2 minute read


Classical Attitudes And Canon Law

Attitudes towards abortion have varied over time and across cultures. In the ancient world, it was widely practiced, for a number of reasons, as was infanticide. Roman law punished the wife who induced an abortion in order to thwart her husband or conceal an adultery; the harm lay not in killing the child but in depriving the husband of his right to decide whether or not to do so. Plato and Aristotle regarded both abortion and infanticide as forms of population control. Aristotle suggested that, "when local custom does not allow exposing infants for the purpose of keeping down numbers, the proper thing to do is to limit family size, and if a child is conceived in excess of the limit set, to induce an abortion before it develops sensation and life: since whether abortion is right or not will depend on whether sensation and life have begun" (Politics 7.16, 1335b). This statement presupposes the common premodern belief that a fetus does not begin to live until some time after conception. The exact time was controversial. Aristotle himself put it at roughly forty days after conception for a male fetus, ninety days after for a female. A later Roman view took these two periods to be forty and eighty days, respectively. Until then the fetus was thought to be an inanimate, inert part of the pregnant woman's body; its destruction could not be homicide. And even after "animation," prevailing opinion in Greco-Roman times permitted abortion, as it permitted infanticide after birth.

The Christian church, practically from the start, opposed both abortion and infanticide, on the ground of the sanctity of human life; in the case of abortion, association with sexual licentiousness provided a further reason for condemnation. But in determining when the soul enters the body, so as to make abortion homicide, early theologians were influenced by classical views regarding animation. A distinction was drawn between (1) abortion involving an inanimate or "unformed" fetus, which was regarded, like contraception, as an act that prevented a life from coming into being; and (2) abortion involving an animate, "formed," or "vivified" fetus, which amounted to the taking of a life that already had come into being. While not everyone accepted this distinction, it was incorporated into medieval law, both canon and civil law. There was considerable uncertainty, however, as to when animation or "ensoulment" took place. Gradually, between the fourteenth and sixteenth centuries, canon lawyers fixed the moment, as in Roman times, at forty days after conception for a male fetus, eighty days after for a female. This view was challenged in the seventeenth and eighteenth centuries, as Aristotelian biology began to fall into discredit. But only in the nineteenth century (just as secular laws on abortion were becoming more restrictive as well) did the Church definitively adopt the position that all abortion, at any stage of fetal development, should be treated as homicide.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawAbortion - Classical Attitudes And Canon Law, Abortion In English Law, Abortion In American Law: The Nineteenth Century