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Abortion: Part VIII Paul V The Linacre Quarterly Volume 35 | Number 1 Article 14 February 1968 Abortion: Part VIII Paul V. Harrington Follow this and additional works at: http://epublications.marquette.edu/lnq Recommended Citation Harrington, Paul V. (1968) "Abortion: Part VIII," The Linacre Quarterly: Vol. 35 : No. 1 , Article 14. Available at: http://epublications.marquette.edu/lnq/vol35/iss1/14 Abortion -- Part VIII 1 RT. REv. MsGR. PAuL V. HARRINGTON, J.C.L. In accordance with the divine precept "Thou shalt not kill" the Catholic Church has always condemned murder and its kindred crimes against human life, even if that life be still hidden within the sattctuary of the mother's womb. Thus, from the earliest centuries the Church has. added severe penalties to her condemnations of the crime of abortion­ the nefarious procedure of expelling from the womb of the · mother a child still incapable of extra-uterine existence. The censure and the irregularity man who struck a pregnant woman ... "I , • for abortion as known today did not and the amount of the fine was '•-·. come into existence until the six­ determined by the social status of .. ..... ·. ·, o , # I teenth and the thirteenth centuries the woman. If she were of the " . ~ !.' respectively. Abortion, however, highest class and if she were to • ~ :• I was penalized before those times. die because of the injury, the "The Church has always held daughter of the . man was subject in regard to the morality of abor­ to death. In the Assyrian Code (C. tion that it is a serious sin to destroy 1500 B. C .) , the fetus is referred a fetus at any stage of development. to as a human life and a man; who However, as a juridicol norm in caused an ·abortion by striking a the determination of penalties woman, could be fined, lashed or against abortion, the Church at held for public service. A woman various times did accept the dis­ who deliberately caused an · abor­ tinction between a formed and a tion to herself could be subject to non-formed, an animated and a a penalty of crucifixion and .impal­ non-animated fetus." (Preliminary ing. In the Hittite Code (C. 1300 note) B. C.), in the event of an abortion, I there was provision for a fine to be ANCIENT LAWS determined in accordance with the The J>re-Christian Ancient Laws social status of the mother and the prescribed penalties for abortion. degree of development of the fetus. Among the Oriental laws, the Su­ The legislation in the Vendidad of merian Code (C. 2000 B. C.) con­ ancient Persia (no older than 600 tains the most ancient penalty B. C.) warned a pregnant woman which was a fine levied against any­ one who deliberately or accidentally not to terminate a pregnancy but, struck a woman, thus causing her if she did, both she and the infant's to lose the unborn child. The Code father would be charged with de­ of Hammurabi (C. 1800 B. C.) liberate murder and subject to a insisted on a fine being paid by the fine or flogging. The person who 1This article is a summary of a doctoral dissertation: "The Crime of Abortion in Canon Law" by Rev. Roger J. Huser, O.F.M., J.C.D. Catholic University of America Press, Washington, D.C., 1942. FEBRUARY 43 provided the drugs was als·o con­ ered . the formed fetus and u orn sidered to be guilty. child to be a human being. The Jewish law, accordi; to In the Greek collection of laws, the Alexandrian School, h e1c: hat there is no specific statute against voluntary abortion of a dev{ ,Jed abortion but there is indirect evi­ fetus was murder since the L ·· of dence in the 9th and ·6th centuries, a human being was sacrifice· In B. C. that abortion was forbidden accordance with the Pales' .ian and penalized. The Greeks were School of Jewish law, wh~d fol­ the first to ad vise abortion and Hip­ lowed the Hebrew text ol the pocrates, while he advised against Scriptures, . abortion was not on­ making abortion drugs available to sidered to be murder. The T <l llld expectant women, did indicate how looked upon the fetus as p< of an abortion could be effected. Plato the mother. advised that the law require an abortion for a woman who con­ It is significant to note th<. · the ceived after forty years of age. Septuagint or Greek text, ' iich Aristotle would allow for abortion considered abortion to be m ~ ler, in order to control the number of was the one used in cvangt · ing children but insisted that the abor­ the Roman world and this ace mts tion be accomplished before sen­ in great measure for the subse{ ,cnt sation and life were present-and moral teachings on this subjc this was verified on the fortieth Roman law, with respect to ) Of· day after conception for the male tion, differed from one peri < to child and on the ninetieth day after another. In the earliest histo of conception for the female child. the l\1onarchy, a husband " ·· al­ lowed to divorce his wife i I she As to the Jewish laws, there is had deliberately secured an 10r­ a different penalty depending upon tion. Abortion as a crime wa· not which text of the Scriptures is punished during the Republ1 or .. used. The citation is the Booh of Empire. Urider the Carnelian aw, Exodus, chapter 21, verses. 22-23. abortion was prosecuted bel ' USC The Vulgate text speaks of an ac­ dangerous medicines and <. ugs cidental abortion and states that if were used. The mother was not ·,., a person struck a pregnant woman charged with any offense but l wsc and caused her to suffer an abor­ who made or sold the drugs Ol ad­ .... tion, a fine was levied and, if the ministered them would be li ab ;· ' to mother died, the guilty person was prosecution. lf the mothet- l.~ e d, condemned to death. In the Sep­ the death penalty "as in ~ ,., te d tuagint version, compensation was upon. In the second century of the to be paid if the aborted fetus was Christian . era, abortion was con­ unformed but the death penalty sidered a separate crime and a .. was to be imposed if the fetus was woman who deliberately sough t an formed. The Septuagint text, rely­ abortion would be exiled fo r de­ ing on the Greek, clearly consid- priving her husband . of children. 44 LINACRE QuARTERLY Under the Roman law, the un­ Pseudo-Barnabas Epistle (before born was not considered to be a 132 A.D.) and in the Canones human being because the human Ecclesiastici SS. Apostolorum (C. soul was infused only at the time 300 A.D.). The Apostolic Cousti­ of birth. The fetus was thought to tutions (C. 400 A.D.), while re­ be part of the mother and a poten­ peating the previous directive, all tial person. Even though this were add that the formed fetus possesses the belief, the interference with a a soul and it would be murder to pregnancy was punishable because dispose of it. the father's rights were violated, there "';as danger to the mother, In the East, Athenagoras stated there was bad example or there was about 177 A.D. that the Christians believed that women, who resorted •., a denial of the State's right to chil­ 'I , • dren. The penalty was either con­ to abortion, were guilty of homi­ demnation to the mines, temporary cide. In the \Vest, Tertullian, who or permanent exile or partial for­ died about the vear 240 A.D., feiture of possess_ion_s. However, if termed deliberate , abortion murder the mother succumbed, the death and, since murder is forbidden, it penalty was denianded. is sinful to destrov the human be­ ing that is growing in the mother's II womb. He believed that a fetus became a person only after a cer­ EARLY CHRISTIAN WRfTERS AND tain stage in its development had CONCILIAR LEGISLATION been reached and the destroying . Huser introdues this chapter by of the fetus would be called murder saying: "At its inception Christian­ after sufficient grmvth had been ity encountered a widespread prac­ realized. l\1inucius Felix, who died tice of deliberate abortion, and con­ in the third century A.D. and St. fronted its pagan contemporaries Cyprian, who died in 25 8 A.D. with the novel moral viewpoint claimed that parents, who procure that abortion was a serious sin and an abortion, are guilty of parricide. a heinous crime. Abortion was Hippolytus, who died about 2 3 5 classed by the Church as murder, A.D. considered the intentional because abortion effected the death killing of the unborn child to be of a human person, albeit unborn. murder. In opposition to the Roman law position that abortion Yiolated the These statements, by early Chris­ rights of others (especially of the tian Fathers, made it possible for ., father), the Church condemned the Councils of the Fourth Century abortion as a violation of the rights to condemn abortion as murder and of the unborn." · . to inflict severe penalties for its commission. The Didache ( 80-100, A.D.) tersely commands "Thou shalt not The Council of Elvira in Spain kill the fetus by an abortion." This was held about the year 300 A.D. same prohibition is found in the Canon 63 states that, if a woman . FEBRUARY 45 conceived as the result of an adul­ It must be noted that the le s ~ n­ terous union and killed the product ing of the penance is not to b e n­ of this conception, she was to be terpreted as indicating that 1 e punished by being ·denied Com­ crime of abortion 'vas considc ed munion throughout her lifetime to be less serious but rather · ·, •at and even on her death-bed.
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