# Can someone explain the history of Roe v. Wade? **URL:** \ **Category:** Factual Questions\ **Created:** [November 8, 2004, 10:08am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615 "2004-11-08T10:08:24Z")\ **Posts on this page:** 9\ **Page:** 2
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [December 27, 2021, 9:21pm UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/21 "2021-12-27T21:21:34Z")
The legal ramifications of a fetus as a person become interesting and convoluted (which is why it is not the situation.) If a fetus is a person under the law then suppose Fred dies, and in his will leaves his estate to be split evenly between his wife and his children (he has 2 already, by a previous wife). But his wife is also pregnant with twins. But then they are stillborn. Does the wife (as immediate next of kin of the twins) get 3/5 of the estate? Or should she and the two living children get 1/3 each? Exodus 21:22 deals with a similar legal matter - if two men strife and hit a woman causing her to miscarry, is it murder (life for life?) No, it’s a property crime to cause a fetus to miscarry, pay a fine, because miscarriages or still births happen all the time for assorted reasons, and it cannot be asserted definitely the fighters were the main cause of the miscarriage. Whereas if you hit a living breathing stand-alone human being and they die, it’s usually pretty easy to attribute cause and effect. The point is - a child born alive and taking a breath is a simple and easy line to draw in the sand. The law hates ambiguous situations where it’s hard to tell if the situation is one or the other, so the fewer such situations, the better. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [December 27, 2021, 9:54pm UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/22 "2021-12-27T21:54:36Z")
Do you have any cite for this “draw breath” standard as being part of the common law prior to _Roe v. Wade_? Nothing in _Roe_ cites such a standard, either in concurrence or dissent. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 27, 2021, 11:41pm UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/23 "2021-12-27T23:41:26Z")
I realize this is a zombie, but this comment perplexes me. > [@prisoner6655321](#): > > I already found it before but couldn’t make hide nor hair of it, since I’m just a normal guy who likes language that is clear and easy to understand. The Roe v Wade opinion starts out with sort of a dry discussion of jurisdiction and standing issues, but when you get to the part about the issue of abortion, it’s perfectly clear what Roe is based on. It discusses the history and progression of the law and how it arrived at the decision it did. That’s not to say that people don’t disagree with Roe, but it’s not some especially dense legal opinion. If interested, people should read it. Just skip the beginning legalese (and ignore the copious case citations). Start where it begins with: > [@](#): > > 33 > The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. > **[Jane ROE, et al., Appellants, v. Henry WADE.](https://www.law.cornell.edu/supremecourt/text/410/113)** ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 28, 2021, 12:21am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/24 "2021-12-28T00:21:23Z")
> [@flurb](#): > > Do you have any cite for this “draw breath” standard as being part of the common law prior to _Roe v. Wade_ ? Nothing in _Roe_ cites such a standard, either in concurrence or dissent. The common law is not restricted to the United States. 😉 @md-2000 is referrring to the English common law test, which was adopted by other Commonwealth countries, such as Canada. By that common law test, to be considered a human being, a fetus had to be born alive and separated from its mother. The “born alive” standard is met by the independent drawing of breath. I’m on holiday today (Boxing Day observed), but next time I’m in my office I’ll see if I can dig up a cite for you. Now, how that test was incorporated into the common law of the American states, I don’t know. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [December 28, 2021, 12:56am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/25 "2021-12-28T00:56:10Z")
Another answer to the OP question is that Roe v. Wade built upon Griswold v. Connecticut, the decision that gave married people a constitutionally protected right to buy contraceptives. That was a precedent for granting reproductive freedom with privacy as part of the justification. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [December 28, 2021, 12:59am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/26 "2021-12-28T00:59:41Z")
> [@Zebra](#): > > I will check it out. I’ve tried reading one history but it was pretty dry. Also check out: The Family Roe: An American Story by Joshua Prager ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 30, 2021, 12:37am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/27 "2021-12-30T00:37:08Z")
> [@PhillyGuy](#): > > Another answer to the OP question is that Roe v. Wade built upon Griswold v. Connecticut, the decision that gave married people a constitutionally protected right to buy contraceptives. That was a precedent for granting reproductive freedom with privacy as part of the justification. Griswold was one among many cases that addressed the notion of a constitutional right of privacy. > [@The Roe decision](#): > > The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, [141 U.S. 250](https://www.law.cornell.edu/supremecourt/text/141/250), 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the [First Amendment](https://www.law.cornell.edu/constitution/first_amendment), Stanley v. Georgia, [394 U.S. 557](https://www.law.cornell.edu/supremecourt/text/394/557), 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and [Fifth Amendment](https://www.law.cornell.edu/constitution/fifth_amendment)s, Terry v. Ohio, [392 U.S. 1](https://www.law.cornell.edu/supremecourt/text/392/1), 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, [389 U.S. 347](https://www.law.cornell.edu/supremecourt/text/389/347), 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, [116 U.S. 616](https://www.law.cornell.edu/supremecourt/text/116/616), 6S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, [277 U.S. 438](https://www.law.cornell.edu/supremecourt/text/277/438), 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the [Ninth Amendment](https://www.law.cornell.edu/constitution/ninth_amendment), id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the [Fourteenth Amendment](https://www.law.cornell.edu/constitution/amendmentxiv), see Meyer v. Nebraska, [262 U.S. 390](https://www.law.cornell.edu/supremecourt/text/262/390), 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or 'implicit in the concept of ordered liberty,’ Palko v. Connecticut, [302 U.S. 319](https://www.law.cornell.edu/supremecourt/text/302/319), 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, [388 U.S. 1](https://www.law.cornell.edu/supremecourt/text/388/1), 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, [316 U.S. 535](https://www.law.cornell.edu/supremecourt/text/316/535), 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, [321 U.S. 158](https://www.law.cornell.edu/supremecourt/text/321/158), 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, [268 U.S. 510](https://www.law.cornell.edu/supremecourt/text/268/510), 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 30, 2021, 12:46am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/28 "2021-12-30T00:46:14Z")
> [@Northern\_Piper](#): > > to the English common law test, which was adopted by other Commonwealth countries, such as Canada. By that common law test, to be considered a human being, a fetus had to be born alive and separated from its mother. The “born alive” standard is met by the independent drawing of breath. I claim no knowledge of the common law other than to quote Roe yet again. > [@](#): > > The common law. It is undisputed that at common law, abortion performed before ‘quickening’-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy[20](https://www.law.cornell.edu/supremecourt/text/410/113#fn20)-was not an indictable offense.[21](https://www.law.cornell.edu/supremecourt/text/410/113#fn21) The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.[22](https://www.law.cornell.edu/supremecourt/text/410/113#fn22) This was ‘mediate animation.’ Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 1, 2022, 9:55am UTC](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615/29 "2022-01-01T09:55:03Z")
> [@PhillyGuy](#): > > Another answer to the OP question is that Roe v. Wade built upon Griswold v. Connecticut, the decision that gave married people a constitutionally protected right to buy contraceptives. That was a precedent for granting reproductive freedom with privacy as part of the justification. I agree with this as a GQ answer. Also with @Moriarty. The Court had recognized privacy in marriage, child rearing, procreation and the like and believed that abortion was the same or a modest extension of those cases. Others very much disagree. [Previous page](https://boards.straightdope.com/t/can-someone-explain-the-history-of-roe-v-wade/273615.md?page=1)