Historically, abortion has been widely used as a method of limiting births, although the methods prescribed were not always effective. Perhaps the earliest recorded incident of an abortive technique is found in the royal archives of China about five thousand years ago. Abortifacients were included in an Egyptian medical papyrus of 1550 b.c.e. Technically both the laws of Hammurabi dating from 1728 b.c.e. and Jews during the period of Exodus established penalties against abortion but these were strictly limited to payment of compensation to a husband when an assault on his pregnant wife resulted in miscarriage. Overall, however, it can be said that abortion was not a subject to which persons in antiquity attached any deep feeling of condemnation or immorality.
Abortion was part of official policy in many of the Greek states, and Plato (427-347 b.c.e.), for example, insisted on abortion for every woman over forty who became pregnant. Aristotle (384-322 b.c.e.) held that when couples had children in excess and they were averse to having more offspring, abortion should be “procured before life and sense have begun.”
As indicated in the entry on classical medicine, the Greek and Roman medical literature mentions a number of abortifacients and menstrual regulators. The major exception is the provision in the so-called Hippocratic Oath. Attributing the text to Hippocrates (c. 460-370 b.c.e.) is questionable, and most scholars read the prohibition as a later addition, perhaps one inserted under the influence of a Pythagorean sect that believed that the body and soul were fused into one at conception, an idea with which the various writers of the Hippocratic corpus did not agree.
Roman law did not oppose abortion since the basic legal principle was that the fetus was not a human being and it was only at birth that it became one. A husband, as the pater familias, father of the family, even had the authority to order his wife to abort, but if she purposely terminated a pregnancy without his consent, he could punish her or divorce her. In general, it can be said that the laws and tradition of abortion were well entrenched in the Roman Empire, and in spite of Christian opposition the tradition remained until 374 m.e., more than a half century after the legal establishment of Christianity, that the killing of an infant was declared by law to be homicide.
The early theologians of the Christian Church, however, had long agitated for just such legislation. The Didache, or The Teaching of the Twelve Apostles, dating from the first century, condemns abortion and this condemnation was continued through the writings of Tertullian (155-222), Cyprian (200-258), Saint Basil (320-379), and others. Early church councils followed suit beginning with the Council of Ancyra in 314, which stipulated a ten-year penance for women who fornicated and then destroyed the product of their intercourse, although this might have been a later interpolation. Most Christian theologians, however, followed Aristotle in the belief that the soul developed in three stages: vegetable at conception, followed by a higher stage of animal soul, and finally by a rational soul. The rational soul took place some time after conception, forty days for a male soul and eighty or ninety days for a female. This belief in the delayed beginning of life, what John T. Noonan called “vivified,” was reaffirmed by Pope Innocent III (1198—1216) and entered into canon law through the writings of Pope Gregory IX (1227-1241).
Canon law influenced civil law on the continent and common law in England. Although the Anglo Saxons had probably regarded abortion solely as an ecclesiastical offense, Henry de Bracton (d. 1268) in his Laws and Customs of England carried over the provision of canon law on this topic into civil law, but condemned abortion only if the fetus had been formed and animated. When this occurred, however, was never defined by him. This continued to be the standard for English law until the nineteenth century. William Blackstone (1723-1780), whose commentaries had a great influence on American law, upheld the common law tradition of abortion only after quickening. Lawrence Lader held that after England’s break with Rome under Henry VIII English ecclesiastical courts seem to have lost all interest in the question, leaving the subject to be a matter of common law.
This was not true of the papal view, however, and in 1588 under Sixtus V (1585-1590) the old rule of quickening was eliminated and all abortions were classed as murder at any period of fetal development. This proved to be an aberration. John T. Noonan called Sixtus V “an extremist in pursuit of virtue,” and his successors must have felt the same because Gregory XIV, who succeeded Sixtus, abandoned his policy on the grounds that the edict had not produced the hope for changes. He revoked all the penalties applied by Sixtus and the old policy went back into effect.
In 1869, Pope Pius IX returned to the sanctions of Sixtus V and eliminated the distinction between a nonanimated and animated fetus. All abortions, according to Pius IX, should be regarded as murder. One of the reasons for the change was quite clearly an effort for consistency because the doctrine of Mary’s Immaculate Conception promulgated by Pius IX in 1854 had stated that “from the very first moment of her conception” in her mother’s womb she had been preserved from all stain of an original sin. This seemed to imply that Aristotle’s old distinction of the changing nature of the soul was no longer valid. In fact, in a sense, the pope was reflecting new developments in biology. William Harvey had argued that all life came from the egg but this had been challenged by the discovery of spermatozoa in 1677. Although there had been a debate between the ovists and spermists over the importance of each, there had been a growing belief that fertilization took place when the sperm and egg met. Some by the middle of the nineteenth century were even arguing that the sperm penetrated the egg, although this was not documented until Oscar Hertwig observed it in sea urchins in 1875. Still, it seemed that life itself might begin with the earliest successful mixture of the male element with the female. Probably ultimately, however, it was not biology that decided which direction the pope would go but the necessity for consistency. If life for the Virgin Mary began at the moment of her conception, then all life must begin at the same time.
Moreover, the pope’s rulings in a sense were reflecting a growing hostility to abortion. In 1803, the English parliament had replaced the common law about abortion with legislation that classed abortion (after quickening) as murder. Much of the impetus for the secular legislation against abortion was to preserve lives. American physicians, in their attempt to gain status over their rivals, such as midwives, also condemned the procedure, and their professional societies not only prohibited their members from engaging in abortion but had such prohibitions enacted into law. All of the states enacted laws prohibiting physicians from performing abortions.
