The Criminalization of Abortion in the West: Its Origins in Medieval Law

Introduction

1 Introduction This book is concerned with the historical processes by which, over the course of the High and later Middle Ages, abortion as such—or what in American English denotes the termination of a pregnancy at the will of the pregnant woman herself—came to be treated as worthy of criminal punishment. To find the act for the first time identified as a “crime”in the modern sense of the word one has to go back to the writings of twelfth-century teachers at the emerging schools of ecclesiastical (or canon) and Roman law in the northern Italian city of Bologna. It was there that the present-day notion of crime was differentiated systematically and in wholly unprecedented fashion from other forms of wrong such as “sin” and “tort.” And since then a theoretical consensus as to the proper meaning of these terms was perpetuated institutionally at centers of jurisprudence housed in so-called universities. Jurists who worked during the formative phase of academic (or scholastic) law were quick to agree with Gratian, the author of the oldest canonistic textbook (ca. 1140),that the killing of a human fetus would constitute homicide and warrant identical punitive measures. They also followed another of Gratian’s suggestions to the effect that the humanity of unborn life was not the immediate result of conception but rather occurred subsequently, that is, when embryonic existence acquired limbs and human shape with the infusion of an immortal soul. In prevailing lawyerly opinion, this decisive event 2 INTRODUCTION came about sometime early during gestation if not, according to the civilian Azo Porticus (fl. 1190), either forty or eighty days into the pregnancy, depending on whether the expected baby was a boy or a girl. The basic outline of this theory soon enjoyed wide circulation with its insistence on the complete equation of abortion and homicide as long as the slain victim possessed human form. By 1250 it must have been known all across the Latin Christian world, from Portugal and Ireland in the extreme west to Poland and Hungary in the east. Its thoroughgoing dissemination was secured by church officials whose hierarchy adopted the teachings of academic jurisprudence from the outset as its general law. Where lay jurisdictions ,on the other hand,were slow to embrace the doctrine (in Germany,for example), or failed altogether to do so (as in England), the rules provided by Gratian, Azo, and their colleagues were nevertheless preached in the ecclesiastical sphere and insisted upon in sermons, private confessions, and courts of spiritual adjudication. The road from theory to practical implementation was a very long and arduous one. The oldest known trial from Italy that fully adheres to the significance of the terms “criminal” and “abortion” in modern parlance was recorded in Venice during the month of June 1490,some three hundred years after Bolognese theorists had placed the offense on a par with homicide . Similarly,instances of actual sentencing from the kingdom of France do not seem to trace back far beyond the fifteenth century. This compels us to look for earlier evidence at a different set of criminal prosecutions that also centered on charges of manslaughter in the maternal womb.1 Having established the parallel between death of a human fetus and homicide , Azo and Gratian exerted influence on judicial practice of their own time not so much by offering legal protection to unwanted children as by threatening criminal punishment for those who had killed an unborn child against the will of the pregnant mother. Over the course of the thirteenth and fourteenth centuries,records alluding to prenatal manslaughter as a capital offense regularly reported incidents in which the defendant was said to have caused “miscarriage by assault.” From 1200 to the early 1300s, English common-law courts dealt with dozens of unborn children killed by external aggressors and granted women aggrieved by the violent termination of their 1. Early French cases of criminal abortion proper appear in two royal lettres de remission, dating respectively to February 1392 and July 1399;see Paris,AN, JJ 142,no. 103,in Jean-Claude Bologne, La naissance interdite. Sterilité, avortement, contraception au moyen âge (Paris: Orban, 1988), 287–288; and Paris, AN, JJ 154, no. 310. The Italian incident of 1490 is documented in Venice, AS, Reg. 3657, fol. 41r, and printed in Die Abtreibung, 245n429; cf. below, chap. 8, note 7. INTRODUCTION 3 pregnancies the right to press felony charges against perpetrators. In one case of 1283 or 1284, proceedings even...