On April 9, 2024, the Arizona Supreme Court reinstated a statute criminalizing those who perform abortions, except to preserve the life of the mother. The blogosphere and the networks were aghast that this statute was originally adopted in 1864. Is a statute better because its origins are of old, or is it worse? Liberals can’t make up their collective mind on this point.

The year 1864 is not surprising. The entire nation was in the middle of, not only a civil war, but also a national legal reform to protect the lives of preborn children. In 1859, the American Medical Association unanimously adopted a resolution “condemning abortion at every period of gestation, except as necessary to preserve the life of mother or child.” The stated reason was the increasing frequency “of such unwarrantable destruction of human life.”

The common law, as of 1776, and probably as of 1669 in North Carolina, made abortion a crime from conception.

“The moment the womb is instinct with embryo life and gestation has begun . . .”  the crime may be committed, State v. Slagle (1880).

These “facts of life” have been well known for two centuries. The very first two sentences of The Developing Human — Clinically Oriented Embryology (2nd ed 1977) by Keith Moore states:

“Development is a continuous process that begins when an oocyte (ovum) is fertilized by a spermatozoon and ends at death. It is a process of growth and differentiation which transforms the zygote, a single cell, into a multicellular adult human being.”

No new science has changed that truth in 50 years. Nor was it newly discovered in 1859.

The law caught up with science in the 19th century. By 1868, the vast majority of states criminalized abortion at all stages of pregnancy. The appendix to Dobbs v. Jackson Women’s Health lists several dozen statutes from the mid 19th century. Many of the state court decisions from the mid to late 19th and also the early 20th century made the point that these protective laws were motivated by a sincere belief that abortion kills a human being.

Dobbs notes that 13 of the territories that later became states criminalized abortion at all stages of pregnancy between 1850 (Hawaii) and 1919 (New Mexico). By the end of the 1950s, all but four states and the District of Columbia prohibited abortion, unless performed to save or to preserve the life of the mother.

In the 19th century, civil law also kept up with science by protecting the rights of unborn children from conception. The law of North Carolina was that the property, real and personal, of one dying without a will immediately vests in a child en ventre sa mere.

In 1823, a NC statute clarified: “[n]o inheritance shall descend to any person, unless such person shall be in life at the death of the person last seized, or shall be born within ten months after the death of the person last seized.”

Ten lunar months are 280 days. By 1839, a child, once conceived, could take a property interest under a will to “children.” In 1854 NC statutes clarified that “[a]n infant unborn, but in esse, shall be deemed a person capable of taking by deed as if he were born.”

Until Roe v Wade (1973), for all purposes beneficial to her, the preborn child was protected by the civil law and the criminal law of almost all of the nation. Law and biology were consistent and considered the child in the womb, en ventre sa mere, to be within the protection of law from conception.

Even after Roe v Wade most abortionists will admit that after conception the embryo is a living human being. I have debated two abortionists and deposed two others. They said, of course it is a living human being.Only politicians and the press deny this obvious fact of life.