History of Abortion Law Debate
Encyclopedia
In our earliest written sources, abortion is not considered as a general category of crime. Rather, specific kinds of abortion are prohibited, for various social and political reasons. In our earliest texts, it can be difficult to discern to what extent a particular religious injunction held force as secular law. in later texts, the rational for abortion laws may be sought in a wide variety of fields including philosophy, religion, and jurisprudence. These rationales were not always included in the wording of the actual laws.
s, and contraceptives, which had varying degrees of effectiveness. Some of these are mentioned in the earliest literature of the ancient world, however citations for abortion related matters are scarce in the earliest written texts.
were often entailed in discussions of "racial purity" or eugenics
, population control, property rights of the patriarch, and of the regulation of women engaged in illicit sex. Cicero
explains:
Families wealthy or poor may have had different reasons for practicing offspring limitation. The wealthy may have been concerned about breaking a large inheritance into numerous smaller portions for many heirs. A poor family may have been unable to feed a large number of children. At times, extreme poverty may have driven some to cannibalism, as in II Kings 6:29 which saw child cannibalism as a tragedy but neither sin nor crime.
Aristotle
, held concerns that would today fall under the rubric eugenics
. In his view, abortion and infanticide were permissible when they accorded with the welfare of the state. He advocated mandatory exposure of children born with deformities, and deemed abortion advisable when a couple had exceeded their quota of children, or when a couple had conceived passed their optimal childbearing age, as he believed that the eudaimonia
of the individual was entwined with the welfare of the state. Plato held views similar to Aristotle's. In the Jewish and Christian Scripture, Hosea 13:16 advocates killing pregnant women and ripping up their unborn as a valid strategy in war.
In Hindu scriptures, the matter is interpreted as reflecting a concern for the preservation of the male seed of the three "pure" castes, with the meaning of one word associated with abortion, bhrūṇahan, being “the killer of a learned Brahmin”. Offspring limitation facilitated the financial stability of the influential families, preserving social order; and the males of these castes were required to perform important religious rituals. While caste mixing was severely condemned, abortion was not recommended, and the texts elaborated a complex set of rules for the social integration of people born of such unions.
Of some concern in all these discussions is the ability of the woman to conceal her pregnancy in the early stages, and to terminate an unwanted pregnancy through the use of herbs or, more rarely, crude surgery. Since menses may be interrupted by medical conditions other than pregnancy, a woman taking an emmenagogue
could not necessarily be accused of attempting abortion, even if she did lose a fetus with the bringing on of stopped menses. Therefore, social control of childbirth, essential to the preservation of the social order, could only effectively be exercised after quickening
.
Note:
It was not until the Axial Age
that religious text began to include explorations of more philosophic concepts, which often involved considerations of the nature of man, which in turn involved considerations of the nature of the soul. There were three main views that had various impacts on the question of abortion: a belief that this material world is accompanied by an incorporeal one, a belief that matter is an illusion and everything is incorporeal, and a belief that everything, including the soul
is material in nature. The ancient Egyptians developed a complicated five part version of the nature of man, including both a soul (similar to a modern ghost) and a spirit (similar to the Buddhist stream of consciousness). The later Vedic literature, the Atharvaveda
and Upanishads, held a doctrine of a World soul and an eternally reincarnating soul that enters the new physical body at conception. At times, these two kinds of soul were believed to be of the same substance. Many Greeks believed in panpsychism
(that all things have an individual soul), while others believed that individuals emanate from a World soul, made of a different substance; and it is possible that Plato believed in elements of both.
Believers in transmigration of souls had varying opinions. Buddhism rejected the Hindu notion of an eternal soul atman
, positing an ephemeral "stream of consciousness" that enters the physical body at conception. Judaism and Islam also taught various forms of pre-existence of a soul created by God, but believed in only one earthly incarnation, and that the soul enters the body at conception. Plato believed that the pre-existent soul enters the body at first breath.
The Stoics considered the fetus to be a part of the woman's body and held that the soul
(the pneuma
) enters the body when the newborn takes its first breath. Even then, the Stoics believed the child is neither rational being nor moral agent until 14 years of age. Aristotle proposed a theory of progressive ensoulment, stating that the fetus acquired first a vegetative soul, then an animal soul, then a rational soul, with the male providing the "rational soul" that animated the fetus at 40 days after conception. Opinion in the Islamic world differed as to whether the soul was "blown into" the fetus at 40 days or 120. Anglo-Saxon medical texts held that a fetus was "a man without a soul" until after the third month.
Generally, the question of the morality of abortion involved the question of the nature of the "animating principle", usually called the "rational soul", when the animating principle entered the body, whether it was an integral part of the bodily form and substance, whether it was pre-existent and subject to Reincarnation
or Pre-existence
, and whether a reincarnating soul might suffer as a result of the abortion. On these bases, some societies allowed infanticide
of the newborn prior to its first breath (Stoic) or first nourishment (Germanic tribes), while some had differing laws for abortion depending on whether quickening
had occurred.
In Roe v. Wade
, the US Supreme Court questioned the validity of this source, noting that "the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians."
The clause referencing abortion has been questioned on a number of grounds. Authorship of this and other sections has been questioned as the language reflects Pythagorean influence; it has been suggested that he is specify that he would not give a pessary to a woman because that would abrogate the husband's prerogative in the matter; and is at odds with Hippocrates' own conduct when asked by a friend to provide an abortion for her slave girl whom the kinswoman had been using as a prostitute. He describes the kind of abortion he prescribed, and records no indication of his opinion of the slave's profession. Elsewhere, he gives instruction on how to obtain an abortion through bloodletting.
The value of a human being varied according to rank and social circumstances. (Thus, even an upper class male might be considered a mere boy until well into his later years; with the term "boy" having a meaning similar to slave.) A slave woman might be punished by her master if he disapproved of her abortion, regardless of who the father was, because she destroyed his property. The monetary value of human beings is reflected in the value of fines paid for personal crimes, which varied in accordance both with the rank of the offender and of the victim. In Lev. 27:6, an infant of one month or less has no monetary value.
While the earliest Vedas have no mention of abortion, later scripture condemns it as one of the vilest of crimes, resulting in loss of caste and thus loss of liberation from samsara. Despite such harsh condemnation, the penalty for abortion is the withholding of water libations from the woman; while the abortionist may lose caste and, with it, opportunity for liberation from samsara.
In Buddhism, the oldest Theraveda texts condemn abortion but do not prohibit or prescribe penance. In later texts, a Buddhist monk who provides abortion is "defeated" - excluded from the religious community - if the fetus dies. If the mother dies but not the fetus, this is only a grave sin, because he had not intended to kill her.
Generally, most texts allow abortion to save the woman's life.
One of the earliest Churchmen, Tertullian
, believed that the soul of the fetus is generated by the parents along with the generation of the new body. This viewpoint, later known as the heresy of Traducianism
, was deemed unsatisfactory by St. Augustine
, as it did not account for original sin. Basing himself on the Septuagint version of Exodus 21:22, he deemed abortion, while deplorable, to be less than murder. He also affirmed the Aristotelian view of delayed hominization. St. Fulgentius
opposed abortion even for the purpose of saving the woman's life, saying: "But let the child be brought to term and baptized and saved from perdition."
The Venerable Bede, in the Penitential ascribed to him by Albers c. 725, upheld the 40 day distinction, prescribing a one year penance for abortion before the 40th day, and added that it makes a difference whether the woman was simply in financial desperation, or had conceived out of "harlotry". After 40 days the penance was 71/2 years, the same as for homicide.
In the 12th century, in the Decretum Gratiani
,
A century later, St. Thomas Aquinas upheld delayed hominization: "seed and what is not seed is determined by sensation and movement."
In 1588, Pope Sixtus V
adopted a papal bull adopting the position of St. Thomas Aquinas that contraception
and abortion were crimes against nature
and sin
s against marriage
. This verdict was relaxed three years later by Pope Gregory XIV
, who pronounced that abortion before "hominization
" should not be subject to ecclesiastical penalties that were any stricter than civil penalties (Codicis iuris fontes, ed. P. Gasparri, vol. 1 (Rome, 1927), pp. 330–331).
, ca. 1760 BC, contains the earliest known laws about miscarriage caused by assault, and seems intended to protect the rights of the father, Articles 209-214 required monetary compensation in accordance with the social rank of the prospective mother, and a separate fine if the woman dies. The Zend Avesta imposes a sentence of Peshôtanu (200 lashes) on a woman who, out of fear of discovery, "brings on menses" when conception occurs out of wedlock, with no mention of a penalty for the male. The Code of the Assura, c. 1075 BCE has penalties for several different types of abortion crimes: if a woman aborts against her husband's wishes, if a man causes an abortion in any woman at the first stage of pregnancy; if a man causes an abortion in a harlot. In the first case, the woman is to be crucified; in the second, the man is fined two talents; and in the third, the man is to make restitution for a life.
While there is no comprehensive review of property rights law in the Old Celtic Law, we do know that a husband could divorce his wife in the case of abortion.
While there were no laws against abortion in Ancient Rome, the Twelve Tables
did allow for infanticide through exposure in cases of unwanted female newborns, and mandated that children born deformed also be exposed. In 211 AD, at the intersection of the reigns of Septimius Severus
and Caracalla
, abortions which violated the father's rights or the mother's duties were punished by temporary exile.
The Visigothic Code
had a system of punishments similar to that of the Zend Avesta, with 200 lashes for a woman causing her own abortion, or for a male slave performing an abortion on a freeborn woman, but with various fines in all other circumstances.
In 9th century England, King Alfred's laws laid down the wergeld to be paid in compensation for various murders: If a man slay a woman with child, he shall pay full wergeld for the woman, and half wergeld for the dead fetus, in compensation for the husband's material loss.
In the Middle Ages, German women were allowed to expose their newborns.
", accruing a penalty of 3 years' penance, or as a "quasi homicide" after quickening. It is believed that abortion cases were usually heard in ecclesiastical courts, which dealt with matters of morality, rather than in secular courts, which dealt with breaches of the King's peace. The punishment for the capital crime of homicide was therefore not applied. Drawing on William Staunford
, Edward Coke
first formulated the born alive rule
in Institutes of the Lawes of England
, drawing on the established definition of Murder in English law
that the victim be "a reasonable creature in rerum natura. This formulation appeared in William Blackstone
's commentaries and in Bouvier's Law Dictionary
. Henry Bracton, considered abortion to be homicide.
, was used to justify the stricter abortion laws that were codified during the 19th century. This ignores other, perhaps more salient, aspects of the history of abortion law. The historical debate about vivification, animation, and delayed hominization were debates about when the fetus could be considered a "reasonable creature" - a human being - not simply when it had physical life; and this is what quickening
was said to signify.
The process of criminalizing abortion, however, can be placed in a broader context whereby professional associations began to employ licencing procedures as a means of driving "irregulars" out of practice in fields as divers as medicine and architecture. Toward the end of the 18th century, medical associations began to co-operate "in vigorous measures for the suppression of empiricism
, and the encouragement of regular practitioners" - that is, for the suppression of medicine based on practice, such as herbalism and midwifery, and the promotion of medical science based on theory - and also began to assist in the regulation, restriction, and commercialization of reproduction products such as pessaries, condoms and abortifacients. Science based medicine at the time was based on humorism
, a theory that had not changed since Galen's day, and relied on dangerous practices such as bloodletting, purging, and the extensive use of mercury
, a toxin. Public backlash forced a temporary retreat, with licencing regulations being repealed during the next few decades.
In 1857, a more successful campaign was launched. The newly formed AMA
Despite a flurry of well publicized inquests beginning with the turn of the 19th century, prosecutions for abortions usually proceeded only in response to a woman's death. In addition to the abortionist, unmarried men whose lovers had died were increasingly prosecuted as well, the reasoning being that only his refusal to marry could have driven a woman to abortion.
Ancient Sources
Tribal people in more modern times have been had access to many herbal abortifacients, emmenagogueEmmenagogue
Emmenagogues are herbs which stimulate blood flow in the pelvic area and uterus; some stimulate menstruation. Women have used plants such as mugwort, parsley and ginger to prevent or terminate early pregnancy...
s, and contraceptives, which had varying degrees of effectiveness. Some of these are mentioned in the earliest literature of the ancient world, however citations for abortion related matters are scarce in the earliest written texts.
Social Considerations
In the ancient world, discussions of offspring limitation, whether through contraception, abortion, or infanticideInfanticide
Infanticide or infant homicide is the killing of a human infant. Neonaticide, a killing within 24 hours of a baby's birth, is most commonly done by the mother.In many past societies, certain forms of infanticide were considered permissible...
were often entailed in discussions of "racial purity" or eugenics
Eugenics
Eugenics is the "applied science or the bio-social movement which advocates the use of practices aimed at improving the genetic composition of a population", usually referring to human populations. The origins of the concept of eugenics began with certain interpretations of Mendelian inheritance,...
, population control, property rights of the patriarch, and of the regulation of women engaged in illicit sex. Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
explains:
“I remember a case which occurred when I was in Asia: how a certain woman of Miletus, who had accepted a bribe from the alternative heirs and procured her own abortion by drugs, was condemned to death: and rightly, for she had cheated the father of his hopes, his name of continuity, his family of its support, his house of an heir, and the Republic of a citizen-to-be.”
Families wealthy or poor may have had different reasons for practicing offspring limitation. The wealthy may have been concerned about breaking a large inheritance into numerous smaller portions for many heirs. A poor family may have been unable to feed a large number of children. At times, extreme poverty may have driven some to cannibalism, as in II Kings 6:29 which saw child cannibalism as a tragedy but neither sin nor crime.
Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
, held concerns that would today fall under the rubric eugenics
Eugenics
Eugenics is the "applied science or the bio-social movement which advocates the use of practices aimed at improving the genetic composition of a population", usually referring to human populations. The origins of the concept of eugenics began with certain interpretations of Mendelian inheritance,...
. In his view, abortion and infanticide were permissible when they accorded with the welfare of the state. He advocated mandatory exposure of children born with deformities, and deemed abortion advisable when a couple had exceeded their quota of children, or when a couple had conceived passed their optimal childbearing age, as he believed that the eudaimonia
Eudaimonia
Eudaimonia or eudaemonia , sometimes Anglicized as eudemonia , is a Greek word commonly translated as happiness or welfare; however, "human flourishing" has been proposed as a more accurate translation...
of the individual was entwined with the welfare of the state. Plato held views similar to Aristotle's. In the Jewish and Christian Scripture, Hosea 13:16 advocates killing pregnant women and ripping up their unborn as a valid strategy in war.
In Hindu scriptures, the matter is interpreted as reflecting a concern for the preservation of the male seed of the three "pure" castes, with the meaning of one word associated with abortion, bhrūṇahan, being “the killer of a learned Brahmin”. Offspring limitation facilitated the financial stability of the influential families, preserving social order; and the males of these castes were required to perform important religious rituals. While caste mixing was severely condemned, abortion was not recommended, and the texts elaborated a complex set of rules for the social integration of people born of such unions.
Of some concern in all these discussions is the ability of the woman to conceal her pregnancy in the early stages, and to terminate an unwanted pregnancy through the use of herbs or, more rarely, crude surgery. Since menses may be interrupted by medical conditions other than pregnancy, a woman taking an emmenagogue
Emmenagogue
Emmenagogues are herbs which stimulate blood flow in the pelvic area and uterus; some stimulate menstruation. Women have used plants such as mugwort, parsley and ginger to prevent or terminate early pregnancy...
could not necessarily be accused of attempting abortion, even if she did lose a fetus with the bringing on of stopped menses. Therefore, social control of childbirth, essential to the preservation of the social order, could only effectively be exercised after quickening
Quickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
.
Note:
While the issue of child sacrifice may be included in such discussions, as part of a larger discussion of social attitudes toward children, it is a matter separate from abortion. In general, anything sacrificed to the gods is sacrificed precisely because it is valued by society and is therefore deemed an appropriate gift to the gods. In the case of contraception, abortion and exposure of newborns, the prospective child is not valued and is therefore disposable.
Religious and Philosophic Considerations
The earliest texts are concerned primarily with duties, obligations and rights of individuals to their families, the state, and to those in different social strata, giving religious imprimatur to the preservation of social order. The text was not available to the illiterate, and in ancient India, the sudra and outcasts were subject to corporal punishment for even listening to them.It was not until the Axial Age
Axial Age
German philosopher Karl Jaspers coined the term the axial age or axial period to describe the period from 800 to 200 BC, during which, according to Jaspers, similar revolutionary thinking appeared in India, China and the Occident...
that religious text began to include explorations of more philosophic concepts, which often involved considerations of the nature of man, which in turn involved considerations of the nature of the soul. There were three main views that had various impacts on the question of abortion: a belief that this material world is accompanied by an incorporeal one, a belief that matter is an illusion and everything is incorporeal, and a belief that everything, including the soul
Soul
A soul in certain spiritual, philosophical, and psychological traditions is the incorporeal essence of a person or living thing or object. Many philosophical and spiritual systems teach that humans have souls, and others teach that all living things and even inanimate objects have souls. The...
is material in nature. The ancient Egyptians developed a complicated five part version of the nature of man, including both a soul (similar to a modern ghost) and a spirit (similar to the Buddhist stream of consciousness). The later Vedic literature, the Atharvaveda
Atharvaveda
The Atharvaveda is a sacred text of Hinduism and one of the four Vedas, often called the "fourth Veda"....
and Upanishads, held a doctrine of a World soul and an eternally reincarnating soul that enters the new physical body at conception. At times, these two kinds of soul were believed to be of the same substance. Many Greeks believed in panpsychism
Panpsychism
In philosophy, panpsychism is the view that all matter has a mental aspect, or, alternatively, all objects have a unified center of experience or point of view...
(that all things have an individual soul), while others believed that individuals emanate from a World soul, made of a different substance; and it is possible that Plato believed in elements of both.
Believers in transmigration of souls had varying opinions. Buddhism rejected the Hindu notion of an eternal soul atman
Ātman (Hinduism)
Ātman is a Sanskrit word that means 'self'. In Hindu philosophy, especially in the Vedanta school of Hinduism it refers to one's true self beyond identification with phenomena...
, positing an ephemeral "stream of consciousness" that enters the physical body at conception. Judaism and Islam also taught various forms of pre-existence of a soul created by God, but believed in only one earthly incarnation, and that the soul enters the body at conception. Plato believed that the pre-existent soul enters the body at first breath.
The Stoics considered the fetus to be a part of the woman's body and held that the soul
Soul
A soul in certain spiritual, philosophical, and psychological traditions is the incorporeal essence of a person or living thing or object. Many philosophical and spiritual systems teach that humans have souls, and others teach that all living things and even inanimate objects have souls. The...
(the pneuma
Pneuma
Pneuma is an ancient Greek word for "breath," and in a religious context for "spirit" or "soul." It has various technical meanings for medical writers and philosophers of classical antiquity, particularly in regard to physiology, and is also used in Greek translations of the Hebrew Bible and in...
) enters the body when the newborn takes its first breath. Even then, the Stoics believed the child is neither rational being nor moral agent until 14 years of age. Aristotle proposed a theory of progressive ensoulment, stating that the fetus acquired first a vegetative soul, then an animal soul, then a rational soul, with the male providing the "rational soul" that animated the fetus at 40 days after conception. Opinion in the Islamic world differed as to whether the soul was "blown into" the fetus at 40 days or 120. Anglo-Saxon medical texts held that a fetus was "a man without a soul" until after the third month.
Generally, the question of the morality of abortion involved the question of the nature of the "animating principle", usually called the "rational soul", when the animating principle entered the body, whether it was an integral part of the bodily form and substance, whether it was pre-existent and subject to Reincarnation
Reincarnation
Reincarnation best describes the concept where the soul or spirit, after the death of the body, is believed to return to live in a new human body, or, in some traditions, either as a human being, animal or plant...
or Pre-existence
Pre-existence
Pre-existence , beforelife, or pre-mortal existence refers to the belief that each individual human soul existed before conception, and at conception one of these pre-existent souls enters, or is placed by God, in the body...
, and whether a reincarnating soul might suffer as a result of the abortion. On these bases, some societies allowed infanticide
Infanticide
Infanticide or infant homicide is the killing of a human infant. Neonaticide, a killing within 24 hours of a baby's birth, is most commonly done by the mother.In many past societies, certain forms of infanticide were considered permissible...
of the newborn prior to its first breath (Stoic) or first nourishment (Germanic tribes), while some had differing laws for abortion depending on whether quickening
Quickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
had occurred.
Hippocratic Oath
The Hippocratic Oath is a code of professional conduct that can be compared with a set of similar edicts set down by Confucius. It is often cited as evidence of abortion attitudes in ancient Greece.In Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, the US Supreme Court questioned the validity of this source, noting that "the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians."
The clause referencing abortion has been questioned on a number of grounds. Authorship of this and other sections has been questioned as the language reflects Pythagorean influence; it has been suggested that he is specify that he would not give a pessary to a woman because that would abrogate the husband's prerogative in the matter; and is at odds with Hippocrates' own conduct when asked by a friend to provide an abortion for her slave girl whom the kinswoman had been using as a prostitute. He describes the kind of abortion he prescribed, and records no indication of his opinion of the slave's profession. Elsewhere, he gives instruction on how to obtain an abortion through bloodletting.
Legal Opinions
The earliest texts almost uniformly preach respect for human life; but a reading of these passages must be balanced with passages meting out harsh and often horrific punishment for social transgressions of lower caste individuals against the upper castes. In ancient India, a sudra could be horribly punished for the crime of learning the Vedas; and in Rome, the Twelve Tablets were published only in response to "demands of the people".The value of a human being varied according to rank and social circumstances. (Thus, even an upper class male might be considered a mere boy until well into his later years; with the term "boy" having a meaning similar to slave.) A slave woman might be punished by her master if he disapproved of her abortion, regardless of who the father was, because she destroyed his property. The monetary value of human beings is reflected in the value of fines paid for personal crimes, which varied in accordance both with the rank of the offender and of the victim. In Lev. 27:6, an infant of one month or less has no monetary value.
Canon Law
There are no prohibitions of abortion in the Confucian texts, nor mention of it in the earliest Vedas. While there is no direct mention of abortion in the Bible, Exodus 21:22-24 implies that a miscarriage is "no harm done". Most Jewish writers allowed abortion to save the mother's life, and hesitated to impose civil laws against abortion, feeling that most women would ignore them. The Talmud deems the fetus to be part of its mother and has no "juridical personality". There is also no direct mention of abortion in the Qu'ran, although based on Qur'an 23:12-14, most jurists agree that abortion is acceptable up to 120 days after conception.While the earliest Vedas have no mention of abortion, later scripture condemns it as one of the vilest of crimes, resulting in loss of caste and thus loss of liberation from samsara. Despite such harsh condemnation, the penalty for abortion is the withholding of water libations from the woman; while the abortionist may lose caste and, with it, opportunity for liberation from samsara.
In Buddhism, the oldest Theraveda texts condemn abortion but do not prohibit or prescribe penance. In later texts, a Buddhist monk who provides abortion is "defeated" - excluded from the religious community - if the fetus dies. If the mother dies but not the fetus, this is only a grave sin, because he had not intended to kill her.
Generally, most texts allow abortion to save the woman's life.
Ecclesiastical Courts in Europe
Following the decline of the Roman Empire, Ecclesiastical courts held wide jurisdiction throughout Europe. Their purpose was to instruct and correct, rather than to punish, and therefore imposed sentences of penance, rather than corporal punishment. The Church treated the killing of an unformed or "unanimated" fetus as a matter of "anticipated homicide", with a corresponding lesser penance required, while late abortion was homicide.One of the earliest Churchmen, Tertullian
Tertullian
Quintus Septimius Florens Tertullianus, anglicised as Tertullian , was a prolific early Christian author from Carthage in the Roman province of Africa. He is the first Christian author to produce an extensive corpus of Latin Christian literature. He also was a notable early Christian apologist and...
, believed that the soul of the fetus is generated by the parents along with the generation of the new body. This viewpoint, later known as the heresy of Traducianism
Traducianism
In Christian theology, traducianism is a doctrine about the origin of the soul , in one of the biblical uses of word to mean the immaterial aspect of human beings . Traducianism means that this immaterial aspect is transmitted through natural generation along with the body, the material aspect of...
, was deemed unsatisfactory by St. Augustine
St. Augustine
-People:* Augustine of Hippo or Augustine of Hippo , father of the Latin church* Augustine of Canterbury , first Archbishop of Canterbury* Augustine Webster, an English Catholic martyr.-Places:*St. Augustine, Florida, United States...
, as it did not account for original sin. Basing himself on the Septuagint version of Exodus 21:22, he deemed abortion, while deplorable, to be less than murder. He also affirmed the Aristotelian view of delayed hominization. St. Fulgentius
Fulgentius of Ruspe
Saint Fulgentius of Ruspe was bishop of the city of Ruspe, North Africa, in the 5th and 6th century who was canonized as a Christian saint...
opposed abortion even for the purpose of saving the woman's life, saying: "But let the child be brought to term and baptized and saved from perdition."
The Venerable Bede, in the Penitential ascribed to him by Albers c. 725, upheld the 40 day distinction, prescribing a one year penance for abortion before the 40th day, and added that it makes a difference whether the woman was simply in financial desperation, or had conceived out of "harlotry". After 40 days the penance was 71/2 years, the same as for homicide.
In the 12th century, in the Decretum Gratiani
Decretum Gratiani
The Decretum Gratiani or Concordia discordantium canonum is a collection of Canon law compiled and written in the 12th century as a legal textbook by the jurist known as Gratian. It forms the first part of the collection of six legal texts, which together became known as the Corpus Juris Canonici...
,
Gratian, and the medieval canon law generally, merely followed the prevailing scientific view of the period that quickening represented the time at which the fetus was “vivified,” defined as the time at which it was “ensouled.”
A century later, St. Thomas Aquinas upheld delayed hominization: "seed and what is not seed is determined by sensation and movement."
In 1588, Pope Sixtus V
Pope Sixtus V
Pope Sixtus V , born Felice Peretti di Montalto, was Pope from 1585 to 1590.-Early life:The chronicler Andrija Zmajević states that Felice's family originated from modern-day Montenegro...
adopted a papal bull adopting the position of St. Thomas Aquinas that contraception
Contraception
Contraception is the prevention of the fusion of gametes during or after sexual activity. The term contraception is a contraction of contra, which means against, and the word conception, meaning fertilization...
and abortion were crimes against nature
Crimes Against Nature
Crimes Against Nature : How George W. Bush and His Corporate Pals Are Plundering the Country and Hijacking Our Democracy is a book written in 2004 by Robert F. Kennedy, Jr....
and sin
Sin
In religion, sin is the violation or deviation of an eternal divine law or standard. The term sin may also refer to the state of having committed such a violation. Christians believe the moral code of conduct is decreed by God In religion, sin (also called peccancy) is the violation or deviation...
s against marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. This verdict was relaxed three years later by Pope Gregory XIV
Pope Gregory XIV
Pope Gregory XIV , born Niccolò Sfondrati, was Pope from 5 December 1590 until his death in 1591.- Early career :...
, who pronounced that abortion before "hominization
Hominization
-Paleontology:The first formations of social Man or in Marxist terms, the role of social labour in the development of humans from apes. Many attempts have been made at explaining this, from in Classical times, Hobbes, Rousseau to Hegel...
" should not be subject to ecclesiastical penalties that were any stricter than civil penalties (Codicis iuris fontes, ed. P. Gasparri, vol. 1 (Rome, 1927), pp. 330–331).
Secular Law
The Code of HammurabiCode of Hammurabi
The Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
, ca. 1760 BC, contains the earliest known laws about miscarriage caused by assault, and seems intended to protect the rights of the father, Articles 209-214 required monetary compensation in accordance with the social rank of the prospective mother, and a separate fine if the woman dies. The Zend Avesta imposes a sentence of Peshôtanu (200 lashes) on a woman who, out of fear of discovery, "brings on menses" when conception occurs out of wedlock, with no mention of a penalty for the male. The Code of the Assura, c. 1075 BCE has penalties for several different types of abortion crimes: if a woman aborts against her husband's wishes, if a man causes an abortion in any woman at the first stage of pregnancy; if a man causes an abortion in a harlot. In the first case, the woman is to be crucified; in the second, the man is fined two talents; and in the third, the man is to make restitution for a life.
While there is no comprehensive review of property rights law in the Old Celtic Law, we do know that a husband could divorce his wife in the case of abortion.
While there were no laws against abortion in Ancient Rome, the Twelve Tables
Twelve Tables
The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centrepiece of the constitution of the Roman Republic and the core of the mos maiorum...
did allow for infanticide through exposure in cases of unwanted female newborns, and mandated that children born deformed also be exposed. In 211 AD, at the intersection of the reigns of Septimius Severus
Septimius Severus
Septimius Severus , also known as Severus, was Roman Emperor from 193 to 211. Severus was born in Leptis Magna in the province of Africa. As a young man he advanced through the customary succession of offices under the reigns of Marcus Aurelius and Commodus. Severus seized power after the death of...
and Caracalla
Caracalla
Caracalla , was Roman emperor from 198 to 217. The eldest son of Septimius Severus, he ruled jointly with his younger brother Geta until he murdered the latter in 211...
, abortions which violated the father's rights or the mother's duties were punished by temporary exile.
The Visigothic Code
Visigothic Code
The Visigothic Code comprises a set of laws promulgated by the Visigothic king of Hispania, Chindasuinth in his second year...
had a system of punishments similar to that of the Zend Avesta, with 200 lashes for a woman causing her own abortion, or for a male slave performing an abortion on a freeborn woman, but with various fines in all other circumstances.
In 9th century England, King Alfred's laws laid down the wergeld to be paid in compensation for various murders: If a man slay a woman with child, he shall pay full wergeld for the woman, and half wergeld for the dead fetus, in compensation for the husband's material loss.
In the Middle Ages, German women were allowed to expose their newborns.
English Common Law
Starting with Leges Henrici Primi, around 1115, abortion was treated as a misdemeanor prior to "quickeningQuickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
", accruing a penalty of 3 years' penance, or as a "quasi homicide" after quickening. It is believed that abortion cases were usually heard in ecclesiastical courts, which dealt with matters of morality, rather than in secular courts, which dealt with breaches of the King's peace. The punishment for the capital crime of homicide was therefore not applied. Drawing on William Staunford
William Staunford
Sir William Staunford was an English jurist and was appointed a judge of the Court of Common Pleas in 1554.In 1557 Staunford published the first textbook of English criminal law; Les Plees del Coron. In 1561 his An Exposicion of the Kinges Prerogative was published...
, Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
first formulated the born alive rule
Born alive rule
The "born alive" rule is a legal principle that holds that various aspects of the criminal law, such as the statutes relating to homicide and to assault, apply only to a child that is "born alive"...
in Institutes of the Lawes of England
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
, drawing on the established definition of Murder in English law
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
that the victim be "a reasonable creature in rerum natura. This formulation appeared in William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
's commentaries and in Bouvier's Law Dictionary
Bouvier's Law Dictionary
Bouvier's Law Dictionary is a book with a long tradition in the United States legal community. The first edition was written by John Bouvier.John Bouvier was born in Codogno, France, but came to the United States at an early age. He became a U.S. citizen in 1812, was admitted to the bar in 1818,...
. Henry Bracton, considered abortion to be homicide.
Modern Codification
Some have claimed that scientific knowledge of fertilizationHuman fertilization
Human fertilization is the union of a humanoid egg and sperm, usually occurring in the ampulla of the uterine tube. The result of this union is the production of a zygote, or fertilized egg, initiating prenatal development...
, was used to justify the stricter abortion laws that were codified during the 19th century. This ignores other, perhaps more salient, aspects of the history of abortion law. The historical debate about vivification, animation, and delayed hominization were debates about when the fetus could be considered a "reasonable creature" - a human being - not simply when it had physical life; and this is what quickening
Quickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
was said to signify.
The process of criminalizing abortion, however, can be placed in a broader context whereby professional associations began to employ licencing procedures as a means of driving "irregulars" out of practice in fields as divers as medicine and architecture. Toward the end of the 18th century, medical associations began to co-operate "in vigorous measures for the suppression of empiricism
Empiricism
Empiricism is a theory of knowledge that asserts that knowledge comes only or primarily via sensory experience. One of several views of epistemology, the study of human knowledge, along with rationalism, idealism and historicism, empiricism emphasizes the role of experience and evidence,...
, and the encouragement of regular practitioners" - that is, for the suppression of medicine based on practice, such as herbalism and midwifery, and the promotion of medical science based on theory - and also began to assist in the regulation, restriction, and commercialization of reproduction products such as pessaries, condoms and abortifacients. Science based medicine at the time was based on humorism
Humorism
Humorism, or humoralism, is a now discredited theory of the makeup and workings of the human body, adopted by Greek and Roman physicians and philosophers, positing that an excess or deficiency of any of four distinct bodily fluids in a person directly influences their temperament and health...
, a theory that had not changed since Galen's day, and relied on dangerous practices such as bloodletting, purging, and the extensive use of mercury
Mercury (element)
Mercury is a chemical element with the symbol Hg and atomic number 80. It is also known as quicksilver or hydrargyrum...
, a toxin. Public backlash forced a temporary retreat, with licencing regulations being repealed during the next few decades.
In 1857, a more successful campaign was launched. The newly formed AMA
"were motivated to organize for the criminalization of abortion in part by their desire to win professional power, control medical practice, and restrict their irregular competitors, including homeopaths, midwives, and others. Hostility towards feminists, immigrants, and Catholics fueled the medical campaign against abortion and the passage of abortion laws by state legislatures.
Despite a flurry of well publicized inquests beginning with the turn of the 19th century, prosecutions for abortions usually proceeded only in response to a woman's death. In addition to the abortionist, unmarried men whose lovers had died were increasingly prosecuted as well, the reasoning being that only his refusal to marry could have driven a woman to abortion.