In 1974 the Congressional Research Service of the Library of Congress prepared a brief summary of the judicial and legislative aspects of abortion control for members of Congress. A portion of this “issue brief” dealing with the pre-1967 period is printed below. DOCUMENT 1: An Overview of Judicial History and Legislative History. Congressional Research Service, Library of Congress, Issue Brief on AbortionThe moral and legal issues raised by the practice of abortion has tested the philosophers, theologians, and statesmen of every age since the dawn of civilization.
The Stoics’ belief that abortion should be allowed up to the moment of birth was vigorously opposed by the Pythagoreans who believed that the soul was infused into the body at conception and that to abort a fetus would be to commit murder. Early Roman law was silent as to abortion; and abortion and infanticide was common in Rome, especially among the upper classes. Opposition by scholars and the growing influence of the Christian religion brought about the first prohibition of abortion during the reign of Blank Robert H ( 193-211 A. D. ).
These laws made abortion a high criminal offense and subjected a woman who violated the provisions to banishment. During the European Middle Ages, major church theologians differentiated between an embryo informatus (prior to endowment of a soul) and an embryo formatus (after en- dowment with a soul). The distinction was used to assess punishments for abortion, fines being levied if abortion occurred before animation but death ordered if it [the fetus] was aborted at any time after.
The English common law adopted the doctrine of “quickening,” i. e., the first movement of the fetus in the mother’s womb, to pinpoint the time when abortion could incur sanctions. Generally, at common law, abortion performed before quickening was not an indictable offense. There is dispute whether abortion of a quick fetus was a felony. The predominant view is that abortion of a quick fetus was, at most, a minor offense. In the United States, the law in all but a few States until the mid-19th Century adopted the pre-existing English common law. Thus, no indictment would occur for aborting a fetus for a consenting female prior to quickening.
However, there could be an indictment afterward. Also, as was the case under the common law, a woman herself was not indictable for submitting to an abortion, or for aborting herself, before quickening. By the time of the Civil War, however, an influential anti-abortion movement began to affect legislation by inducing States to add to or revise their statutes in order to prohibit abortion at all stages of gestation. By 1910 every state had antiabortion laws, except Kentucky whose courts judicially declared abortions to be illegal.
In 1967, 49 of the States and the District of Columbia classified the crime of abortion as a felony. The concept of quickening was no longer used to determine criminal liability but was retained in some States to set the punishment. Non-therapeutic abortions were essentially unlawful. The States varied in their exceptions for therapeutic abortions. Forty-two States permitted abortions only if necessary to save the life of the mother. Other States allowed abortion to save a woman from “serious and permanent bodily injury” or [threats to] her “life and health.
” Three States allowed abortions that were not “unlawfully performed” or that were not “without lawful justification,” leaving interpretation of those standards to the courts. Source: U. S. Library of Congress, Congressional Research Service, “Abortion: Judicial and Legislative Control,” Issue Brief # 1B 74019, 1981. The Hippocratic OathOne of the earliest mentions of abortion is in the Hippocratic Oath, an oath taken by medical students when they receive their diplomas and become doctors. One phrase in the oath pledges the doctor not to give a woman the means to bring about an abortion.
Hippocrates, an ancient Greek physician who has been described as the Father of Medicine, probably lived sometime between 460 and 377 B. C. Arguing from the prohibition against abortion in the oath, opponents of abortion have concluded that, in Western civilization, abortion has always been considered wrongful. On the other hand, historians point out that abortion was a common practice in both ancient Greece and ancient Rome. Justice Harry Blackmun discussed the Hippocratic Oath in his opinion in Roe v. Wade ( 1973).
His conclusion was that there were a number of competing traditions in the ancient world, and the oath reflects the views of one sect, the Pythagoreans. The oath was an important statement of medical ethics, but its prohibition against abortion was not universally accepted. DOCUMENT 2: The Hippocratic Oath. Hippocrates of Cos, B. C. C. 460The regimen I adopt shall be for the benefit of my patients according to my ability and judgment, and not for their hurt or for any wrong. I will give no deadly drug to any, though it be asked of me, and I will counsel such, and especially I will not aid a woman to procure abortion.
Whatsoever house I enter, there will I go for the benefit of the sick, refraining from all wrong-doing or corruption, and especially from any act of seduction, of male or female, of bond or free. Whatever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets. Source: Encyclopaedia Britannica, 14th ed. , s. v. “Medicine, Custom of (Ancient Medicine),” p. 197.
THE COMMON LAWHistorians have also looked to the common law in an attempt to find whether or not our ancestors regarded abortion as a crime. The common law was the body of unwritten law that governed the behavior of men and women in England before the practice of having laws enacted by legislative bodies came into regular usage. The common law was the traditional law that formed the body of legal principles used by judges in deciding cases. It was derived from the traditions of the English people, from ancient legal writers, and from the Bible.
One of the best places to find it is in the decisions of courts and the explanations given by judges in deciding actual cases. From time to time, legal scholars attempted to collect these legal principles and reduce them to written form. One of the early compilations of the criminal law, as it was known in England, was William Hawkins’ A Treatise of the Pleas of the Crown, first published in 1738. American lawyers were familiar with this book and had it in their libraries. In his discussion of murder, Hawkins considered whether or not abortion should be seen as murder.
INFANTICIDE AS A MEANS OF POPULATION CONTROL (EUROPE, 1840-1880)Historian William Langer, in an article entitled “Europe’s Initial Population Explosion,” described the common practice of sending unwanted infants to “foundling hospitals” or sending them to the country to be nursed. Although these infants were not intentionally killed, there was a general expectation that few of them would survive the infectious diseases prevalent at the time. The practice of giving small children gin or laudanum (an opium derivative) to keep them quiet also had serious medical consequences.
DOCUMENT 3: Disguised Infanticide During Europe’s First Population Explosion. William Langer, 1963For Malthus “the whole train of common diseases and epidemics, wars, plague and famine” were all closely linked to “misery and vice” as positive checks to population growth. But misery and vice also included “extreme poverty, bad nursing of children, excesses of all kinds. “In this context it may be said that in Europe conditions of life among both the rural and urban lower classes–that is, of the vast majority of the population can rarely have been as bad as they were in the early nineteenth century.
Overworked, atrociously housed, undernourished, disease-ridden, the masses lived in a misery that defies the modern imagination. This situation in itself should have drastically influenced the population pattern, but two items in particular must have had a really significant bearing. First, drunkenness: this period must surely have been the golden age of inebriation, especially in the northern countries. The per capita consumption of spirits, on the increase since the sixteenth century, reached unprecedented figures.
In Sweden, perhaps the worst-afflicted country, it was estimated at ten gallons of branvin and akvavit per annum. Everywhere ginshops abounded. London alone counted 447 taverns and 8,659 ginshops in 1836, some of which at least were visited by as many as 5,000-6,000 men, women, and children in a single day. So grave was the problem of intemperance in 1830 that European rulers welcomed emissaries of the American temperance movement and gave full support to their efforts to organize the fight against the liquor menace.
To what extent drunkenness may have affected the life expectancy of its addicts, we can only conjecture. At the very least the excessive use of strong liquor is known to enhance susceptibility to respiratory infections and is often the determining factor in cirrhosis of the liver. Of even greater and more obvious bearing was what Malthus euphemistically called “bad nursing of children” and what in honesty must be termed disguised infanticide. It was certainly prevalent in the late eighteenth and nineteenth centuries and seems to have been constantly on the increase.
In the cities it was common practice to confide babies to old women nurses or caretakers. The least offense of these “Angelmakers,” as they were called in Berlin, was to give the children gin to keep them quiet. For the rest we have the following testimony from Benjamin Disraeli novel Sybil ( 1845), for which he drew on a large fund of sociological data: “Laudanum and treacle, administered in the shape of some popular elixir, affords these innocents a brief taste of the sweets of existence and, keeping them quiet, prepares them for the silence of their impending grave.
” “Infanticide,” he adds, “is practised as extensively and as legally in England as it is on the banks of the Ganges; a circumstance which apparently has not yet engaged the attention of the Society for the Propagation of the Gospel in Foreign Parts. “It was also customary in these years to send babies into the country to be nursed by peasant women. The well-to-do made their own arrangements, while the lower classes turned their offspring over to charitable nursing bureaus or left them at the foundling hospitals or orphanages that existed in all large cities.
Of the operation of these foundling hospitals a good deal is known, and from this knowledge it is possible to infer the fate of thousands of babies that were sent to the provinces for care. The middle and late eighteenth century was marked by a startling rise in the rate of illegitimacy, the reasons for which have little bearing on the present argument.
But so many of the unwanted babies were being abandoned, smothered, or otherwise disposed of that Napoleon in 1811 decreed that the foundling hospitals should be provided with a turntable device, so that babies could be left at these institutions without the parent being recognized or subjected to embarrassing questions. This convenient arrangement was imitated in many countries and was taken full advantage of by the mothers in question. In many cities the authorities complained that unmarried mothers from far and wide were coming to town to deposit their unwanted babies in the accommodating foundling hospitals.
The statistics show that of the thousands of children thus abandoned, more than half were the offspring of married couples. There is good reason to suppose that those in charge of these institutions did the best they could with what soon became an unmanageable problem. Very few of the children could be cared for in the hospitals themselves. The great majority was sent to peasant nurses in the provinces. In any case, most of these children died within a short time, either of malnutrition or neglect or from the long, rough journey to the country.
The figures for this traffic, available for many cities, are truly shocking. In all of France fully 127,507 children were abandoned in the year 1833. Anywhere from 20 to 30 per cent of all children born were left to their fate. The figures for Paris suggest that in the years 1817-1820 the “foundlings” comprised fully 36 per cent of all births. In some of the Italian hospitals the mortality (under one year of age) ran to 80 or 90 per cent. In Paris the Maison de la Couche reported that of 4,779 babies admitted in 1818, 2,370 died in the first three months and another 956 within the first year.
The operation of this system was well known at the time, though largely forgotten in the days of birth control. Many contemporaries denounced it as legalized infanticide, and one at least suggested that the foundling hospitals post a sign reading “Children killed at Government expense. ” Malthus himself, after visiting the hospitals at St.
Petersburg and Moscow, lavishly endowed by the imperial family and the aristocracy, could not refrain from speaking out:Considering the extraordinary mortality which occurs in these institutions, and the habits of licentiousness which they have an evident tendency to create, it may perhaps be truly said that, if a person wished to check population, and were not solicitous about the means, he could not propose a more effective measure than the establishment of a sufficient number of foundling hospitals, unlimited as to their reception of children.
In the light of the available data one is almost forced to admit that the proposal, seriously advanced at the time, that unwanted babies be painlessly asphyxiated in small gas chambers, was definitely humanitarian.
Certainly the entire problem of infanticide in the days before widespread practice of contraception deserves further attention and study. It was undoubtedly a major factor in holding down the population, strangely enough in the very period when the tide of population was so rapidly rising.
Source: William Langer, “Europe’s Initial Population Explosion,” American Historical Review 69, ( October 1963). Reference:Blank Robert H. (193-211 A. D. ). Mother and Fetus: Changing Notions of Maternal Responsibility. Westport, Conn. : Greenwood Press, 1892. Roe v. Wade, ed. Abortion: A Reference Handbook. Santa Barbara, Calif. : ABCClio, 1973.