Abortion Law History - What the Pro-Abortion Side Doesn't Want Known
by Col. John Eidsmoe
Myth: Abortion laws were of rather recent origin, and were adopted to protect women from dangerous surgery, not to protect unborn children.
Reality: Throughout almost all stages of history in nations influenced by Christianity, and in other nations as well, abortion has been strongly condemned by the religious and political leadership of these nations.
In early American history, states usually did not pass criminal statutes; rather, they relied upon the body of common law that our Founding Fathers brought to us from England.
It is true that, at least in some periods, the common law made abortion a crime only after quickening, that is, after the mother could feel the child move in the womb. Sir William Blackstone called abortion after quickening “a very heinous misdemeanor,” and we should note that at that time any noncapital crime was considered a misdemeanor. However, this does not mean the common law considered the life of the unborn child unworthy of protection before quickening. Rather the reason had to do with proving the elements of a crime. Let me explain what I mean:
Suppose John resolves to kill Mary as she sleeps in her bed, so he enters her bedroom and fires three shots into her back. Unbeknown to John, however, Mary was already dead; she had died three hours earlier of a heart attack. Is John guilty of murder? No; under the common law, one cannot murder a person who is already dead. To convict John of murder, the prosecutor had to prove that Mary was alive at the time John fired the shots into her back.
Now let’s transfer that principle to the abortion situation. To convict a person of killing an unborn child by abortion, the prosecution had to prove that the unborn child was alive at the time of the abortion. And given the state of medical technology at the time the common law was developed, it was virtually impossible to prove beyond a reasonable doubt that the unborn child was alive, or even that the mother was pregnant, until the mother could feel the child move within her.
During the 1800s, advanced medical knowledge enabled the doctors to determine the child was alive prior to quickening. In 1859 the American Medical Association unanimously adopted the AMA Report on Criminal Abortion. The report condemned abortion and stated one reason abortions took place was “wide-spread popular ignorance of the true character of the crime—a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.” Another reason, the Report stated, was the “grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being.” The Report continued, “With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.” Abortion, it stated, was “no simple offence against public morality and decency, no mere misdemeanor, no attempt upon the life of the mother, but the wanton and murderous destruction of her child.” Declaring that “physicians have long been united in condemning the act of producing abortion, at every period of gestation, except as necessary for preserving the life of either mother or child,” the AMA Report called upon state legislatures to make abortion at all stages of gestation a criminal offense.
In response, during the 1860s many state legislatures adopted laws that made abortion a criminal offense at any stage of pregnancy, except when necessary to save the life of the mother or child. And the strained explanation that these laws were passed to protect mothers from dangerous surgery, just doesn’t make sense. All surgery was dangerous in those days; but we don’t see the passage of laws prohibiting appendectomies or tonsillectomies. And Iowa’s 1868 abortion statute was titled “An Act to Prohibit Foeticide,” that is, the act to prohibit the killing of a fetus. Courts have regularly held that the title of a statute is evidence of its purpose, meaning, and construction.
The lesson of history is clear: The common law has never recognized a right to abortion. Quite the contrary, the common law criminalized abortion after quickening, and the prohibition was extended to babies before quickening as soon as the technology was available to prove to a court that the pre-quickened baby was alive. - From “LifeDate” magazine, Summer 2009, published by “Lutherans For Life.”
Myth: Abortion laws were of rather recent origin, and were adopted to protect women from dangerous surgery, not to protect unborn children.
Reality: Throughout almost all stages of history in nations influenced by Christianity, and in other nations as well, abortion has been strongly condemned by the religious and political leadership of these nations.
In early American history, states usually did not pass criminal statutes; rather, they relied upon the body of common law that our Founding Fathers brought to us from England.
It is true that, at least in some periods, the common law made abortion a crime only after quickening, that is, after the mother could feel the child move in the womb. Sir William Blackstone called abortion after quickening “a very heinous misdemeanor,” and we should note that at that time any noncapital crime was considered a misdemeanor. However, this does not mean the common law considered the life of the unborn child unworthy of protection before quickening. Rather the reason had to do with proving the elements of a crime. Let me explain what I mean:
Suppose John resolves to kill Mary as she sleeps in her bed, so he enters her bedroom and fires three shots into her back. Unbeknown to John, however, Mary was already dead; she had died three hours earlier of a heart attack. Is John guilty of murder? No; under the common law, one cannot murder a person who is already dead. To convict John of murder, the prosecutor had to prove that Mary was alive at the time John fired the shots into her back.
Now let’s transfer that principle to the abortion situation. To convict a person of killing an unborn child by abortion, the prosecution had to prove that the unborn child was alive at the time of the abortion. And given the state of medical technology at the time the common law was developed, it was virtually impossible to prove beyond a reasonable doubt that the unborn child was alive, or even that the mother was pregnant, until the mother could feel the child move within her.
During the 1800s, advanced medical knowledge enabled the doctors to determine the child was alive prior to quickening. In 1859 the American Medical Association unanimously adopted the AMA Report on Criminal Abortion. The report condemned abortion and stated one reason abortions took place was “wide-spread popular ignorance of the true character of the crime—a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.” Another reason, the Report stated, was the “grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being.” The Report continued, “With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.” Abortion, it stated, was “no simple offence against public morality and decency, no mere misdemeanor, no attempt upon the life of the mother, but the wanton and murderous destruction of her child.” Declaring that “physicians have long been united in condemning the act of producing abortion, at every period of gestation, except as necessary for preserving the life of either mother or child,” the AMA Report called upon state legislatures to make abortion at all stages of gestation a criminal offense.
In response, during the 1860s many state legislatures adopted laws that made abortion a criminal offense at any stage of pregnancy, except when necessary to save the life of the mother or child. And the strained explanation that these laws were passed to protect mothers from dangerous surgery, just doesn’t make sense. All surgery was dangerous in those days; but we don’t see the passage of laws prohibiting appendectomies or tonsillectomies. And Iowa’s 1868 abortion statute was titled “An Act to Prohibit Foeticide,” that is, the act to prohibit the killing of a fetus. Courts have regularly held that the title of a statute is evidence of its purpose, meaning, and construction.
The lesson of history is clear: The common law has never recognized a right to abortion. Quite the contrary, the common law criminalized abortion after quickening, and the prohibition was extended to babies before quickening as soon as the technology was available to prove to a court that the pre-quickened baby was alive. - From “LifeDate” magazine, Summer 2009, published by “Lutherans For Life.”
posted by Al @ 12:08 AM
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