Appealing to an ancient legal tradition to bolster one’s argument is a very medieval way of thinking about the law. Medieval jurists likewise scoured ancient legal texts seeking authority and insight. And like Justice Samuel Alito’s draft opinion in Dobbs, they sometimes read their ancient sources selectively and shorn of context.[1] Unlike Alito’s draft opinion, though, they often appreciated and preserved the conflicts and ambiguities they found in their sources.
The difficulty with the claim that “abortion was a crime” in the thirteenth century is that in the thirteenth century, and well beyond, neither the term “abortion” nor “crime” meant what Alito wants them to mean. When medieval authors defined the term “aborsus” with any clarity or consistency, their definitions bore little resemblance to the modern definition of abortion. In the medieval context, it meant the termination of a pregnancy only after what is known as “quickening.” This referred to when the mother could feel the fetus move, somewhere between 18 and 25 weeks. In theological, medical, and legal contexts, medieval writers saw this moment of “animation,” “ensoulment”, or “quickening” as a key stage in the development of pregnancy. This “quickening” implied the appearance of a human soul and thus, at this moment only, the potential beginning of human life. Ecclesiastical law incorporated these ideas, particularly in the mid-twelfth century, and they remained at the core of defining the possible legal consequences for harm done to the pregnant woman as well as to the fetus.[2] This also informed secular law. For example, Bracton’s treatise, cited in the draft decision, deems abortion homicide only when the fetus is “already formed and animated.”[3]
The word crime harbored important ambiguities as well. For medieval jurists and theologians the Latin “crimen” meant something more akin to sin. Medieval English lawyers used a different word for what we mean today by crime. They used the word “felony.” The difficulty this poses for Alito’s marshalling of the evidence is that there is no tradition, deeply rooted or otherwise, of prosecuting post-quickening abortions as felonies at common law in the medieval period. Penalties for women who terminated their pregnancies post-quickening are spelled out most clearly in medieval penitential manuals, where the offense is treated as a sin to be absolved through penance. And even here it is clear that the underlying sin is the fornication that resulted in pregnancy. Penances imposed for abortions pre-quickening were minor, as they were even for post-quickening abortions for poor women. Some manuals imposed no penance at all on poor women who aborted. More severe penances were reserved for abortions or for neonaticide motived by an effort to conceal fornication or adultery.[4]
“The main crime medieval English lawyers might have seen in this modern opinion, therefore, is a failure to consider the health and safety of the mother of paramount importance.”
-Pardon, Shoemaker & McDougall
Ivo of Chartres, for example, included these ideas in his collection of canons, but as so often with medieval canon law, the overarching principle he urged was that those passing judgment prefer mercy over rigor.[5] Up to seven years of penance, applied with or without mercy by the confessor, these penitential practices would have constituted at least some of the “English cases” to which the first part of the sentence refers, and it is worth noting that this penitential discipline only applied to Christians. It is worth noting as well that the medieval doctrine of quickening survived in Catholic theology until 1869, when, for the first time, Pope Pius IX proclaimed that life began at conception.[6]
To return to the thirteenth century, there is one kind of case in which Common Law courts did demonstrate an interest: assaults on pregnant women that resulted in miscarriage. Quickening was important in these cases because it determined whether such cases constituted a homicide and would be treated as a felony. To suggest, then, that there is a consistent and continuous line of cases establishing that abortion was a crime in our modern sense is either incredibly bad history or simply dishonest.[7]
Alluding to a continuous tradition stretching from the thirteenth century assumes too many commonalities between medieval discussions on the legality of abortion and our own, in terms of the relationship between religious and secular law and in terms of when someone could assume a life had begun. Most importantly though, it obscures how laws related to pregnancy termination primarily protected those who were pregnant, allowing them legal recourse for attacks whose main damage was to themselves as well as the fetus. The main crime medieval English lawyers might have seen in this modern opinion, therefore, is a failure to consider the health and safety of the mother of paramount importance. If the Supreme Court wants to look for any truly deeply rooted religious and secular legal ideas in medieval law that they might want to enforce today, we have other recommendations for them. Respecting the right to claim sanctuary, prohibiting excessive interest rates on loans, not executing mentally ill or disabled persons, regulating and protecting the rights of sex workers rather than outlawing sex work, and even allowing some nonbinary individuals to choose if they wanted to present as male or as female are all suggestions we would like to offer instead.
[1] SCOTUS Initial Draft, Contributed by Politico Staff, February 10, 2022, https://www.documentcloud.org/documents/21835435-scotus-initial-draft [accessed 6/6/2022]. See page 17 for the reference to the thirteenth century.
[2] Wolfgang Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law (Ithaca: Cornell University Press, (Ithaca, NY: Cornell University Press, 2012), 48-49.
[3] Henry de Bracton, De legibus et consuetudinibus Angliae, vol. 2, ed. Travers Twiss (London: Longman & Co., 1879), 279, cited in SCOTUS Initial Draft, 16.
[4] Regino of Prüm, De synodalibus causis, 2.62; Burchard of Worms, Decretum, 17.54; Ivo of Chartres, Decretum, ed. Martin Brett, 9.102-104, p. 37-38, online at https://ivo-of-chartres.github.io/decretum/ivodec_9.pdf
[5] Sara McDougall, “Pardoning Infanticide in Late Medieval France.” Law and History Review 39, no. 2 (2021): 229–53. doi:10.1017/S0738248020000267 at https://www.cambridge.org/core/journals/law-and-history-review/article/pardoning-infanticide-in-late-medieval-france/7B72FA57DB4AEC356C26EFD6F097D0B9
[6] Pius IX, “Apostolicae sedis,” Acta Pii IX, part 1, vol. 5 (Rome, 1871), 55-72.
[7] Müller, Criminalization 100–110.