The following article appeared in Human Life Review, Spring 2006. Minor changes have been made for this posting. Copyright © 2006 by Mary Meehan
How the Supremes Flunked History
Joseph W. Dellapenna is a law professor who specializes in environmental law and has taught at Villanova University for three decades. He is a Unitarian, but says he might be described "as a lapsed Unitarian, for I find even that church too restrictive." Married twice, he has three daughters and two sons. He notes "several close encounters with abortion in my life, including professional and personal relationships with women who have had abortions."(1)
Dellapenna is also a fierce critic of Roe v. Wade, and has been for more than 30 years. As a young professor, he was studying population policy when the Supreme Court decided Roe in 1973. Justice Harry Blackmun had relied on two articles by law professor Cyril C. Means, Jr., for his Roe history of abortion law, so Dellapenna read the Means articles. He found some of their claims to be "seriously deficient even based on the evidence Means himself presented." Dellapenna started researching and writing about the history of abortion law and eventually submitted friend-of-the-court briefs in major abortion cases.(2) His criticism of Roe has been so strong that in the Fall 2005 issue of this Review, I mistakenly identified him as a right-to-lifer. He is not. As he explains in his huge new book, Dispelling the Myths of Abortion History (Durham, N.C.: Carolina Academic Press, 2006, $95), he believes abortion should be legal "up to eight weeks of gestation." He cites articles on "brain birth" to support his position, but does not actually argue for it in the book.(3)
His main focus is the history of abortion law in England and the United States. The English emphasis is important because English common law--the customary law, based on cases and precedents rather than statutes--often was decisive in early U.S. history unless replaced by specific statutory law.(4) American lawyers and judges had to know the common law. Dellapenna says there were no state anti-abortion laws until 1821, when Connecticut enacted the first. New York City, though, had passed a municipal ordinance in 1716 that barred midwives from administering "any Herb Medicine or Potion, or any other thing" in order to cause an abortion.(5)
Dellapenna shows that the late Prof. Means, who taught at the New York Law School, was wrong in claiming there was a common-law liberty to have an abortion. (If there were such a liberty, there might be a strong argument that the Constitution's Ninth Amendment protects it as a right "retained by the people.") He says the "history embraced in Roe could not withstand careful examination even when Roe was written." Research since that time has shown the Roe version of history to be even worse than many critics had thought. Sir John Hamilton Baker, an expert on English legal history who teaches at the University of Cambridge, has found and translated early case records that previously were available only in Latin or "Law French" (a leftover from the Norman conquest of England). California attorney Philip Rafferty, with much assistance from Baker, has gone deeply into those common-law cases. Dellapenna has drawn on their work and has done much of his own research on the medical history of abortion.(6)
In painstaking research, Baker and Rafferty uncovered early English abortion cases that the legal community--including the Supreme Court--did not know about in 1973. Rafferty, in his Roe v. Wade: The Birth of a Constitutional Right, documents over 100 English abortion-related cases that occurred before the American colonies declared their independence from England in 1776. His appendices, consisting mainly of verbatim case reports, provide an enormous amount of information on these and later cases.(7) The information shows that Justice Blackmun was clearly wrong about the common law. Legally speaking, Roe v.Wade is already tottering on the edge of a cliff. The Baker-Rafferty-Dellapenna research should help push it over.
Dellapenna calls Dispelling the Myths of Abortion History "an argumentative book." Indeed, it is. It's a book of ferocious intellectual combat in which he does not spare his adversaries. Prof. Means, he says, was general counsel of the National Association for the Repeal of Abortion Laws (NARAL) when he wrote one of the articles cited by Justice Blackmun in Roe. Dellapenna charges that Means "designed his research to support the political task of changing the abortion laws," missed much key evidence, and distorted other evidence.(8) Other scholars--including Linda Gordon, Angus McLaren, James C. Mohr, Leslie J. Reagan, John M. Riddle, and Laurence Tribe--come in for their share of criticism as well.
At 1,283 pages and over 8,000 footnotes, this is a massive book, one its author worked on for 15 years. For all its depth and richness, though, it does have real flaws. Typographical errors abound, suggesting over-reliance on a computer's spell-checking program. Spell-checking does not catch a real word that's used in the wrong place; so we find references to a crime "waive" and the second "waive" of feminism, as well as "phased" for "fazed" and "principle" for "principal" and "loose" for "lose."(9) Spell-checking doesn't catch places where the delete key didn't go far enough; so there's a reference to an abortion rate that is "five times more higher" than another and one to a process that "often has often been abused."(10) There are many such errors; in fact I've never before seen so many in one book. Although the typos are distracting, usually the reader can tell what is meant. More serious is the statement that a group of people who had handicaps as children "unanimously agree that they should have been allowed to die." The original source makes it clear this should read "not have been allowed to die."(11) There are also footnote references that give the wrong numbers of other footnotes,(12) something that often happens when notes are added or deleted during the revision process.
There are places where a description is confusing or contradicts something said elsewhere in the book. An account of Roe v. Wade indicates that attorney Sarah Weddington did not use in court plaintiff Norma McCorvey's claim that her pregnancy resulted from rape (a story McCorvey recanted years later). Yet elsewhere the same account says that "this lie, repeated frequently in open court, was carried up without question and appears in the Supreme Court opinion as well." But the page cited in the Roe opinion refers not to McCorvey's claim of rape but, rather, to a policy on rape and abortion proposed by a committee of the American Medical Association. The Roe opinion's description of "Jane Roe" (McCorvey's pseudonym) says nothing about a rape claim.(13)
All of this might be explained by the limitations of word-processing, the many interruptions of other work over a fifteen-year period, or sheer exhaustion. I would hope to see a revised edition of Dispelling the Myths of Abortion History, one thoroughly copy-edited and fact-checked so that it can't be challenged. A book may be accurate for the most part, as I believe this one is, yet rejected by many because it has a flock of minor errors and a few major ones. Yet the book is a gold mine of information and interpretation.
The True Common Law
Dellapenna believes that changes in abortion techniques had enormous influence on the incidence of abortion. Abortion was relatively rare before the 1800s, he says, because most methods tried before then were either ineffective or else very dangerous for the mother. Folk medicines often were useless; poisons could kill the mother as well as the child; and abortions by instrument were rare and exceptionally dangerous in the era before anesthesia, antiseptics, and antibiotics.(14)
Some medieval English cases involved women who fought with other women and injured them severely enough to cause abortion. More common, though, were cases of male assaults against women that resulted in abortion. Some assaults were connected with other crimes, such as robbery or attempted rape, while husbands or boyfriends were responsible for others. Sometimes the records suggest deliberate attempts to cause abortion, sometimes not. Many suggest great brutality. In Rex v. Cokkes (1415), a man was accused of beating a woman and causing her to give birth to twins five weeks "before her time, to the great dispair [sic] of her life, by which assault the back of one child and the legs or limbs of the other were broken so that they died immediately after their birth." And in the 1622 case of Rex v. Thomas Hallibred, Hallibred was accused of kicking his wife when she was "great with child." She was soon "delivered of a child with all the forepart of the skull beaten into the head, a most pitiful sight to be seen, dead."(15)
Possibly the first recorded English case, Agnes's Appeal in the year 1200, involved the medieval English practice of "appeal of felony." This was a form of private prosecution that usually meant trial by combat. A woman needed a champion, a family member or someone she might hire, to battle on her behalf against the person she accused. A defendant who failed to appear for combat was declared an outlaw and, in the early years, could be killed by anyone.(16) Agnes, daughter of Saxi, claimed that John of Paris had assaulted her when she was actually in labor, saying that "he came to her house and dragged her out by the feet and struck her with a certain pole in such a way that she lost her child."(17) John of Paris claimed he was entitled to a trial involving oaths rather than battle. The outcome is unknown, but Dellapenna says nobody "questioned the propriety of the charge, only the method of trial."(18)
Henry de Bracton, the first major compiler of the common law, wrote in the mid-1200s that if someone "strikes a pregnant woman or gives her a potion in order to procure an abortion, if the foetus is already formed or animated, especially if it is animated, he commits homicide."(19) Philip Rafferty says estimates of when a fetus is formed (has a human body) ranged from 45 days to three months or more. Animation (receiving a human soul) occurs at about the same time, some thought, while others placed it later.(20) In practice, I suspect, people in the Middle Ages and the early modern era simply judged whether an aborted child "looked human" to them. While many common-law cases clearly dealt with late pregnancy, many others said nothing about the child's age or size.
The distinctions between formed or unformed, animated or not animated, have bedeviled the abortion debate--and discriminated against the youngest of the unborn--at least since the time of Aristotle. In the Middle Ages, as in ancient times, people had no knowledge of genetics and did not understand embryonic and fetal development. They had no ultrasound, fetoscopy, or other "windows on the womb." St. Thomas Aquinas and other leading theologians accepted Aristotle's theory of delayed ensoulment; they believed that early abortions were gravely sinful, but not homicide.(21) And lawyers had major evidentiary problems when dealing with abortion. In an early abortion, what was visible to the naked eye might not seem human to a witness. If someone beat a woman severely, and she miscarried weeks later, how could one prove that the beating caused the miscarriage? If a child was stillborn, how could one prove that he or she was alive when the abortion occurred?
There was, though, some protection for the unborn before the time of formation--or of quickening, when that later became the norm. In the Middle Ages, and for some time after the Reformation, church courts in England prosecuted some abortion cases, including ones that involved "potions" or drugs. And for at least part of that period, doctors, midwives, and druggists took oaths that they would not do abortions or provide drugs for them.(22)
In Juliana's Appeal, around 1256, the defendant had beaten "one Juliana, daughter of Maynard, so that he killed her boy in her womb, and fled." The man was outlawed.(23) Rex v. Scharp, a 1276 case, involved wool merchant Richard Scharp, who "beat his wife, Emma, so that she gave birth to a stillborn boy." Scharp was arrested and released on bail, but died before the case could be concluded. There was a judgment, though, against the sheriff who had allowed bail on pledges from only six men because, "according to the law of the City [London] no one accused of a man's death should be released on bail except on the pledges of twelve men..."(24) Thus the stillborn boy was considered a man. And the fact that most early abortion cases involved assaults against women, Dellapenna comments, "underlies the long-held tradition that an aborting mother was seen as a victim rather than a criminal." He calls this a "common-law tradition."(25)
A Case Misunderstood for Centuries
One assault case, known at the time of Roe and heavily relied on by Cyril Means, was known only by an incomplete report--and thus had been misinterpreted by major commentators. Means also misinterpreted it, claiming it established that abortion "was not a felony at all at common law." In the 1327-28 case, Rex v. de Bourton, Richard de Bourton was accused of beating a woman late in pregnancy. She was carrying twins; the beating allegedly killed one in the womb and caused the other to die soon after birth. The brief report upon which Means relied said the judges "were unwilling to adjudge this thing a felony."
Prof. Baker found original court records of the case showing that Bourton had been accused of a felony with respect to at least one of the twins, and possibly both. One record quotes a message from King Edward III. Relying on information from his chief justice, the King wrote that Bourton had been indicted for beating a tailor's wife, Alice Carles, who was "greatly pregnant" with twins, so that "he feloniously killed one of the aforesaid children in the belly of the same Alice its mother, and broke the head and arm of the other...so that it was forthwith born and baptized by the name of Joan," and immediately died. Other court documents refer to Joan's death alone as a felony, although Prof. Baker has suggested this "may have been clerical shorthand." Bourton's case was delayed when he was arrested on another allegation, and delayed again when jurors failed to appear for the twins' case. Meanwhile, Bourton obtained a royal pardon that ended the twins' case. Dellapenna notes that pardons were then "issued to many on condition that they agree to serve in the Scottish wars." Bourton, though, "appears to have been exempted from such a condition, perhaps indicating that he was well connected at court."
Baker, Dellapenna, and Rafferty, all say the judges' unwillingness "to adjudge this thing a felony" was just a preliminary conclusion related to bail. In other words, the judges thought that if Bourton had beaten Alice Carles, he may not have acted with "malice aforethought" in the sense of intending to kill the twins. But the question of whether Bourton had, in fact, committed a felony was left open--until the royal pardon ended the case.(26)
In the 1602 case of Regina v. Webb, Margaret Webb was indicted for self-abortion. The indictment accused her of destroying the "child in her womb" by eating a poisonous substance called ratsbane. The brief record doesn't show whether the case actually went to trial, but notes that Webb was pardoned "by the general pardon."(27)
Sir Edward Coke, a colossus of English legal history, dealt with abortion in his Third Institute (1644). He said that when a woman who was "quick with childe" aborted herself, or was beaten by a man, and the child was born dead, then "this is a great misprision, and no murder." (Elsewhere he described this type of misprision as "some heynous offence under the degree of felony.") But if the child was born alive, and then died of an injury received in the abortion attempt, Coke said, the offense was murder.(28) Coke thus modified Bracton and created the "born-alive rule." It's hard to be sure what Coke meant by "quick with childe." The term usually is interpreted to mean "quickening"--that is, the time when a pregnant woman first feels fetal movements. Medical authorities today generally place this at 16-20 weeks of pregnancy.(29) But Dellapenna and Rafferty say the term "quick with child" sometimes meant simply that the child was alive, and Rafferty makes a strong case on this point.(30)
More Mischief: From Means to Blackmun
Prof. Means, who claimed to have presented English common law on abortion "thoroughly,"(31) managed to miss most of the cases. This enabled him to say the sketchy record of what he called The Abortionist's Case (1348) proved that abortion was not a crime of any type at common law. The case record stated: "One was indicted for killing a child in the womb of its mother, and the opinion was that he shall not be arrested on this indictment since no baptismal name was in the indictment, and also it is difficult to know whether he killed the child or not, etc."(32) Yet the issue of baptismal name was not even raised in most abortion cases. And if the authorities felt the evidence was insufficient for trial in The Abortionist's Case, that said absolutely nothing about evidence in other cases.
Justice Harry Blackmun, relying on the writing of Prof. Means, wrote in Roe v. Wade that it seemed "doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus." Compare that remark with Agnes's Appeal, Juliana's Appeal, Rex v. Scharp, Rex v. de Bourton, Regina v. Webb, and the following cases scattered over several centuries. Relying on Rafferty's appendices, I have noted the outcome of each case where known; but the key item is the charge or indictment, since it shows the criminal status of abortion:
Merchant v. Andevere (1249). Philip of Andevere was accused of beating a woman "wickedly and in felony" and thus causing a miscarriage. Andevere was convicted of striking her, but acquitted of causing a miscarriage.
Rex v. Haule (1321). Maude de Haule was accused of throwing another woman out of a house and thus causing the premature birth of the woman's baby girl, who died right after birth. Haule was hanged; but it's not clear whether it was for this offense, another offense, or possibly a combination.
Rex v. Portere (1400). John Portere was accused of waylaying William and Agnes Pounfret; he "so squashed" the pregnant Agnes that her child, Walter, "died soon after birth." Portere was convicted, but received a pardon.
Rex v. Wodlake (1530). According to the indictment, William Wodlake "feloniously killed and murdered" the unborn child of Katharine Alaund by giving Alaund "a certain drink in order to destroy the child." Wodlake died before the case could be tried.
Rex v. Squire (1687). The indictment said that William Squire "feloniously, wilfully [sic] and of his malice aforethought poisoned killed and murdered" the unborn child of himself and Hannah Holman by giving Holman a mixture including white mercury. She gave birth to a boy who was said to be "seriously diseased" by the poison and who died a few months after birth. Holman apparently was the only witness against Squire; he was acquitted.
Rex v. S. G. and R. T. (between 1731-1761?). The indictment accused S. G., when "quick and pregnant," of "feloniously" taking a poison that made her unborn son "sick and distempered" so that he died soon after birth. It also accused R. T., a male laborer, of being an accessory. One or both defendants apparently fled and were subjected to forfeiture of goods.
Rex v. Beare (1732). Eleanor Merriman Beare was indicted for aborting her servant, Grace Belford, "by putting an iron instrument up into her body..." Convicted on that count and a separate count of giving a man poison to kill his wife, Bear was sentenced "to stand on the pillory, the two next market-days, and to suffer close imprisonment for three years."(33)
There were also at least six cases from 1589-1811 in which women died after abortions by assault, poison, or instrument--and the abortionists were convicted and executed.(34)
As it evolved through the centuries, English common law did not treat abortion as ordinary homicide. This was partly due to confusion about formation, animation, and quickening; but the vexing problem of evidence was also a major factor. The record shows concern about the lives of both mothers and children, but clearly not enough for sufficient protection. In 1803 Parliament passed a law that made abortion a felony, and one punishable by death when done while the mother was "quick with child." An 1837 law deleted the "quick with child" distinction; it also substituted imprisonment or transportation (exile) for the death penalty. According to Dellapenna, the penalty was changed because "juries were increasingly reluctant to convict abortionists if the penalty were death." He says this reluctance wasn't unique to abortion, but "extended to all capital crimes." He emphasizes that legal changes in the 1800s were "primarily directed at the protection of fetal life" and that new scientific evidence about conception had much to do with those changes.(35)
Meanwhile, in America...
Apparently no one has done a thorough check of American colonial records for abortion cases. Some colonial court records were destroyed or lost; others, Dellapenna says, are "in unsorted (and unindexed) boxes that must be searched item by item in each county seat." There was a 1634 Virginia case about an alleged beating that caused a miscarriage, but the outcome is unknown. In 1683 a woman in Rhode Island was whipped for fornication and an abortion attempt.(36) In the early 1650s in Maryland, Captain William Mitchell was accused of trying "to destroy or Murther [murder] the Child by him begotten in the Womb" of his mistress. He had made her take some "Phisick" to kill the child, which was stillborn. Mitchell was convicted of "Murtherous intention," as well as adultery and fornication, and was fined 5,000 pounds of tobacco.
A spine-chilling Maryland case in 1663 was that of Jacob or John Lumbrozo, a surgeon who allegedly raped his maidservant and, when she became pregnant, made her take a "Phisick" that caused an abortion. He apparently disqualified her as a witness against him by marrying her.(37) In a 1740s Connecticut case, a grand jury indicted John Hallowell for having tried to destroy the health of Sarah Grosvenor and "the fruits of her womb." He had aborted Grosvenor, and she had died about one month later. Hallowell was convicted and sentenced to 29 lashes and to exposure on a gallows for two hours with a rope around his neck; but he avoided punishment by escaping the colony.(38)
American interpretation of the common law generally followed William Blackstone, whose 1765-69 volumes, Commentaries on the Laws of England, were a key authority for U.S. lawyers and judges both before and after the American Revolution. Blackstone wrote that abortion of a woman "quick with child" that resulted in the birth of a dead child "was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor." He supported Sir Edward Coke's born-alive rule.(39)
Dellapenna shows that in the United States, as in England, new scientific evidence about fetal development led to much anti-abortion legislation in the 1800s. While early laws often made a quickening distinction, later ones generally did not. Dellapenna presents much information on changes in abortion techniques and social life that led to major increases in abortion in the late 1800s and the 1900s. Taking the story through the year 2003, he deals with Roe v. Wade and other major abortion cases at length.
In breaks between long sessions of reading his book, I began to wonder why it had taken the Supreme Court so long to deal with abortion. From research in other sources, it was my impression that the Court's first abortion decision was in United States v. Vuitch, a 1971 case about District of Columbia law. Returning to Dellapenna, I was amazed to find five Supreme Court cases, long before Vuitch, that were related to abortion or mentioned it. The cases, from 1877-1949, didn't involve constitutional challenges to anti-abortion laws. But they showed that the Court took for granted the criminal nature of abortion. None of the justices suggested any constitutional problems with anti-abortion laws. In fact, two or three of the decisions upheld state action against abortionists. Dellapenna notes that Justice Blackmun "did not even bother to cite, let alone to discuss" the five cases in his Roe opinion.(40)
In a 1988 essay describing non-abortion cases, constitutional historian Leonard W. Levy remarked that the Supreme Court "rarely gets its history right" and that the Court "has flunked history." One note of hope, though: Levy described a 1931 decision that mangled history in establishing a "two sovereignties rule" about compelled testimony. After a real historian published articles on the subject, Levy wrote, the Court's "mistakes rotted in the sun like dead mackerels for all to see." A 1964 case raised the issue again, and "the Court confessed its errors, demonstrated that history belied the two sovereignties rule, and scrapped it completely."(41)
1. Joseph W. Dellapenna, Dispelling the Myths of Abortion History (Durham, N.C.: Carolina Academic Press, 2006), ix; and Who's Who in America 2006, vol. 1, 1127.
2. Ibid., xi & 840, n. 38; and Gregory J. Roden, "The Abortion Mythology of Roe v. Wade," Human Life Review 31, no. 4 (Fall 2005), 65-71.
3. Ibid., x, n. 5.
4. Ibid., 211-213; and Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), 94-99.
5. Dellapenna (n. 1), 268-269 & 227.
6. Ibid., 126 & xv.
7. Philip A. Rafferty, Roe v. Wade: The Birth of a Constitutional Right (Ann Arbor, Mich.: UMI [University Microfilms International], 1992), 459-765. My count of 105 does not include Rafferty's cases from ecclesiastical, Scottish, or Irish courts, but does include several cases from English colonies in America.
8. Dellapenna (n. 1), xii & 143-52.
9. Ibid., 99, 641, 644, 684, 764, & 848.
10. Ibid., 736 & 1048.
11. Ibid., 592; and the original source, an essay by C. Everett Koop in Dennis J. Horan and Melinda Delahoyde, ed., Infanticide and the Handicapped Newborn (Provo, Utah: Brigham Young University Press, 1982), 94-95.
12. Dellapenna (n. 1), 332, n. 113 (the reference to nineteenth-century cases); 462, n. 72 (the Wardle reference); and 465, n. 95.
13. Ibid., 678-83 & n. 392; and Roe v. Wade, 410 U.S. 113 at 142, 113, 120, & 124-25.
14. See Dellapenna (n. 1), 18-24 & 37-50, for his strenuous disagreements with Mohr, Riddle, and others on the effectiveness and/or dangers of folk medicines and poisons.
15. Case records in Rafferty (n. 7), 579-80 & 648-49.
16. Dellapenna (n. 1), 129-31.
17. Case record, quoted in ibid., 135.
18. Ibid., 136.
19. Quoted in ibid., 132.
20. Rafferty (n. 7), 136-47.
21. Germain Grisez, Abortion: the Myths, the Realities, and the Arguments (New York, Corpus Books, 1970), 153 & passim.
22. Dellapenna (n. 1), 170-84; and Rafferty (n. 7), 223 & 430-32, n. 281. See, also, R. H. Helmholz, Canon Law and the Law of England (London: Hambledon Press, 1987), 157-168. Helmholz notes: "The royal courts were courts of limited jurisdiction in medieval England. They assumed that local and ecclesiastical courts would take cognizance of a great deal of unlawful conduct." He adds that "the Church was a legitimate public authority in medieval Europe." (167).
23. Case record, quoted in Dellapenna (n. 1), 138.
24. Case record, quoted in ibid.
25. Ibid., 38 & 273. Violence against pregnant women is still a major problem. See the remarkable series of articles on this by Donna St. George in the Washington Post, Dec. 19-21, 2004 and her follow-up article of Feb. 23, 2005.
26. Cyril C. Means, Jr., "The Phoenix of Abortional Freedom," New York Law Forum 17, no. 2 (1971), 335-410, 338, & 337; Dellapenna (n. 1), 144-50; and Rafferty (n. 7), 512-530 (including quotes from Prof. Baker). Means called this The Twinslayer's Case.
27. Case record quoted in Dellapenna (n. 1), 193-94.
28. Edward Coke, The Third Part of the Institutes of the Laws of England (London: M. Flesher, 1644; reprint, New York & London: Garland Publishing, 1979), 50-51 & 139.
29. Stedman's Medical Dictionary for the Health Professions and Nursing (Philadelphia: Lippincott Williams & Wilkins, 2005, 5th ed.) 1234.
30. Dellapenna (n. 1), 139-40; and Rafferty (n. 7), 161-74.
31. Means (n. 26), 352.
32. Quoted in ibid., 339.
33. Roe v. Wade, 410 U.S. 113 at 136; and case records in Rafferty (n. 7), 569-70, 530-31, 607-09, 504-07, 628-32, 612-16, & 672-83. See, also, Dellapenna (n. 1), 141-42, 178-80, & 233-37.
34. Case records in Rafferty (n. 7), 700-13, 715-16, & 718-22.
35. Ibid., 472-74; and Dellapenna (n. 1), 243-62 & 256.
36. Ibid., 211 & 220; and Rafferty (n. 7), 499 & 103-07.
37. Case records in ibid., 483-96; and Dellapenna (n. 1), 215-20.
38. Ibid., 221-24.
39. Quoted in ibid., 238-39.
40. Ibid., 689 n. 445. The cases are: Ex parte Jackson, 96 U.S. 727 (1877); Hawker v. New York, 170 U.S. 189 (1898); United States v. Holte, 236 U.S. 140 (1915); Missouri ex rel. Hurwitz v. North, 271 U.S. 40 (1926); and Wolf v. Colorado, 338 U.S. 25 (1949). Dellapenna credits another attorney for this information; see Frank Scaturro, "Abortion and the Supreme Court," Holy Cross Journal of Law and Public Policy 3 (1998), 133-262, 145-46.
41. Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988, 320, 300, & 310.