To the editors:

I did not read Florence Levinsohn’s article “A Woman’s Choice” [January 23], but if it contained as many errors as her reply to Brenda Calvin [Letters, March 6], I was spared much suffering.

Florence has a particularly odious habit of quoting “authorities” who are least to be trusted. Thus, she quoted a footnote in Roe v. Wade to prove that Wade was correct. She also quoted from the notoriously anti-Catholic organization called Catholics for a Free Choice for the Roman Catholic Church’s viewpoint! That’s like asking Phyllis Schlafly what Eleanor Smeal believes, or vice versa. It’s so patently ridiculous it doesn’t merit a rebuttal. Any Reader reader who would be fooled by such reasoning is beyond hope. But the footnote in Wade is another matter. It must not be allowed to go unchallenged. The Supreme Court’s finding that unborn children are not 14th Amendment persons was deeply influenced by its own narrow interpretation of history which, for all practical purposes, was dictated by an uncritical acceptance of two law review articles by abortion advocate Cyril Means. The Court referred to them in footnotes as “Means I” and “Means II.”

The more plausible view of common law contradicts that of the Court. It holds that even the earliest common law cases do not support the proposition that abortion was regarded as a “liberty,” “freedom” or “right” of the pregnant woman or anyone else. “Quickening” was utilized in later common law as a practical, evidentiary test to determine whether the abortion had been an assault upon a live human being in the womb and whether the act of abortion had caused the child’s death. This evidentiary test was never intended as a judgment that before quickening the child was not a live human being. At all times, the common law disapproved of abortion as malum in se and sought to protect the child in the womb from the moment his living biological existence could be proved.

Anglo-Saxon law before the Norman Conquest penalized abortion civilly with heavy fines and ecclesiastically with penances. In the 13th century, abortion of a fetus “formed [or] animated, and particularly if it be animated,” was condemned as homicide by Bracton and, later in the same century, by the anonymous legal writer Fleta.

Proabortion writers rely on two 14th-century cases to “prove” that abortion was a treasured common law “freedom” of medieval English women. It’s questionable what relevance the 14th century has to the 14th Amendment, but one thing is certain about the two cases: they do not support Means. It would take 12 pages to demonstrate that here, but those who wish to learn may find detailed proof in law professor Robert M. Byrn’s “An American Tragedy” article in the Fordham Law Review, May 197 3, p. 817 ff.

From Bracton’s time, the common law has striven to protect the unborn child against abortion from the moment science was able to establish the child’s individuated, living, biological existence. That effort reached fruition in the 1830s when law and science cooperated to complete the protection of the child at every stage of gestation.

For the Supreme Court in Wade to conclude that at common law “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today” is simply incomprehensible. A lack of criminal prosecution cannot be translated into a historic “right.” Larceny by false promise was not a crime at common law either, but who would argue that a thief “enjoyed a broader right” to commit a fraudulent larceny than he or she does today.

For the Court in Wade to cite the “lenity” of the common law as a basis for holding that unborn children do not possess a fundamental right to life and to the law’s protection at any time before birth is a perversion of Bracton, Coke, Hale, Hawkins and Blackstone. The whole history of common law cries out against the jurisprudence of Wade, which is why justice Sandra Day O’Connor could say it is on a collision course with itself.

Richard O’Connor

Executive Director

Illinois Right to Life Committee