William & Mary Journal of Race, Gender, and Social Justice
Abstract
This article takes issue with claims made by Joseph Dellapenna in his 2006 book, Dispelling the Myths of Abortion History, which claims to correct the "distortions of the history" of abortion law underlying Roe v. Wade, 410 U.S. 113 (1973). Dellapenna argues that, contrary to Justice Blackmun's historic analysis in Roe, "abortion was considered a serious crime throughout most of European history" and that "courts did... punish abortions before quickening during the Middle Ages." This article shows that Dellapenna's argument relies on serious misreading of cases and ignorance of the relevant historical, medical, and cultural context, and that pre-quickening or intra-marital self-induced abortion was of little concern to the law.
First, the author describes the fear of social disorder that pervaded society at this time, and shows that contemporary thinkers traced this perceived disorder to women and illicit sex. Thus, their concerns with abortion were based on its providing a means to enable or conceal extra-marital sex, not on any condemnation of abortion per se. Next, the article discusses the contemporary medical context, and examines medical and midwife manuals to show that the early-stage fetus was not accorded full human status.
The article then turns to the legal context, reviewing abortion law from the time of the earliest Anglo-Saxon laws, and reviews specific cases, many of which are cited by Dellapenna. It shows that most of the cases he cites in support of the illegality of abortion are in fact tort cases brought by pregnant women against people who had assaulted them, causing the loss of a fetus in the process. These cases thus offerno evidence of the illegality of abortion. The article argues overall that the structure of the common law was not meant to capture incidents of intra-marital abortion. With respect to the Church courts, cases examined in detail in the article show the same tort characteristics or concern with illicit sex, as with the common law court cases.