The US supreme court recently ruled to overturn Roe vs. Wade. Part of the decision was based on abortion laws when the 14th Amendment was ratified. While I understand that cherry picking the 14th Amendment's ratification might confront an equal protection challenge, it doesn't deal with the fundamental finding in Roe. I.e. that determining a) a fetus was present and b) that the fetus died of non-natural causes would require an unreasonable search by the government in violation of an individual's 4th amendment rights. The first 10 amendments finished ratifying in 1791 when there were no abortion laws in the US. So, if the court's originalists base their opinion on what those authors intended, why do they believe were there no laws against abortion when the bill of rights was ratified?

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    Your question jumps the gun. First, it is widely stated that abortion was prohibited under common law at the point of quickening, so the presupposition is false. Second, when referring to statutory prohibitions, the question "why did the legislature pass / not pass a law prohibiting X" is generally off topic as fundamentally political and practically unanswerable. The simple answer is that the conversion to statutory law took decades, indeed a couple of centuries.
    – user6726
    Commented Jun 25, 2022 at 0:41
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    A plausible legal history question would be "What were the common law restrictions on abortion in the US and England prior to the late 1800's?".
    – user6726
    Commented Jun 25, 2022 at 0:43
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    questions on why the law is as it is are usually off-topic, and this one con tains some incorrect assumptions. It can probably be editedm to be a reasonable question, however. Commented Jun 25, 2022 at 1:25

1 Answer 1


Of course there were laws on abortions in 1791

There just weren’t any statutes because this was handled by the common law. Under that, abortions were legal until quickening (when the mother first feels the foetus moving) and murder after that. Quickening usually takes place around 15-17 weeks. The fact that the Mississippi law makes 15 weeks the cutoff is probably not coincidental.

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    Do you have a citation for that common law conjecture?
    – user121330
    Commented Jun 25, 2022 at 6:46
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    @user121330 added
    – Dale M
    Commented Jun 25, 2022 at 7:22
  • If this is true, (why wouldn’t it be?) then our favorite ideologues at SCOTUS sheepishly decided to forget about Amendment IX on the unenumerated rights protected, in fact, by the U.S. Constitution expressly. I would assume the relevant case laws came straight out of England. Although I am surprised to imagine what methods they may have used.
    – kisspuska
    Commented Jun 25, 2022 at 8:09
  • @kisspuska lots of things are legal under common law but prohibited by statute; "common law does not prohibit X" does not mean there is a right to X. Consider hacking. I'm fairly certain that hacking Stack Exchange's servers would not have been a crime in the 1700s, but that does not mean I have a constitutional right to hack SE now.
    – Someone
    Commented Oct 4, 2022 at 14:03
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    "legal" means "not prohibited by law"; it does not mean "specifically allowed by law."
    – Someone
    Commented Oct 4, 2022 at 18:23

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