The Criminalization of Abortion in the West: Its Origins in Medieval Law by Wolfgang P. Müller (review)

In The Criminalization of Abortion in the West, Wolfgang Müller argues convincingly that abortion came first to be identified as a crime in the works of twelfth-century teachers of Roman and canon or ecclesiastical law in Bologna. Their ideas spread throughout most of Europe, shaping legal proceedings and prosecution for abortion and infanticide. Müller exerts care in his analysis, paying attention to variation over time and space, repercussions of the social status of individuals involved in such cases, and ways in which custom and community norms shaped the outcomes of cases. His measured statements and well-researched chapters advance a compelling argument while accounting for source difficulties and the ways that modern conceptions of law and abortion have shaped the historical study of crime, particularly against nascent human life and infants. Müller traces legal ideas and practices more than the history of abortion, infanticide, and willful miscarriage. His last chapter explicates the difficulties of ascertaining how common willful acts of violence against fetuses and infants were from the twelfth to sixteenth centuries. Legal texts, court proceedings, letters of petition, and jurisprudence have far more to offer on legal conceptions and judicial outcomes, and Müller lucidly explains legal technicalities while providing telling vignettes from the sources.

Müller organizes the book to demonstrate how and why legal practitioners and teachers, ecclesiastical and lay leaders, and elite and humble laypersons came over time to perceive abortion, miscarriage by percussio or violent attack, infanticide without witnesses, and concealing pregnancy as crimes worthy of prosecution and severe punishment. His first chapter explains how twelfth-century Bolognese law teachers worked to harmonize conflicting legal authorities, thereby producing a body of scholastic jurisprudence that denoted uniform and lasting definitions of crime, including abortion. As polities from the twelfth century on came increasingly to prosecute individuals from the top down, their courts drew from these legal ideas. As a means to explore these early prosecutions in chapter 2, Müller examines the ways scholastic conceptions of animation of the fetus affected both canon law and English common law (which drew from canon law) concerning abortion. In English courts, for example, this influence came into play in thirteenth-century prosecution of individuals for percussio. Müller posits in his third chapter that these developments came “sideways” from academic institutions into secular and church courts rather than downward from political leaders (77).

The next two chapters explicate arguments for and against criminalization, focusing on embryology, understandings of conception and gestation, and theories concerning the animation of the fetus. Based on the Greek translation of Exodus 21:22–23 in the Septuagint, successive animation, the idea that the fetus became human and gained a soul around the time its movement was palpable, became the dominant medieval theory and affected legal procedures. A perplexing situation for medieval theorists and legal practitioners was therapeutic miscarriage, that is, one induced to save the life of a mother. Generally, if a physician caused a miscarriage early in a pregnancy for a woman’s health, it was acceptable, but too late in a pregnancy, and the doctor would be causing a death. By the sixteenth century, theorists put more stake in a physician’s expertise, putting it “beyond prosecutorial suspicion” (116).

Müller’s sixth chapter makes cautious conclusions concerning abortion experts and expertise. Until the fifteenth century, medieval medical treatises included little discussion of gestation, pregnancy, and birth, for they were the province of midwives and matrons. Late medieval court cases provide evidence of such female expertise, for women sometimes acted as expert witnesses regarding pregnancy and birth. In French court records, for example, they offered opinions as to whether infants’ deaths resulted from labor or from assault during pregnancy. Word of mouth accounted for women’s transmission of practical knowledge. In medical texts, abortion appears as a last resort to save...