In both England and early America, under Common Law, abortion was widely permitted prior to “quickening”—the moment the pregnant woman feels the fetus begin to move. While quickening typically takes place around 25 weeks, it varies, and the woman herself determines when it occurs, leaving her some control over the permissibility of terminating her pregnancy.[6] Early state laws restricting abortion, beginning in the 1820s, focused largely on protecting women from real or supposedly dangerous terminations; as late as 1859, in 21 out of 33 states, abortion was not a crime, was prohibited only post-quickening, or the penalties for terminating a pregnancy were lower before quickening. But in the 1860s, with the assistance for the American Medical Association, state legislatures began to ban abortions more broadly. They were driven by anti-immigrant and anti-Roman Catholic sentiment and fears that married white Protestant women might not have enough babies. Even so, by 1868, nearly half of the states either continued to permit some abortions or imposed lesser penalties for terminating a pregnancy prior to quickening. And these laws, which the five justices relied on to justify over-turning Roe, penalized the provider of the abortion, not the pregnant woman, as today’s laws threaten to do.
