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For a more detailed treatment, see Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (1968) 14 N.Y.L.F. 411 [hereinafter cited as Means]; Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L., C. & P.S. 84; Quay, Justifiable Abortion -- Medical and Legal Foundations II (1961) 49 Geo.L.J. 395. By the year 1850 an infant could not be the subject of homicide at common law unless it had been born alive.
Earlier common law, possibly reflecting doctrines of medieval canon law, may have been otherwise. Thus in the 13th century Bracton wrote: 'If there be anyone who strikes a pregnant woman or gives her a poison whereby he causes an abortion, if the foetus be already formed or animated, and especially if it be animated, he commits homicide.' (Bracton, The Laws and Customs of England, III, ii, 4, quoted and translated in Means, at p. 419.) Sir James Stephen characterizes this passage, however, as an instance 'in which Bracton carries the law as to homicide to a length which was not adopted in later times.' (3 Stephen, A History of the Criminal Law of ...
