## Facts

- Luceba Parker was indicted on three counts for using a sharp metallic instrument to cause miscarriages in three married women.
- Each count alleged the acts were done intentionally to cause a miscarriage; the women consented to the procedures.
- Count three expressly alleged the woman was “quick and pregnant”; count one did not allege quickening.
- A jury found Parker guilty on counts one and three and not guilty on count two.
- After verdict, Parker moved in arrest of judgment on count one (defective indictment) and for a new trial on count three (insufficient evidence of quickening); the trial court denied both motions.

## Issues

1. Whether, at Massachusetts common law, a consensual abortion is an indictable offense absent an allegation and proof that the woman was “quick with child.”
2. Whether an indictment must aver quickening to charge the common-law abortion offense.
3. Whether the evidence was sufficient to prove quickening where the indictment alleged the woman was “quick and pregnant.”

## Decision

- The Supreme Judicial Court held that a consensual abortion was indictable at common law only if performed after the woman was “quick with child.”
- The court ruled that quickening was a required element that had to be both alleged in the indictment and proved at trial.
- The conviction on count one could not stand because the count failed to allege that the woman was quick with child.
- The conviction on count three could not stand because the Commonwealth’s evidence did not adequately prove that the woman was quick with child at the time of the operation.

## Legal Principles

- Under Massachusetts common law, abortion was an indictable offense only when performed after “quickening.”
- “Quick with child” was understood to mean the woman had herself felt the fetus alive and moving within her.
- Because quickening was an element of the offense, it was a material fact that had to be pleaded in the indictment and proved beyond a reasonable doubt.
- The woman’s consent did not supply criminal liability for a pre-quickening abortion; quickening was the threshold for the common-law offense.

## Conclusion

The court limited common-law criminal liability for abortion to cases involving a woman who was quick with child and required both pleading and proof of quickening, rendering the challenged convictions unsustainable where quickening was not alleged or not proved.


Commonwealth v. Parker, 50 Mass. 263 (1845)