon. Tang reaches forward nearly half a
pe
century to find state counsel in Oregon in 1909 (State v Dunn) seeking to persuade the
appellate Court – in a case where the crime charged was not abortion but where the
conviction (of a doctor for corrupting a minor) had been quashed because the trial
ot
judge had permitted questions to a witness that tended to suggest she had carried out
an abortion on the minor at two or three months' gestation, and the state appealed – to
reconsider that quashing, on the remarkable ground that pre-quick abortion is not a
tn
crime in Oregon, and citing mainly the old, pre-statute, common-law cases such as
Parker in Massachusetts and Cooper in Iowa. The Court regarded the argument as
puzzling and self-defeating on counsel's own technical argument about prejudicial
rin
questioning, but because the appeal could be disposed of on easier grounds declined to
decide on the truth of that argument's minor premise (pre-quick abortion no crime), "a
question of such importance."
ep
There is slim chance that this last-ditch argument of counsel and suspension of
judgment by the court illuminate the beliefs and assumptions of legislators, courts and
practitioners (or indeed the public) in the years and decades after 1864. That chance is
Pr
slimmed still further when one notices that: (i) the Court held, apparently unchallenged,
that the jury would take the impugned suggestion about the witness as implying that, by
69
carrying out a pre-quick abortion, she had committed a felony (a holding that
presupposes that popular belief in Oregon in 1909 was just the opposite of what Tang –
d
who everywhere else appeals to supposed popular as opposed to elite opinion – insists
we
was public belief in 1868); and (ii) state counsel's first authority, Joel Bishop's
Commentaries on the Law of Statutory Crimes, 3rd ed. 1901, sec. 754 (on the meaning of
"quick") plainly holds, a page or two earlier, under the title "746. Under statutes, as to
quick with child," that –
vie
Our statutes against this offense [abortion], with few exceptions, do not in terms
require a quicking; and, when they do not, they are not judicially construed to
require it. Thus, under the following expressions, the crime may be committed
re
at any time during gestation: "wilfully administer to any pregnant woman...".etc..
There are no counter-instances, and nothing in any part of the treatise's discussion of
abortion gives support to counsel's or Tang's point.
er
Oregon is an outlier: both its 1854 prohibition of aborting a woman pregnant
with a quick child and its 1864 prohibition of aborting "any woman pregnant with a
child" define the offence, or establish its penalty, as manslaughter (and correspondingly
pe
require proof that the abortion produced the death of the child (or the mother); by 1909
it was the only state save Alaska (which in 1899 had copied its statute) to retain
manslaughter as the sole penalty or characterization for any and all elective abortion.
ot
Counsel's second authority in Dunn was Wharton's Law of Homicide, 3rd ed. 1907, sec.
375, which advanced his cause and certainly Tang's no further, since it pays no
systematic attention to elective abortion as such, and concerns prosecutions for
tn
manslaughter under a statute making consensual or self-induced abortion

manslaughter when either the mother or a quick child perishes; the treatise goes no
further than to say that under such a statute the prosecution must prove that the
rin
unborn child was quick in the sense employed by Tang. No surprise there, and nothing
that read in context supports the thesis that Oregon's statute, devoid of reference to
quickness, somehow preserved the common law rule – let alone in the ordinary context
ep
of prosecution not for causing the death of the mother but for abortion.
There is nothing in Dunn's inconclusive to-and-fro that goes any significant
distance towards outweighing the presumption, admitted by Tang tentatively here and
Pr
decisively in relation to several other states, that where the legislator – as in Oregon in
1864 – removes a prior statutory restriction to any woman pregnant with a quick child,
70
or any woman quick with child, it knew what it was doing, and the public meaning of its
new wording had and has that wording's natural effect as reaching any pregnant
d
woman.
we
There remains, then, only Tang's last throw:
All these four states imposed harsh punishments on the procedures covered
under their laws – generally41 a statutory minimum sentence of two years in
vie
prison with a maximum of five years, ten, or even more....
These harsh sentencing provisions create a strong inference that the laws
only applied in the most culpable kind of abortion procedures: those performed
re
on a quickened fetus.
The inference is nugatory. Louisiana is one of this four, and its 1856 statute's penalties
were one to ten years (hard labor). How different is this from Massachusetts' 1845
er
statute, always certainly applicable to abortion at all stages of gestation, which had a
mandatory one to seven year prison term if the woman survived, five to 20 years if she
died? (And a rational legislator in Louisiana in 1856 or California in 1850 or 1861 could
pe
ask why the accident of the mother's not dying should materially affect the deterrent
punishment of a crime so lethal to the unborn and always potentially lethal to their
mothers, whatever the age of the unborn at the time of the criminal acts.)
ot
That abortions are "most culpable" post-quickening is Tang's view. Many of the
legislators in states that, when decisively repudiating the common-law quickness
doctrine, imposed relatively severe minimum penalties for abortion may well have
tn
shared the view unambiguously held by Horatio Storer and the other great medical
nineteenth century campaigners for abortion law reform, that the risks to the mother
and the consequent need for deterrent punishment are greatest early in pregnancy,42
rin
and perhaps also his clear view that the moral wrong done to the unborn is the same at
every stage from conception.43
ep
41 Actually, in Louisiana (and Oregon) the minimum was one year plus a steep fine. Illinois
had abandoned the common-law quickness restriction in its statute of 1827, which had no
Pr
minimum term of imprisonment but a maximum of three years; this was retained in 1834 but
revised upwards in 1867 to a two-year minimum (with 10-year maximum).
42 Storer, On Criminal Abortion in America (1860), 8.
43 Id., 10.
71
The big picture
Aaron Tang's enterprise was doomed from the outset to yield precisely nothing.
d
He thought he could keep attention on the inferred attitudes of "the ordinary public"
we
and thus avoid grappling with the assumptions, judgments, and responsibilities of
legislators, public officials, and judges, and above all prosecutors and defense counsel.
None of these informed and responsible persons could in real life have tolerated the
gross mismatch that Tang postulates (and tried to prove) between the unequivocal
vie
words "any woman," "any pregnant woman," or "any woman pregnant with child," and
the postulated continuance of the common-law rule that any and all indictments for
abortion must aver that the woman was "quick with child."
re
No such mismatch, or secret (unarticulated) yet publicly assumed and shared
restriction, could have existed even for a couple of years, let alone 50 as Tang maintains
for Texas and Oregon, without leaving clearly visible traces in legislative debates, court
er
judgments, and above all law treatises and practitioners' manuals. We know of no
treatise or document that affords the slightest evidence for Tang's basic position: that
for many decades there co-existed numerous states where "any woman" or "any
pe
pregnant woman" or "any woman pregnant with child" was peacefully taken to mean
what it says and to have abolished the common-law restriction to women with "quick
child," alongside numerous states in which the identical statutory formulae were taken
ot
to have had no such effect, and every abortion prosecutor must prove that the child had
quickened. The conclusion is inevitable: Tang's basic position is a historical fantasy.
Nor could the eventual abolition of the common-law's chokehold on abortion law
tn
and indictments – in some states but not others with identical statutes! – have gone
unmarked by public campaigns, propaganda, and records in, again, the legal sources and
books which Tang has left all but unmentioned in his paper.
rin
And in the end, Tang had no evidence of public beliefs about what the law was,
and what their legal rights were, save the high-level legal sources that are his staple
resource, such as it is, throughout the paper. James Mohr's equivocal assurances, that
ep
abortion was "open" in say early nineteenth-century America, are belied by the evident
evasion and double-talk resorted to by all the contemporary writers and advertisers
cited by Mohr. One does not prove that anyone thought pornography was legal – and
Pr
consistent with the public morality upheld by the states' constitutional police power –
by showing that lots of people furtively made it available and lots more availed
72
themselves of it, or that the police often and in some places always turned a blind eye.
Abortion, a much graver matter, was in somewhat like case, even before one factors in
d
the double threat of murder conviction (for death of mother or live-born child/live-
we
miscarried fetus) hanging over every single induced elective abortion in the common-
law world for half a millennium and more.
Blackstone's Commentaries, with its prominent and even ringing affirmation of
the unborn child's right to life, was not written for the "general public" in Tang's sense.
vie
But it was written for a much wider audience than law students and professionals, and
did not fail in that wider purpose. A sound originalism will focus on the understanding
and beliefs of the publicly elected representatives who voted for laws and ratified
re
constitutional amendments. We can be certain that they did not share any of the theses
for which Tang has tried to argue in his paper, in opposition to the historical
testimonies in James Witherspoon's admirably honest and sound "Re-examining Roe:
er
Nineteenth-Century Abortion Statutes and the Fourteenth Amendment," and to the
arguments in our own amicus Brief in Dobbs.
pe
ot
tn
rin
ep
Pr
73

Indictability of Early Abortion C. 1868

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Indictability of Early Abortion C. 1868

Uploaded by

Copyright:

Available Formats

ed

AMERICAN JOURNAL OF JURISPRUDENCE 59 (2014)

F/G: 1850 statute

Louisiana: unspecified date after 1868, despite terms of 1856 statute

F/G: 1864 code; argument of 1909 state prosecutor quite inconclusive

weeks gestation. So if you want to be an originalist, you should acknowledge an

abortions at any point in pregnancy" (emph. added).

history proves prohibitions of elective abortions constitutionally obligatory

prohibitions. Most were classified as defining “offenses against the person,” 1

1 See id. at 48.

quoted from below in our discussion of Iowa).

The state-count claim

As Tang reports, the Supreme Judicial Court in 1845, in Commonwealth v. Parker,

expediency of enacting a law making of abortion a misdemeanor." On January 31, the

what circumstances would it be an “offense indictable by law” to allege that a

the practice of pre-quickening abortion.

woman' meant any quickened pregnant woman."

"the procurement of an abortion, under circumstances not allowable by law, is an

Alabama stays among the 27.

What about Iowa? Mishandled even worse than Massachusetts.

next following emphasized that self-induced abortion was the issue:

crime under the act of 1858.

To attempt to produce a miscarriage, except when in proper professional

"Quick" and "quickening"/ "quickened"

reduce the vagueness of “necessary” by appropriately qualifying the degree of risk to

states that had clearly prohibited pre-quickening abortions. He has drastically

ambiguously described as "a contested reading") retains – and tries in footnotes to

abortions." [Tang's emphases.]

criminalized abortions at all stages of pregnancy.

New Jersey too belongs very securely within the 27.

Our "stunning concession"

"non-indictable conduct." [fn. [Finnis/George] at.4]. But this same non-indictable

understood pre-quickening abortion to be "non-indictable," the procedure was

persons who sought access to an abortion. To such persons, the question is

and West Virginia...). The "pro-life advocates'" list stays at 28.

(7+4+1=12+2=14) Tang has erred – by blunder in those single- or double-asterisked.

as such, yes. Lawful or a liberty, no. A legal right, not at all.

each case a highly instructive one.

3James S. Witherspoon,"Reexamining Roe: Nineteenth-Century Abortion Statutes and the

1869," as a side-effect of eliminating the need to prove pregnancy.5 In relation to

the miscarriage of such woman.” By 1852, however, Indiana lawmakers decided

legislature revised the law to reach abortions performed on “any pregnant

Indiana's nearly verbatim" –

privilege for pre-quickening abortions. More specifically, Vermont’s 1846 law

relation to the motivations of the Vermont reform.

implausible—indeed, fanciful—claim Tang makes, that when Vermont in 1867 extended

Massachusetts reveal not a single conviction of a provider for performing a pre-

completely irrelevant in Massachusetts law after January 1845. Tang's misleading

that first sentence, together with the second:

question is controlled by a presumption that reforming statutes do not replace common

that although at the common law, as held in this commonwealth, it was no

plausibility to his misinterpretation of the case.)

statute to punish providers only for post-quickening procedures, in part because

10 Smith v. Gaffard, 31 Ala. 45, 51 (1857):

matter when an abortion was obtained. [quotation from a 1905 Connecticut

13 "For if a woman is quick with child, and by a potion or otherwise, killeth it in

A woman who commits or attempts to commit an abortion on herself, or who procures or

Tang's ten revisited

17 Smith v Gaffard 31 Ala. 45 at 50:

judgment, antithetical to Tang's stance:

18 The passage we have omitted for space reads:

Another sad parade of misrepresentations, masking evasion of the issue in

Pet'r Mississippi at 12]