Many people have the impression that the Judeo-Christian position on abortion has always been as conservative as the current prolife movement. In his book Whatever Happened to the Human Race? Francis Schaeffer implies that abortion was an unthinkable practice in Christian countries before the 20th Century. The facts, however, are quite otherwise. In Christian England before the Norman conquest, the legal powers of a father followed the Roman tradition. A father could sell his own children as slaves if they were under seven years of age and he could lawfully kill any of his children "who had not yet tasted food."(1) Infanticide was widely practiced in all Christian countries until the 19th Century. The historian Lloyd de Mause quotes a priest in 1527 who said that "the latrines resound with the cries of children who have been plunged into them." (2) Criminal law of 17th Century France listed conditions under which a father had the right to kill his own children; and English midwives of the same period had to take an oath "not to destroy the child born of any woman."(3)I am not yet ready to say that I find Gier's thesis fully convincing, but he certainly creates room to doubt that fetal personhood is an inherent part of the Christian faith.
Historian Joseph Kett sums up this premodern view of the child: "Parents left their infants alone for long periods, seem to have been indifferent to their welfare, could not remember their names, refused to attend funerals of children under five, routinely farmed infants out for wet nursing, and argued in divorce proceedings, not over which parent should have the infant, but over which could send it packing." (4) We should remind ourselves that Kett is not talking about pagans here but church-going Christians.
We shall see that for Catholics the killing of an "unformed" fetus was not murder until a papal decree of 1869. Canon law on this point was not changed until 1917. But today leading Catholic philosophers and theologians disagree with this change. In Protestant countries the "forming" of the fetus was called "quickening," and abortions were permissible until that time. Even when stricter abortion laws went into effect in the 19th Century, very few cases of abortion of formed fetuses were ever prosecuted. Indeed, infanticide continued to be widely practiced, especially in the late 18th Century with the rise of the Industrial Revolution.
Furthermore, as Blackmun points out in his decision in Roe v. Wade,
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.Blackmun further explains:
[*130] 1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. n8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, n9 and that "it was resorted to without scruple." n10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. n11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion. n12
3. The common law. It is undisputed that at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy n20 -- was not an indictable offense. n21 The absence [*133] of a [**717] common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. n22 This was "mediate animation." Although [*134] Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
Evangelicals like Carter mean well. They have to recognize, though, that respected thinkers within the Christian tradition, as well as long-standing common law, provide support for the position that legal personhood does not begin at conception--so, even if fundamentally misguided, it's not an "extremist" view. Oversimplifying the issue benefits no one.