Abortion Law, History & Religion
Abortion Has Always Been With Us
In 1955, the anthropologist George Devereux demonstrated that abortion has been practised in almost all human communities from the earliest times.1 The patterns of abortion use, in hundreds of societies around the world since before recorded history, have been strikingly similar. Women faced with unwanted pregnancies have turned to abortion, regardless of religious or legal sanction and often at considerable risk.2 Used to deal with upheavals in personal, family, and community life, abortion has been called “a fundamental aspect of human behaviour”.
In primitive tribal societies, abortions were induced by using poisonous herbs, sharp sticks, or by sheer pressure on the abdomen until vaginal bleeding occurred. Abortion techniques are described in the oldest known medical texts.2 The ancient Chinese and Egyptians had their methods and recipes to cause abortion, and Greek and Roman civilizations considered abortion an integral part of maintaining a stable population. Ancient instruments, such as the ones found at Pompeii and Herculaneum, were much like modern surgical instruments. The Greeks and Romans also had various poisons administered in various ways, including through tampons.
Socrates, Plato and Aristotle were all known to suggest abortion. Even Hippocrates, who spoke against abortion because he feared injury to the woman, recommended it on occasion by prescribing violent exercises. Roman morality placed no social stigma on abortion.
Early Christians condemned abortion, but did not view the termination of a pregnancy to be an abortion before “ensoulment”, the definition of when life began in the womb. Up to 400 AD., as the relatively few Christians were widely scattered geographically, the actual practice of abortion among Christians probably varied considerably and was influenced by regional customs and practices.
Evolving Position of the Christian Church
St. Augustine (AD 354-430) said, “There cannot yet be said to be a live soul in a body that lacks sensation”, and held that abortion required penance only for the sexual aspect of the sin.6 He and other early Christian theologians believed, as had Aristotle centuries before, that “animation”, or the coming alive of the fetus, occurred forty days after conception for a boy and eighty days after conception for a girl. The conclusion that early abortion is not homicide is contained in the first authoritative collection of canon law accepted by the church in 1140.6 As this collection was used as an instruction manual for priests until the new Code of Canon Law of 1917, its view of abortion has had great influence.
At the beginning of the 13th century, Pope Innocent III wrote that “quickening” —the time when a woman first feels the fetus move within her— was the moment at which abortion became homicide; prior to quickening, abortion was a less serious sin. Pope Gregory XIV agreed, designating quickening as occurring after a period of 116 days (about 17 weeks). His declaration in 1591 that early abortion was not grounds for excommunication continued to be the abortion policy of the Catholic Church until 1869.
The tolerant approach to abortion which had prevailed in the Roman Catholic Church for centuries ended at the end of the nineteenth century.7 In 1869, Pope Pius IX officially eliminated the Catholic distinction between an animated and a nonanimated fetus and required excommunication for abortions at any stage of pregnancy.
This change has been seen by some as a means of countering the rising birth control movement, especially in France,8 with its declining Catholic population. In Italy, during the years 1848 to 1870, the papal states shrank from almost one-third of the country to what is now Vatican City. It has been argued that the Pope’s restriction on abortion was motivated by a need to strengthen the Church’s spiritual control over its followers in the face of this declining political power.
Early Legal Opinion
Historically, religious beliefs coloured legal opinion on abortion. From 1307 to 1803, abortion before the fetus moved perceptibly or “quickened” was not punished under English common law, and not regarded by society at large as a moral problem.9 Because most abortions took place before quickening, punishment was rare. Even if performed after quickening, the offense was usually considered a misdemeanour. This was the case until the nineteenth century; the entry of the state into the regulation of abortion has been relatively recent.
Two prominent legal cases from fourteenth century England illustrate prevailing practices at that time. In both the “Twinslayer’s Case” of 1327 and the “Abortionist’s Case” of 1348, the judges refused to make causing the death of a fetus a legal offence. The judges were, in this pre-Reformation period, all Roman Catholic.
In 1670, the question of whether or not abortion was murder came before the English judge, Sir Matthew Hale. Hale decided that if a woman died as a result of an abortion then the abortionist was guilty of murder. No mention was made of the fetus.
This tolerant common-law approach ended in 1803 when a criminal abortion law was codified by Lord Ellenborough. The abortion of a “quick” fetus became a capital offence, while abortions performed prior to quickening incurred lesser penalties. An article in the 1832 London Legal Examiner justified the new laws on the grounds of protecting women from the dangerous abortion techniques which were popular at the time:
“The reason assigned for the punishment of abortion is not that thereby an embryo human being is destroyed, but that it rarely or ever can be effected with drugs without sacrifice of the mother’s life.”
In the United States, similar legislative iniatives began in the 1820’s and proceeded state by state as the American frontier moved westward. In 1858, the New Jersey Supreme Court, pronouncing upon the state’s new abortion law, said:
“The design of the statute was not to prevent the procuring of abortions, so much as to guard the health and life of the mother against consequences of such attempts.”
During the nineteenth century, legal barriers to abortion were erected throughout the western world. In 1869 the Canadian Parliament enacted a criminal law which prohibited abortion and punished it with a penalty of life imprisonment. This law mirrored the laws of a number of provinces in pre-Confederation Canada; all of these statutes were more or less modeled on the English legislation of Lord Ellenborough.
Pressure for restrictions was not coming from the general public. Physicians were in the forefront of the crusade to criminalize abortion in England, the U.S. and Canada. They were voicing concern for the health of women and the destruction of fetal life. However, “there is substantial evidence that medical men were concerned not only for the welfare of the potential victims of abortion but also to further the process of establishing and consolidating their status as a profession.” Women were turning to midwives, herbalists, drug dispensers and sometimes quacks to end their pregnancies, and doctors wanted to gain control over the practice of medicine and elevate the status of their profession.
Race and class were also factors in the passage of the new wave of anti-abortion laws. Abortion was increasingly being used by white, married, Protestant, middle and upper class women to control their family size. “Nativists” (those who were “native-born” to the new country) in Canada, for instance, voiced their concern about what they called the “race suicide” of the Anglo-Saxon population9 in relation to the burgeoning French-Canadian and “foreign” immigrant populations. Anglo-Saxon women who refused maternity by employing contraception or abortion were condemned as “traitors to the race”. Accordingly, the Canadian parliament made contraception illegal in 1892, following the example of the U.S.
Another interpretation of the trend toward more restrictive abortion legislation focuses on nation states’ demographic concerns. Powerful social pressures for population increase meant that “the concern was perhaps more for the quantity of human beings than for the quality of human life.”
In the words of the authors of Our Bodies, Ourselves:
“.just at a time when women’s increasing understanding of conception was helping them to avoid pregnancy, certain governments and religious groups desired continued population growth to fill growing industries and new farmable territories.”
Despite its criminalization, women continued to regard induced miscarriage before the fetus “quickened” as entirely ethical, and were surprised to learn that it was illegal.21 Women saw themselves as doing what was necessary to bring back their menses, to “put themselves right”. In the words of historians Angus and Arlene Tigar McLaren,
“Doctors were never to be totally successful in convincing women of the immorality of abortion. For many it was to remain an essential method of fertility control.”21
Women continued to have abortions in roughly the same proportions as they had prior to its criminalization.5 After it was criminalized, abortion simply went underground and became a clandestine and therefore much more dangerous operation for women to undergo.
During the latter part of the nineteenth century, European views on the restriction of abortion were spread by the colonial powers throughout Africa, Asia and beyond.2 The strict prohibitions of Spain are reflected in many statutes decreed in South America, for example. Toward the end of the 19th century, China and Japan, at the time under the influence of Western powers, also criminalized abortion for the first time.2
American historian James C. Mohr makes the point that from an historical perspective, the nineteenth century’s wave of restrictive abortion laws can be seen as a deviation from the norm, a period of interruption of the historically tolerant attitude towards abortion.22
“From the second half of the 19th century, through World War II, abortion was highly restricted almost everywhere. Liberalization of abortion laws occurred in most of the countries of Eastern and Central Europe in the 1950s and in almost all the remaining developed countries during the 1960s and 1970s. A few developing countries also relaxed their restrictions on abortion during the same period, most notably China and India.”23
A number of factors have been recognized as contributing to this liberalizing trend.24 Attitudes toward sexuality and procreation were changing, and the reduced influence of religious institutions was a related factor.24 In some countries, rubella epidemics and thalidomide created awareness of the need for legal abortion. In others, there was concern about population growth. Illegal abortion had long been a serious public health hazard,25 and eventually women being injured or dying from unnecessarily dangerous abortions became a concern. Arguments were made in favour of the right of poor women to have access to abortion services. More recently, women’s right to control their fertility has been recognized.24
While the pace of abortion law reform has slowed, the overall movement is still in the direction of liberalization. Recently, however, restrictions have increased in a few countries.24
“As often happens when rapid social change occurs, the movement to legalize abortion has generated resistance and a counter movement. Strenuous efforts are being made to increase restrictions on abortion and to block further liberalization of laws, especially in the United States. [and] the former Communist countries,.but [anti-abortionists] are also highly visible in Canada, England, France, Germany, Italy. and other developed as well as developing countries.”24
The degree of liberalization has varied from country to country. Abortion laws are usually grouped according to “indications”, or circumstances under which abortions can be performed. The most restrictive laws either completely ban abortions or restrict them to cases where the pregnancy poses a risk to the woman’s life. Other laws also consider risks to the physical and mental health of the woman or her fetus. Some also allow abortion for social-medical or economic reasons, as in the case where an additional child will bring undue burdens to an existing family. The broadest category allows abortion on request (usually within the first trimester).
1. George Devereux, “A Typological Study of Abortion in 350 Primitive, Ancient and Pre-Industrial Societies”, in Therapeutic Abortion, ed. Harold Rosen, New York: The Julian Press Inc., 1954.
2. H.P. David, “Abortion Policies”, in Abortion and Sterilization: Medical and Social Aspects, J.E. Hodgson, ed., Grune and Stratton, New York, 1981, pp.1-40.
3. Nan Chase, “Abortion: A Long History Can’t Be Stopped”, Vancouver Sun, May 1, 1989.
4. Wendell W. Watters, Compulsory Parenthood: the Truth about Abortion, McClelland and Stewart, Toronto, 1976, p.52.
5. Deborah R. McFarlane, “Induced Abortion: An Historical Overview”, American Journal of Gynaecologic Health, Vo. VII, No. 3, May/June 1993, pp.77-82.
6. Jane Hurst, “The History of Abortion in the Catholic Church: The Untold Story”, Catholics for a Free Choice, Washington, D.C., 1983.
7. Wendell W. Watters, p.79.
8. Ibid, pp.92-3.
9. Alison Prentice et al, Canadian Women: A History, Harcourt Brace
Jovanovich, Canada, pg.165.
10. Donald P. Kommers,”Abortion in Six Countries: A Comparative Legal Analysis,in Abortion, Medicine and the LawFourth edition, J.D. Butler & D.F. Walbert, eds., Facts on File, N.Y.1992, p.312.
11. Janine Brodie et al, The Politics of Abortion, Oxford University Press, Toronto, 1992, p.9.
12. Jimmey Kinney.Ms., April 1973, p.48-9.
13. A. Anne McLellan, “Abortion Law in Canada”, in Abortion, Medicine and the Law, op. cit, p.334.
14. Donald P. Kommers, p.317.
15. James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, New York: Oxford University Press, 1978.
16. Constance Backhouse, Petticoats and Prejudice: Women and the Law in Nineteenth Century Canada, Women’s Press, Toronto.
17. Terry, “England”, in Abortion and Protection of the Human Fetus 78, (S. Frankowski and G. Cole, eds., 1987).
18. James C. Mohr, p.244.
19. Wendell W. Watters, p. xv.
20. Boston Women’s Health Book Collective, Our Bodies, Ourselves, 2nd ed. (New York: Simon & Shuster, 1971), p.216-7.
21. Angus McLaren and Arlene Tigar McLaren,The Bedroom and the State: The Changing Practices and Politics of Contraception and Abortion in Canada 1880-1980, M & S,Toronto.,1986, p.38-9.
22. James C. Mohr, p.259.
23. Stanley K. Henshaw, “Induced Abortion: A World Review, 1990”, Family Planning Perspectives, Vol. 22, No. 2, March/April 1990, p.78.
24. Stanley K. Henshaw, “Recent Trends in the Legal Status of Induced Abortion”, Journal of Public Health Policy, Summer, 1994, pp.165-172.