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PaperclipPerfector  7d ago (text post)   20256 thread views

Culture War Roundup for the week of August 31, 2026

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Citation Needed on English common law allowing abortion for centuries (instead of just classifying it as something wrong but not yet murder), but I know that the stance of the Catholic Church is often misrepresented in these online fact checks.

Many people are surprised to learn that there was, in fact, a range of views among Catholic canonists at the time about the severity of very early abortion. On the strict end were those who held that very early abortion was, very simply, murder. On the lax end where those who held that intentional very early abortion was not quite murder. These laxists treated very early abortion as a severe crime that ought to be punished “as for murder” (canon Si aliquis), but argued that, technically, it wasn’t actually murder, and so didn’t need to punished identically to murder. In 1942, scholar John Huser described the “lax” position:

The Decretists, notably Rufinus and Bernard of Pavia, indicated that abortion of a non-formed fetus was considered quasi-homicide, that is, the penalties were similar to but not so severe as those for true homicide.

It would never even have occurred to any of these writers that some future hostile reader would attempt to interpret their words in that way as permitting very early abortion. Every one of these men taught that a single act of deliberate masturbation condemned a man to Hell unless the sin was repented.4 The very laxest view available in the 12th century was that very early abortion was a serious crime that wasn’t quite as bad as full-on murder… but it would still definitely send you to Hell!

As for England, a cursory search turns up:

Under the Offences Against the Person Act 1861 (Section 58), procuring an unlawful abortion was a criminal offense punishable by up to life imprisonment.

Before then, women were punished through religious penance for procuring an abortion. The Laws of Henry I prescribed three years of religious penance for procuring an abortion before quickening.

But that's a religious penance and not a punishment from the government? We have to consider that before industrialization, the tools available to the government were execution, corporeal punishment, and imprisonment in the case of someone wealthy enough to be worth it. It has been very unpopular to execute or beat women publicly, and proving an early abortion wasn't a miscarriage in a court of law would have been difficult. A religious confession to the crime, followed by a period of required penance, was the best means to punish something that was at the least highly frowned upon at the time.

We have enough evidence to show that abortion before quickening was not considered an unalloyed good like it is today.

Also I'd be shocked if I were to grab a pre-quickening advocate from that period, drag them into the twenty-first century and then explain that starvation is essentially a thing of the past and contraception is available but society still would like to make what would be essentially 'abortions of convenience' compared to the prevailing historical situation.

https://pmc.ncbi.nlm.nih.gov/articles/PMC487792/

https://studentbriefs.law.gwu.edu/crcl/2024/06/24/dobbs-v-history-part-one-english-common-law/

https://lawandhistoryreview.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/

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.

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