- The Criminalization of Abortion in the West: Its Origins in Medieval Law by Wolfgang P. Müller
This book is likely to mislead the casual reader and could even mislead more serious students of abortion law. Müller sets about to discover how abortion (which he defines as the voluntary termination of a pregnancy, p. 10) came to be considered, across Europe from Ireland and England to Poland and Hungary as a crime after 1140, when between the fall of Rome (476) and the twelfth century it was not so seen (pp. 1, 4–5). Put in this fashion, it suggests that, before the twelfth century, abortion was not considered a serious wrong and not any of the state’s business.
Müller insists that historians must attempt to understand ancient legal terms in the context of their times and not according to their modern understanding (p. 8), but fails to follow this premise. He begins his introduction by conceding that abortion before the twelfth century was considered a tort or a sin (pp. 5–6). He does not dwell on the point, contrary to his emphasis on the idea that abortion became a crime after the twelfth century. Yet before the twelfth century, a great many modern crimes (offenses against society or against the state) were then considered torts (offenses only against an individual person) or sins (offenses against God, pp. 34–44). Modern crimes that were then considered torts or sins (or both) included murder and rape. They were not prosecuted in the king’s name but in the name of an injured individual. These came to be seen as crimes at about the same time that abortion came to be considered a crime. In each case, what happened was a transformation of the methodology of enforcement and not a change in the perception of the activity as wrong.
This reviewer is not in a position to evaluate the quality of Müller’s research on countries such as France, Germany, Hungary, Italy, or Poland, but has done research on the early common law of abortion and finds that Müller gets the case of England seriously wrong. This tends to raise the question of reliability regarding the author’s reading of the other materials. He concedes at the beginning that English law in the thirteenth century treated abortion as homicide (pp. 11–12, 66–75), but then claims that the English courts abandoned this view after 1327 based on the incomplete report of one case (R. v. de Bourton, “the Twinslayer’s case”) and a very brief report of another case (“Anonymous’ case,” pp. 134–48). Although Müller cites (pp. 138–39, nn. 24, 25, 26) Phil Rafferty’s PhD dissertation and this reviewer’s Dispelling the Myths of Abortion History (Durham, NC, 2006), he chooses [End Page 109] to rely only on the one Yearbook Version of de Bourton’s case that ambiguously supports the noncriminality of abortion while ignoring more recently discovered reports of the decision that decisively do reject such a reading, as Rafferty and this reviewer report. Similarly, Müller gives weight to “Anonymous’ case,” although he comes close to admitting that this case derives from a source that has been widely described as fraudulent (p. 135). Müller never engages at all with any of the arguments made by Rafferty and this reviewer on any points.
Even when Müller concedes that abortion was, at least in theory, a homicide, he fixates on the relative rarity of actual prosecutions (p. 2). He makes the rarity more pronounced by ignoring any prosecution involving a serious injury to the mother (pp. 3, 18–19). (He also ignores all ecclesiastical prosecutions, p. 6.) He concludes, as others have, that this relative lack of prosecution must mean a lack of public support for prosecutions. The root of Müller’s problem, as with so many others, is a refusal to come to grips with just how...