Massachusetts v. Bangs

Common law tradition permitted a woman to abort a fetus up until "quickening." This began to change in the nineteenth century, as this case shows.

Common law in both England and America held that abortion became a moral issue only after the mother detected fetal movement, or "quickening," which occurs during the fourth or fifth month of pregnancy. In early America, abortions were neither forbidden nor prosecuted under common law. Women used herbal abortifacients and other methods to end their pregnancies, and midwives and doctors performed intrusive procedures.

However, during the nineteenth century, abortion became a crime. Massachusetts v. Bangs illustrates how judicial opinion began to change. During the October court term of 1810, Isaiah Bangs was arrested and indicted for the assault and battery of a pregnant woman, Lucy Holman, and for forcing her to swallow a drug causing abortion. The jury found Bangs guilty of assault and battery for the abortion, but not for forcing the woman to take the drug. The jury thought she had done this voluntarily.

The solicitor general had to withdraw the assault and battery charge. Bangs now appealed that the indictment did not describe a criminal offense except those the solicitor general had withdrawn.

Bangs' lawyer, Mr. Fay, claimed:

No abortion was produced; and if there had been, there is no [proof] that the woman was quick with child; both [of] which circumstances are necessary ingredients in the offense intended to be charged in the indictment.

The solicitor general disagreed, arguing that the woman's consent to take the drug did not make administering it lawful. The court decided it could not pass sentence in the case:

The assault and battery are out of the case, and no abortion is alleged to have followed the taking of the potion; and if an abortion had been alleged and proved to have ensued, the [proof] that the woman was quick with child at the time is a necessary part of the indictment.

In other words, for an indictment to be valid, it must contain the allegations that the woman was pregnant with a "quickened baby" and that an abortion did take place.