This paper examines the legal foundations of abortion rights in the United States, tracing their origins from English common law's concept of "quickening" through landmark Supreme Court decisions. It analyzes how the Fourteenth Amendment's Due Process Clause gave rise to the substantive due process doctrine and, by extension, a constitutional right to privacy. Key cases discussed include Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey. The paper also addresses the legal status of the fetus, the evolution from quickening to fetal viability as the critical threshold, and the limits states may place on abortion access without imposing an undue burden on women.
This paper demonstrates effective use of legal case analysis as an argumentative framework. Rather than simply summarizing cases, the author draws doctrinal threads — privacy, substantive due process, fetal personhood — across multiple rulings to show how each decision builds on the last. This is characteristic of legal-historical argumentation, where precedent and interpretive evolution carry the analytical weight.
The paper opens with English and early American common law on abortion, then explains the constitutional foundation (the Due Process Clause) before tracing the privacy doctrine through Griswold, Roe, and Casey. Each section advances the central claim — that the right to abortion is grounded in the constitutional right to privacy — before the conclusion synthesizes the historical and doctrinal threads into a unified statement of current law.
Because the United States was a British colony, its common law is descended from British common law, which has something to say about abortion. Interestingly, it involves the concept of quickening. First mentioned in 1530, quickening is "the stage of pregnancy when movements of the fetus are perceptible" (quicken, v. 4, 1991). Quickening typically occurs in the fourth or fifth month of pregnancy (Murkoff & Mazel, 2008). Pope Innocent III enshrined this notion in religious law early in the 13th century (Bullough, 2001). Quickening was when he believed the soul entered the fetus (Bullough, 2001). Because there was no soul before that moment, abortion prior to quickening was considered a lesser crime — usually a misdemeanor, as Coke viewed it in 1648 (2001).
Formal, legislated law must also be taken into account. Not until 1803, with Lord Ellenborough's Act, was British law written to clarify the status of abortion (Keown, 2002). Under that statute, pre-quickening abortion deserved "a fine, imprisonment, the pillory, whipping, or a combination thereof, or transportation for a maximum of fourteen years" to the colonies, while post-quickening abortion deserved the death penalty (Keown, 2002).
In the United States, these standards initially held true. For example, James Wilson, one of the Founding Fathers, stated that "life begins when the infant is first able to stir" (1967). He held that "life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger" (1967). As part of the growing competition between doctors and midwives, state laws were passed that criminalized abortion, contraception, and knowledge about either (Bullough, 2001).
Not until 1829, in New York, was abortion made illegal — except when "necessary to preserve the life of such woman" (Bullough, 2001). This exception was called the "therapeutic" right to an abortion, which required two doctors to agree that it was therapeutic (Bullough, 2001). Later, New York criminalized all abortions (Bullough, 2001). These laws, however, were aimed mostly at protecting women against unsafe abortion practices (Hitchcock, 2006). Not until the federal Comstock laws were passed in 1873 was information about how to obtain an abortion made illegal, under the guise of public indecency (Bullough, 2001).
In the United States, the Constitution was the first legislated law, as opposed to common law. The 14th Amendment to the Constitution, passed in 1868, contains a clause known as the Due Process Clause:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (2010)
On its face, due process of law seems to refer to procedural protections such as police officers reading arrestees their rights. However, the Supreme Court has developed an entire theory around this clause called "substantive due process" (Stevens, 2003). One might interpret substantive due process as the underlying reasons why a law is just and fair (Stevens, 2003). Due process is mentioned in both the Fifth Amendment and the Fourteenth Amendment (The Declaration of Independence and the Constitution of the United States of America, 2010). The Fifth Amendment addresses only what the federal government may do, while the Fourteenth Amendment addresses what the states may do (Stevens, 2003). Substantive due process has many applications, but the one most relevant to abortion is the right to privacy.
The Supreme Court has interpreted the right to privacy broadly. In Meyer v. Nebraska (1923), the Court introduced the right to privacy in the family home, holding that people have "the right … to marry, establish a home and bring up children" (Garrow, 1998). Logically, if one has the right to bring up children, one would also have the right to not bring up children — and this was the line of reasoning used in the Poe v. Ullman defense of having contraceptives (1961). Justice Douglas supported this reasoning, writing:
As it stands, the historical notion of quickening has been replaced by the idea of fetal "viability," but the essential standard remains the same: women have the right to an abortion. Fetuses are not persons, and no judicial or legislative consensus has ever treated them as such. States are free to regulate abortions and to proscribe them once fetal viability begins, but not at the expense of the mother's life or health. Women's right to privacy encompasses the right to choose whether to procreate, without their spouse's consent. The right to privacy is enshrined in the substantive due process doctrine of the Constitution.
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