Abortion Questions and Answers by Jack Wilke, Chapter 4

back to the abortion files                      Back to Medical page

Way Back When

In the ancient world, abortion was not common, but infanticide was widely practiced.

Why was this so?
Because abortion was so often fatal to the mother. The only methods known then were two: One method was to give certain poisons to the mother and hope the unborn child would die; often the mother also died. The other method was to physically abuse the mother's abdomen to induce abortion, which sometimes fatally injured her.

And so?
Almost universally, the child was delivered and then killed if unwanted. Abortion was rare; infanticide was common.

What were the laws?
The early Christian church was very positive (see chapter 22). While its Fathers argued about whether the body was formed or unformed, the existence of the soul, etc., they completely condemned abortion and infanticide. Penalty for the sin of abortion ranged up to and beyond seven years of public penance.
J. Connery, "Abortion, the Development of the Roman Catholic Perspective" Chicago: Loyola University Press, 1977, pp. 65-87

These penances were more stringent for abortion after quickening (then defined as after being formed), for most thought life didn't begin until after quickening.

What is quickening?
Originally, it meant "when formed," for this was when the soul was presumably created. Later, it came to mean when the mother "felt life" (its present meaning).

As ecclesiastical law gave way to civil law, English common law, as well as those in other nations, also condemned all abortion, but only as a misdemeanor before quickening, a felony after. This was because scientists "knew" that the baby was not yet alive before that time. After quickening, or when the mother "felt life," it was "known" that life was present and severe punishments were inflicted for late abortions. When "life came to the child," the child "came alive"; when the mother "felt life" or "felt the baby kick," then that life was given the fullest protection of the law.

When did they think that human life began?
In primitive times, there were many theories of how human life began and grew. Most scientists "knew" that the man planted the total new being in the nutrient womb of his wife's body. From this came the agrarian terms of "planting the seed," "fertile," "barren," etc.

When microscopes were developed, sperm were discovered (by Hamm in 1677). They were seen to be tadpole-like objects and not at all "little men." Even so, the books of those years show drawings of a little man curled up in the sperm's head, for they "knew" he was there. This was called a "Homunculus."

As the power of microscopes increased, it slowly became evident that there must be another explanation of life's beginnings. Perhaps the woman contributed something to this new being?

But few abortionists were punished. Why not?
In order to prove the crime of abortion, one must (a) prove that the woman was pregnant and (b) prove that this action killed the baby.

Until recent times, the only absolute proof of pregnancy was to feel fetal movement and/or to hear the fetal heart, which was at four to five months. After abortion, the only proof of pregnancy was to produce the baby's body -- the corpus delicti. These were seldom available as evidence. Because of the inability to prove that an early pregnancy in fact existed, the crime usually couldn't be proven.
J. Dellapenna, The History of Abortion, Technology, Morality, and Law, "University of Pittsburgh Law Review," 1979

But abortions were common in the 19th century!
"Sometime after 1750, a new technique for inducing abortion was introduced. [It was a] major technological innovation," which involved inserting objects through the cervix into the uterus to initiate the abortion. It, too, had major risks to the mother, but was so much safer than the older, more lethal methods that it replaced them, and infanticide became rare. ibid.

Abortions did increase in the 19th century then? Yes, many fold. In fact, they became very common.
J. Mohr, "Abortion in America," Oxford University Press, 1978

Then in 1827, Karl Ernst von Boar, in a scientific journal, postulated that both man and woman contribute to a process called conception. His was the first accurate description of the process of conception. This was observed in a rabbit in 1843 by Martin Berry, but not actually seen in a human until many years later.

By the 1850s the scientific and medical world came to fully accept the fact that the man and woman each contributed half to the creation of the new human being. This event was called conception or fertilization, and this stimulated the anti-abortion action of the doctors.

There was an anti-abortion movement then?
While abortions induced through the vagina became common, medical communities throughout the world, were, at the same time, becoming aware of the newly discovered scientific fact that human life began at fertilization. In response to this the British Parliament passed the "Offences Against the Person Act" in 1869, dropping the felony punishment back to conception. It was during the same years that members of the American Medical Association went to the state legislatures to testify and inform them of this scientific fact.

"In 1859 the AMA protested that the quickening distinction allowed the fetus rights 'for civil purposes [but as] to its life as yet denies all protection.' They protested against this 'unwarrantable destruction of human life,' calling upon state legislatures to revise their abortion laws and requesting the state medical societies 'in pressing the subject.'"
Roe vs. Wade,
U.S. Supreme Court, VI, 6, p. 26, 1973

By 1871 the AMA report had summed up abortion:IT "we had to deal with human life." As different state and national lawmakers were taught the newly discovered scientific fact that human life didn't begin at quickening but rather at conception, the laws were changed. One by one, each ruled that human life should be equally and fully protected by law, not from the time of quickening, but from its actual beginning at conception.

When were the new laws passed in the U.S.?
Originally, the U.S. colonies, and then the states operated under English Common Law. Connecticut passed the first separate state law in 1821. By 1860, 85% of the population lived in states which had clearly prohibited abortion with new laws.
J. Dellapenna, The History of Abortion, Technology, Morality, and Law, "University of Pittsburgh Law Review," 1979

Quay, "Justifiable Abortion-Medical and Legal Foundations, 49 Georgetown Univ. Law Review, 1960-1961

Besides clearly forbidding abortion, these laws and those passed after the Civil War moved the felony punishment from quickening back to conception. This was done primarily to protect new human life.

Pro-abortion people claim that there were other more important reasons.

Cyril Means, a law professor and legal counsel for the National Association for the Repeal of Abortion Laws in the U.S., wrote two works which suggested that the laws were passed to protect the health of the mother. (All other surgery was dangerous, too, but no other surgery was forbidden.)
C. Means, "The Law of New York and Abortion and Status of Foetus," 14 NYLF, 1968, p. 411

C. Means, "The Phoenix of American
Freedom," 17 NYLF, 1971, p. 335

Justice Blackman, in writing the Roe vs. Wade Supreme Court decision, cited Means four times in an echo of his thinking. This version of the history of abortion evoked scathing criticism.
R. Byrn, "An American Tragedy," 41 Fordham Law Review, p. 807, pp. 814-839, 1973

To counter this, the Ford and Rockefeller foundations funded a major study by James Mohr, whose book, "Abortion in America" (Oxford Univ. Press, 1978), was a more sophisticated version of the same thesis. Mohr's historical study reported events only from 1800, ignored the past, and added other reasons. These included concern over the declining WASP (White Anglo-Saxon Protestant) birth rate, and the concern of the doctor-members of the AMA over competition from other medical practitioners.

Weren't these valid reasons?
Professor Joseph Dellapenna and others have almost totally discredited these attempts to rewrite history. The main reason was clearly that lawmakers wanted to protect human life from its biologic beginning.
J. Dellapenna, "Abortion and the Law, Blackman's Distortion of the Historical Record," p. 137 in Abortion and the Constitution, Horan et al., Georgetown U. Press, 1987.

J. Dellapenna, The History of Abortion, Technology, Morality, and Law, "University of Pittsburgh Law Review," pp. 359-428, 1979

Were women punished?
The definitive study on this gives the lie to Planned Parenthood's ads which claimed: "If you had a miscarriage you could be prosecuted for murder."
Washington Post April 27, 1981

Studying two hundred years of legal history, the American Center for Bioethics concluded:

"No evidence was found to support the proposition that women were prosecuted for undergoing or soliciting abortions. The charge that spontaneous miscarriages could result in criminal prosecution is similarly insupportable. There are no documented instances of prosecution of such women for murder or for any other species of homicide; nor is there evidence that states that had provisions enabling them to prosecute women for procuring abortions ever applied those laws. The vast majority of the courts were reluctant to implicate women, even in a secondary fashion, through complicity and conspiracy charges. Even in those rare instances where an abortionist persuaded the court to recognize the woman as his accomplice, charges were not filed against her. In short, women were not prosecuted for abortions. Abortionists were. The charges of Planned Parenthood and other "pro-choice" proponents are without factual basis. Given the American legal system's reliance on precedent, it is unlikely that enforcement of future criminal sanctions on abortion would deviate substantially from past enforcement patterns."
Women and Abortion, Prospects of Criminal Charges Monograph, American Center for Bioethics, 422 C St., NE, Washington, DC 20002, Spring 1983

Under a law or a Constitutional Amendment that forbids an abortion, will women be punished?
We don't know of a single pro-life or pro-abortion leader, or church leader, or congressman, or member of Parliament in any nation, who would want this. The mother is the second victim; she needs help and love -- not punishment. No, women would not be punished. Would the abortionist? Yes, he or she is the killer who took money and did the abortion.

The abortionist deserves punishment and would, in all probability, be punished, as in years past.