Alabama Supreme Court Chief Justice Roy Moore has been in the news for his interesting take on freedom of religion under the First Amendment:

Speaking at the Pastor for Life Luncheon, which was sponsored by Pro-Life Mississippi, Chief Justice Roy Moore of the Alabama Supreme Court declared that the First Amendment only applies to Christians because “Buddha didn’t create us, Mohammed didn’t create us, it was the God of the Holy Scriptures” who created us.

“They didn’t bring the Koran over on the pilgrim ship,” he continued. “Let’s get real, let’s go back and learn our history. Let’s stop playing games.”

He said something else interesting, though, that seems to have been largely overlooked:

Chief Justice Moore later defined “life” via Blackstone’s Law — a book that American lawyers have “sadly forgotten” — as beginning when “the baby kicks.” “Today,” he said, “our courts say it’s not alive ’til the head comes out.”

He is referring to the Commentaries on the Laws of England by William Blackstone, first published in 1766. I figured I’d see what Blackstone actually said about the issue, because that’s how I roll. In Book 1 (The Rights of Persons), Chapter 1 (Of the Absolute Rights of Individuals), Blackstone writes on pages 125-26:

LIFE is the immediate gift of God, a right inherent by nature in every individual; and it 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 prefent it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.

I did a little editing to upgrade the spelling to 21st-century standards. For example, “manflaughter” is not spelled “manslaughter.” A footnote after the word “manslaughter” in the original text has the following Latin word salad:

Si aliquis mulierem praegnantem percufferit, vel ei venenum dederit, per quod fecerit abortivam ; fi puerperium jam formatum fuerit, et maxime fi fuerit animatum, facit bomicidium. Bracton. l. 3. c. 21.

This translates as:

If there is anyone who strikes a pregnant woman or gives her a poison which produces an abortion, if the foetus be already formed or animated, and especially if it be animated, he commits homicide.

I have two observations about this.

First, the rights of a fetus don’t seem to kick in, under Blackstone’s laws, until it is capable of stirring—or, as Chief Justice Moore so eloquently put it, kicking. It’s difficult to say when, exactly, during the course of a pregnancy “stirring” may occur, and it is certain that we have better information now than Blackstone had. It is also certain, I dare say, that a newly-fertilized egg cannot “stir” within the meaning of this law.

By the definition he claims to have adopted, Chief Justice Moore cannot oppose abortion rights at all stages of pregnancy. A fetus’ first movement, known as quickening, rarely occurs before 13-16 weeks. Of course, he opposes it anyway, probably because Jesus. In his concurring opinion in Ex Parte Hicks, the decision affirming the state’s “chemical endangerment of a child” statute, Moore wrote:

Under the Equal Protection Clause of the Fourteenth Amendment, states have an obligation to provide to unborn children at any stage of their development the same legal protection from injury and death they provide to persons already born. Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that “all men are created equal and are endowed by their Creator with certain unalienable rights” encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature’s God, Who created human life in His image and protected it with the commandment: “Thou shalt not kill.” Therefore, the interpretation of the word “child” in Alabama’s chemical-endangerment statute, § 26-15-3.2, Ala. Code 1975, to include all human beings from the moment of conception is fully consistent with these first principles regarding life and law.

So which is it, Chief Justice? Does life begin at conception, or at quickening? Do you even care, or are you just grandstanding?

My second observation is that, even under Blackstone’s laws, abortion is not murder. It’s not even quite homicide or manslaughter at the time Blackstone was writing. “Misdemeanor” didn’t necessarily have the same meaning then that it has now, but Blackstone clearly distinguishes it from murder, manslaughter, and the broader category of homicide. If Moore actually meant any of the things he says, this would undercut a substantial amount of anti-choice rhetoric.

Photo credit: Thomas Gainsborough [Public domain], via Wikimedia Commons.