Alito on how Blackstone and Hale show the abortion was always illegal, not just "post-quickening"

From the document (does anyone have an OCR'd version?):

Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right.  Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had "never met with a case so barbarous and unnatural."  Similarly, an indictment from 1602, which did not distinguish between a pre-quickening a post-quickening abortion, described abortion as "pernicious" and "against the peace of our Lady the Queen, her crown and dignity."

That the common law did not condone even pre-quickening abortions is confirmed by what one might call a proto-felony-murder rule.  Hale and Blackstone described a way in which a pre-quickening abortion could rise to the level of a homicide.  Hale wrote that if a physician gave a woman "with child" a "potion" to cause an abortion, and the woman died, it was "murder" because the potion was given "unlawfully" to destroy her child within her.  As Blackstone explained, to be "murder" a killing had to be done with "malice aforethought, either express or implied."  In the case of an abortionist, Blackstone wrote, "the law will imply [malice] for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person:

"[I]f one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other.  The same is the case, where one lays poison for A; and B, against whom the poisoner had no malicious intent, takes it, and it kills him; this is likewise murder.  So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it."

Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be "with quick child"--only that she be "with child".


This to be pasted on all the liars who claim that Alito didn't address the "quickening" issue.  Looking at you, Damon Root

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