Past and Precedence: Abortion Law in the Middle Ages and Its Use to Overturn Roe v. Wade (Medieval Submission)
The complicated history of abortion laws in medieval England is no laughing matter.
By Jennifer E. Rizzo
On May 2, 2022, a draft opinion overturning Roe v. Wade was leaked and published by Politico. In the draft, U.S. Supreme Court (SCOTUS) Justice Samuel Alito used a thirteenth century English law as a precedent for the criminalization of abortion. The cast and crew of Saturday Night Live (SNL) wasted no time mocking the draft’s reference of legal practices from a time period known for its primitive hygienic, legal and social practices. The skit, aired May 7, 2022, was set 800 years ago at the moment three men created the law in question.
As with most SNL skits, this one was entertaining and clever, and it gave audiences a much needed laugh. But what were abortion laws really like in the Middle Ages, and did this thirteenth century law have any place in a SCOTUS opinion?
Beyond the absurdity of citing as legal precedent a foreign country’s 800-year-old canonical law, evidence suggests that the law in question may have been purely academic in its intent, was actually referring to a different crime than what is considered abortion in a modern sense, and was overturned in 1348.
In Alito’s opinion, he referenced Joseph Dellapenna’s 2006 book Dispelling the Myths of Abortion History as the source of the thirteenth century law criminalizing abortion. Prior to Dellapenna’s book, many legal scholars and historians believed the legal framework for outlawing abortion did not begin until the nineteenth century.
As Dellapenna writes in Dispelling the Myths, some laws and religious texts circulated in medieval times preached the evils and illegality of aborting a child. But what both Dellapenna and Alito ignore is the historic and cultural context within which these laws and texts were written, and the very limited extent to which they were enacted. Thirteenth century England’s society and political structure were radically different than today’s, and when examining laws from this time, scholars must question how much these laws actually affected everyday people’s lives.
Were medieval abortion laws actually enacted, or were they purely academic?
Medieval England was a feudal society. This means that everyone, except the king, was a tenant. He gave the liege lords under him land, and those lords gave lesser lords pieces of it. Those lesser lords gave peasants jobs, and maybe a tenancy as well. To an everyday person in a feudal society, the most important authority figure was their liege lord, not the king. Because of this, for most people, a law enacted by the central government didn’t matter much if it wasn’t enforced by their liege lord. In other words, just because one man in the capital wrote a law stating abortion was illegal, that doesn’t mean the liege lords throughout the land cared, enforced, or even knew about the law. Think of the North versus Kings Landing in Game of Thrones. If King Robert Baratheon said one thing, but Lord Eddard Stark disagreed, to whom do you think the Northmen would listen?
When considering abortion through an historic lens, it’s important to realize that, like today, opinions varied across society. The large shadow of religion cast by the Catholic church did not stop people from shaping their own opinions. Just like today, some people believed a mother had the right to make her own procreational choices, while others thought her first priority was to procreate and build a generation, as the apostle Paul decried in the Bible after Eve’s betrayal. For example, Lydia Harris writes in Old Ideas for a New Debate: Medieval and Modern Attitudes to Abortion that some High Medieval theologians, “while agreeing with these assertions, attempted to forgive some instances of fertility control, especially in the poorer classes, for fear of continual social instability and increased monetary pressure on the church to support these populations.” Harris goes on to detail how Peter of Spain (1205–1277), the physician and theologian believed to have later become Pope John XXI, gave detailed instructions in Thesaurus pauperum (Treasures of the Poor) for poor families to practice contraception and population control. In Peter’s view, controlling unwanted pregnancies was preferable to the rampant “child abandonment at the expense of the church.”
And of course, records about abortion and contraception were written by…you guessed it, men. And it is difficult to know if these men really knew what obstetric practices were really going on in their communities. In early history and well into the twentieth century, pregnancy and childbirth was largely “women’s business,” and men had virtually no inclusion in it. Judy Leavitt, medical historian and author of Make Room for Daddy: The Journey from Waiting Room to Birthing Room writes, “traditional childbirth was a really female event. The woman would call her friends and relatives together to help her, and they’d be all around the birthing bed. And there’d be a midwife.” Leavitt goes on to explain that men were not included in American delivery rooms until the 1970’s. And in medieval England, all women, including those of the nobility, did not even have a male doctor present for childbirth. Midwives were the ones who dealt with women’s needs, not male doctors. Most abortions were achieved using dangerous potions, the recipes for which can be routinely found in midwife instruction manuals and common household recipe books from the time. It is reasonable to assume that if women were performing abortions in medieval villages and cities, the men living with them may have had no idea.
Were medieval abortion laws referring to abortion by assault?
Medieval theologians wrote about two types of abortive acts. First, an abortion could be caused by the mother in order to end an unwanted pregnancy; but abortion could also be caused by an attack upon the mother. Officially, European authorities declared both of these activities illegal after a certain number of weeks’ gestation, as most European Christian cultures in the Middle Ages believed a human fetus didn’t obtain its soul at conception.
There are few medieval legal records prosecuting a woman for an abortion. There simply would not have been evidence in most cases. Most of the cases Dellapenna cites, and that Alito subsequently references in his SCOTUS opinion, are in reference to abortion by assault on a woman. According to Wolfgang P. Müller in The Criminilaziation of Abortion in the West: Its Origins in Medieval Law, the first recorded trial of a woman for the crime of self-inflicted abortion was in Venice in June 1490, and there was no record of such sentencing in France until the fifteenth century. The vast majority of historical records of abortions are for those caused by assault. According to Müller, “From 1200 to the early 1300’s, English common-law courts granted women aggrieved by the violent termination of their pregnancies the right to press felony charges against perpetrators. In one case of 1283 or 1284, proceedings even resulted in the convict’s execution by hanging, proving that summonses of this kind had to be taken seriously.”
However, if a pregnancy ended due to an attack upon the mother in early pregnancy, the assailant would not be found guilty of infanticide. In 1211, Pope Innocent III determined a monk who had caused a woman’s miscarriage after grabbing her “by the girdle,” could continue to serve in the church, because the woman’s child had not yet quickened. (Interestingly, the Pope neglected to give an opinion on the fact that the monk in question was reportedly the child’s father).
The medieval view of when a fetus obtained a soul was later than many in modern-day conservative American circles. As early as the twelfth century, the Italian legal scholar Gratian (died c. 1145), considered to be the father of medieval canon law, was the first to identify abortion as a crime. But Gratian did stipulate that ending a pregnancy was not a crime until the fetus acquired limbs. His fellow Bolognese legal expert Azo (fl. 1190) agreed with Gratian, and stipulated that this occurred 40 to 80 days after conception, depending upon whether the child was a boy or girl (insert eye roll).
Later in the medieval period, and throughout early modern times, the English commonly believed a fetus did not receive a soul until the mother felt it “quickening.” Quickening occurred when a mother felt her baby move for the first time, usually around 16 to 20 weeks gestation.
Did English abortion laws change in 1348?
In Alito’s opinion, he references thirteenth century cases condemning abortion in England, stating that this long, unbroken history of illegality means the procedure should be illegal today. But Alito failed to mention the evidence suggesting the English reversal of their legal stance in 1348.
According to Müller, during the reign of Edward III, while England was besieged with the Black Death, the government “radically redefined its position toward fetal existence…(by 1348) royal justices had concluded that babies did not possess human quality unless they had been born and were extant ‘in the nature of things (in rerum natura).’” This view was unique to England, and did not spread to other European nations.
As opposed to the Creationist Doctrine prevalent elsewhere in Europe, where theologians believed the formation of limbs or quickening spurred the formation of the soul, Müller writes, “English common lawyers came upon the Roman formula of in rerum natura and used it to strike fetal manslaughter from their list of felonies in 1348.” This view prevailed in England until the early 1600’s when, ecclesiastical jurisdiction in both England and Germany began to give way to lay authorities, due to the Protestant reformation. Starting around 1600, Protestant theologians began to abandon the idea that a fetus obtained a human soul only when it was born, and they began to believe a fetus got a soul at conception. These changes, combined with an increased centralization of government and modernization of communications, significantly increased conviction rates in England.
Conclusion
Saturday Night Live’s May 2022 skit did a great job mocking the absurdity of a thirteenth century canonical law’s inclusion in a SCOTUS opinion. But, (understandable, given that the show is a comedy) the writers left out the points previously outlined here: in the middle ages, any existent abortion restrictions were rarely enacted, many of the laws were actually referring to a different crime than abortion legislation today, and evidence exists to show that abortion restrictions in England were changed in 1348.
This argument proves that medieval history is not always clear-cut. But one thing historians do know is that women in the Middle Ages took contraceptive measures, and did attempt abortions. Much has changed since the thirteenth century, which is a good thing. One thing that hasn’t changed is that everyone needs a good laugh. So, when in doubt, watch SNL, and feel free to laugh about a 2022 Supreme Court Justice quoting a Christian church’s medieval law.
Works Cited
Alito, S. (2022). Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al. Majority Opinion (Ceritiorari to the United States Court of Appeals for the Fifth Circuit №19–1392). Supreme Court of the United States. https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Betancourt, R. (2020, June 11). Abortion and Contraception in the Middle Ages. Scientific American. https://www.scientificamerican.com/article/abortion-and-contraception-in-the-middle-ages/
Cale, J. (2017, August 7). Sex, Contraception and Abortion in Medieval England (Guest Post). Tudor Dynasty Podcast. https://tudorsdynasty.com/sex-contraception- abortion-medieval-england-guest-post/
Dellapenna, J. (2006). Dispelling the Myths of Abortion History (1st ed.). Carolina Academic Press.
Dunstan, G. R. (1984). The Moral Status of the Human Embryo: A Tradition Recalled. Journal of Medical Ethics, 10(1), 38–44. http://www.jstor.org/stable/27716225
Gerstein, J. and Ward, A. (2022, May 3). Supreme Court has voted to overturn abortion rights, draft opinion shows. Politico. https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
Harris, L. (2017). Old Ideas for a New Debate: Medieval and Modern Attitudes to Abortion. Medieval Feminist Forum: A Journal of Gender and Sexuality, 53(1), 131–149.
Leavitt, J.W. (2009). Make Way for Daddy: The Journey from Waiting Room to Birthing Room. The University of North Carolina Press.
Mistry, Z. (2015). Abortion in the Early Middle Ages, c.500–900 (NED-New edition). Boydell & Brewer. http://www.jstor.org/stable/10.7722/j.ctt13wzsp5
Müller, W.P. (2017) The Criminalization of Abortion in the West: Its Origins in Medieval Law. Cornell University Press.
Spivack, C. (2007). To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England, 14 Wm. & Mary J. Women & L. 107. https://scholarship.law.wm.edu/wmjowl/vol14/iss1/4
*This article is a submission for our Medieval Writing Challenge. Learn more here!
