A Separate Existence versus Existing Separately: Common-Law Criminal Indictment Forms and Casey's Viability Rule (original) (raw)
As evidenced by common-law criminal indictment forms, the common law regarded the child en ventre sa mere "as having a separate existence, a life capable of being destroyed." Although the common law considered life in the womb, for many purposes, as commencing at the moment of conception, because of the potential dire consequences to a defendant at a common-law criminal trial, the standard therein was "when the embryo gives the first physical proof of life, no matter when it first received it." In contrast to the common law, the viability rule adopted by the Supreme Court in Planned Parenthood v. Casey is based on no sound legal, historical, or physiological principle. It is as much "an exercise of raw judicial power" as the trimester criteria Justice Blackmun promulgated in Roe v. Wade.
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See infra notes 48-71 and accompanying text. 22 See infra notes 72-98 and accompanying text. 27 See, e.g., Stenberg v. Carhart, 530 U.S. 914, 930 (2000) (striking down the Nebraska partial birth abortion ban, which applied before and after viability); Casey, 505 U.S. at 893-94 (spousal notification requirement, which applied prior to viability, invalidated as a substantial obstacle to abortion); Planned Parenthood Ass'n of Kan. City v. Ashcroft, 462 U.S. 476, 481-82 (1983) (requirement that second trimester abortions be performed in a hospital unreasonably infringed on abortion rights); Colautti v. Franklin, 439 U.S. 379, 389-94 (1979) (striking down an act imposing a standard of care in the performance of an abortion where the fetus "may be viable"). 28 See infra notes 108-148 and accompanying text. 29 See infra notes 31-47 and accompanying text. 30 See infra notes 48-98 and accompanying text.
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