As always, you can find the Dobbs v. Jackson decision here.

Paragraph 5 of 8

Sentence 5 of 5

This paragraph finishes with a single claim that’s both simply confirmed and more complex than it lets on:

“In the case of an abortionist, Blackstone wrote, ‘the law will imply [malice]’ for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person:

‘[I]f one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.’ Id., at 200–201 (emphasis added; footnote omitted).29

Here’s the tl;dr version: the claim is true. Blackstone wrote what Dobbs claims Blackstone wrote. What it doesn’t do (and Dobbs doesn’t make this claim here, but it’s a claim that animates the Dobbs case) is by what argument abortion itself is a felony.

Here’s the version in which I indulge in some thinking:

The embedded fragment and the block quote both come from the same long paragraph in Blackstone (found here). The fragment is in the first sentence of the paragraph and the block quote closer to the end. I feel like it is to our benefit that I present the whole paragraph for us to look at:

“Also in many cases where no malice is expressed, the law will imply it : as where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. And if a man kills another suddenly, without any, or without a considerable provocation, the law implies malice, for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another. But if the person so provoked had unfortunately killed the other, by beating him in such a manner as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not murder. In like manner if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or append a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the the killer shall be guilty of murder. And if one intends to do another felony, and undesignedly kills a man, this is also murder. Thus, if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it. It were endless to go through all the cases of homicide, which have been adjudged either expressly, or impliedly, malicious : these therefore may suffice as a specimen ; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law ; excused on the account of accident or self-preservation ; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury : the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence.

That’s a lot. Here’s a short summary. Blackstone gives two examples to illustrate how malice is implied. Then he gives a pair of examples to illustrate how circumstances can determine how malice is implied. Then he gets to our relevant passage, which is structured in this way:

And if one intends to do another felony, and undesignedly kills a man, this is also murder.

• Thus, if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other.
• The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.
  • So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.

The language seems inexact here, but Blackstone is either saying that abortion and murder are both felonies or that “felony” and “murder” are the same thing, so abortion is murder. Given that Blackstone expressly wrote earlier that abortion is not murder, I favor the former interpretation over the latter. This supports the Dobbs claim that abortion has been criminalized in the past, so that would render the Dobbs quote true in that sense. It still doesn’t get us any closer to understanding why the fetus is considered the equivalent to “A” in either of these examples. It’s just assumed.

The Dobbs authors go to great pains to distance themselves from any attempt to establish the personhood of the fetus, but this series of examples illustrates how that’s difficult, if not impossible to avoid. They may not make the case in Dobbs, but they do assume the statuses assigned by the various historical figures they cite, and that might be a problem. It seems to me that it is, anyway.

The footnote cites other cases in which an abortion procedure that killed the pregnant woman were judged to be murder:

“Other treatises restated the same rule. See 1 W. Russell & C. Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a person gave medicine to a woman to procure an abortion, and where a person put skewers into the woman for the same purpose, by which in both cases the women were killed, these acts were clearly held to be murder” (footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar).

It’s a reiteration of the point already made. More history, no further argument.