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In pregnancy terms, quickening is the moment in pregnancy when the pregnant woman starts to feel the fetus's movement in the uterus.^[1] It was believed that the quickening marked the moment that a soul entered the fetus, termed ensoulment.^[2]

Medical facts

The first natural sensation of quickening may feel like a light tapping or fluttering. These sensations eventually become stronger and more regular as the pregnancy progresses. Sometimes, the first movements are mis-attributed to gas or hunger pangs.^[3]

A woman's uterine muscles, rather than her abdominal muscles, are first to sense fetal motion. Therefore, her body weight usually does not have a substantial effect on when movements are initially perceived. Women who have previously given birth have more relaxed uterine muscles which are more sensitive to fetal motion during subsequent pregnancies. For them fetal motion can sometimes be felt as early as 14 weeks.^[4]

Quickening indicates the start of fetal movements, usually felt 14–26 weeks after conception, or between the fourth and sixth month.^[5]^[6] A woman pregnant for the first time (i.e., a primigravida woman) typically feels fetal movements at about 20–21 weeks, whereas a woman who has given birth at least once will typically feel movements around 18 weeks.^[7]

Common law

The study of the early history of common law in the context of the abortion debate presents some challenges. Over the years dedicated scholars have uncovered case law that supports the argument that abortion was considered murder, in at least some cases, even before quickening. However, due to the greater impact of local customs and contested jurisdictions in earlier stages of legal history, the customary origins of the common law are murky, and scholars can point to other cases where abortion was not considered such a serious matter.^[8]

The first legal writer to describe abortion of a quick fetus as homicide was Henry de Bracton in the early 13th century:^[9]^[10]

If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide.

The fetal right to life post-quickening was recognized by the 18th century British legal scholar William Blackstone as a legally protected right "inherent by nature in every individual". Blackstone wrote that life became a legally protected right "as soon as an infant is able to stir in the mother's womb".^[11] Blackstone explained the subject of quickening in the eighteenth century, relative to feticide and abortion:

Life... begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.^[12]

Blackstone's Commentaries and other widely consulted common law authorities drew a dividing line at quickening analogous to the viability line the Supreme Court attempted to draw in Roe v. Wade.^[13]

In England in the seventeenth through nineteenth centuries, a woman convicted of a capital crime could claim a delay in her execution if she were pregnant; a woman who did so was said to "plead the belly". The law held that no women could be granted a second reprieve from the original sentence on the ground of subsequent pregnancy, even if the fetus had quickened.^[14] In Ireland on 16 March 1831 Baron Pennefather in Limerick stated that pregnancy was not alone sufficient for a delay but there had to be quickening.^[15]

Notes

^ Quickening in Farlex dictionary, in turn citing The American Heritage Dictionary of the English Language, Fourth Edition. copyright 2000
^ Bakke, Odd Magne. When Children Became People: The Birth of Childhood in Early Christianity. Fortress Press. ISBN 978-1-4514-1530-8.
^ Harms, Roger. Mayo Clinic Guide to a Healthy Pregnancy, page 480 (HarperCollins 2004). Retrieved 2007-02-15.
^ Van Der Ziel, Cornelia & Tourville, Jacqueline. Big, Beautiful & Pregnant: Expert Advice and Comforting Wisdom for the Expecting Plus-size Woman (Marlowe 2006). Retrieved 2007-02-15.
^ Dine, Ranana (August 8, 2013). "Scarlet Letters: Getting the History of Abortion and Contraception Right". Center for American Progress. Retrieved July 26, 2022.
^ Reagan, Leslie J. (June 2, 2022). "What Alito Gets Wrong About the History of Abortion in America". Politico. Retrieved July 26, 2022.
^ Levene, Malcolm et al. Essentials of Neonatal Medicine (Blackwell 2000), page 8. Retrieved 2007-02-15.
^ Spivack, Carla (2007). "To "Bring Down the Flowers": The Cultural Context of Abortion Law in Early Modern England". William & Mary Journal of Race, Gender and Social Justice. 14. Dellapenna's book is a recent example of analysis which distorts the evidence to press an absolutist position about the legal history, ignoring context and culture to do so. Bypassing the importance of intellectual and social history to an understanding of the law, Dellapenna himself falsifies the record...As the debates over this issue have shown, both sides can muster evidence:there is case law—albeit very little—that seems to classify abortion as murder without reference to stages of fetal development, and there are cases and other material which seem to regard abortion as less serious, some appearing to disregard it altogether. Part of the reason for this very real confusion is that medieval and early modern England did not have a single unified legal system, though one was evolving: law was still partly related to local custom and could vary from place to place; multiple court systems were in play; ecclesiastical law and common law had contested and at times overlapping jurisdiction. at the level of enforcement—often this is all the records show us—officers of the law were "often partisan or highly erratic in their performance". These factors make it difficult to establish the conclusive answers each side in the modern abortion debate seeks.
^ Henry de Bracton (1977) [c. 1250]. "The crime of homicide and the divisions into which it falls". In Woodbine, George E. (ed.). On the Laws and Customs of England. Translated by Thorne, Samuel Edmund. The Belknap Press of Harvard University Press. ISBN 978-0-674-08038-6. OCLC 1872.
^ See also Carla Spivack, To "Bring Down the Flowers": The Cultural Context of Abortion Law in Early Modern England 14 Wm. & Mary J. Women & L. 107 (2007), 133.
^ Blackstone's Commentaries: With Notes of Reference, To the Constitution and Laws, Of the Federal Government of The United States; And of the Commonwealth of Virginia, In Five Volumes. Book I, Vol. II, Of the Rights of Persons, 130.
^ Blackstone, William (1979) [1765]. "Amendment IX, Document 1". Commentaries on the Laws of England. Vol. 5. Chicago: University of Chicago Press. p. 388.
^ Bartee, Wayne C.; Bartee, Alice Fleetwood (1993). Litigating Morality: American Legal thought and its English Roots. Bloomsbury. p. 2. Closely tied to the question of English legal scholars' positions on abortion was the issue of a dividing line or point to separate legal from illegal abortions. This point was called "quickening" by the early authorities. Questions about this line were also raised in oral argument in Webster: Justice Anthony Kennedy asked counsel for the Reproductive Health Clinic if states had the right to 'prohibit an abortion after the fetus is eight months old.' Mr. Susman's response went immediately to the old issue of the dividing line between legal and illegal abortions. "I am willing to recognize the compelling interest granted in Roe of the state in potential fetal life after the point of viability," Susman responded. He then linked the ancient concept of quickening as the dividing line to that of the modern viability standard.
^ Defoe, Daniel (1722). Moll Flanders. Archived from the original on 2006-10-20.
^ Limerick Evening Post and Clare Sentinel, 18 March 1831.