Was abortion always murder?

2 posts

Bob Dylan Roof

In skimming through the Anglo-American legal history of abortion and feticide, I have come to the conclusion that the killing of an unborn child has only recently become the object of severe opprobrium.

The 13th century jurist Henry de Bracton wrote,

If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide​

A fetus is "quickened" when it begins to move in the womb, which means that this law applied only to more mature fetuses. Moreover, according to the 18th century jurist William Blackstone, the ancient law of homicide to which Bracton refers was equivalent to our manslaughter, and not murder.

From Bracton to Edward Coke, the common law seems to have relaxed even these restrictions, adopting instead the Born Alive Rule, which still applies in a minority of the United States.

In Edward Coke's Institutes (1628), the good jurist states the rule:

If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is great misprision, and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.​

The classification of feticide as misdemeanor likely goes back much further than this given the use of classical philosophical concepts like "in rerum natura."

Thus it seems that the modern anti-abortion movement is, insofar as it classifies abortion as murder, at variance not only with the legal tradition, but also with portions of the orthodox/catholic and protestant traditions.
I'd agree with you if I saw some historical examples of this. Nevertheless, it wouldn't surprise me.