The Criminalization of Abortion in the West: Its Origins in Medieval Law

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of "crime" in the modern sense of the word, which distinguished the term sharply from "sin" and "tort" and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Muller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Muller's book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

Introduction Chapter 1. The Earliest Proponents of Criminalization
The Scholastic Origins of Criminal Abortion
Forms of Sentencing in Medieval Jurisprudence
Crimen in "An Age without Lawyers" (500-1050) Chapter 2. Early Venues of Criminalization
Crimen in Sacramental Confession
Judicial Crimen in the Ecclesiastical Courts
Public Penitential Crimen
Royal Jurisdiction in Thirteenth-Century England Chapter 3. Chief Agents of Criminalization
Legislation versus Juristic Communis Opinio
Communis Opinio and Peer Dissent
Systematic Law before the Rise of the Modern State Chapter 4. Principal Arguments in Favor of Criminalization
Successive Animation and Creatianism
Legal and Theological Assessments of Therapeutic Abortion
The Demise of Late Medieval Embryology Chapter 5. Objections to Criminalization
Customary Indifference North and East of the River Rhine
Rejection in the Royal Courts of England (1327-1557) 6. Abortion Experts and Expertise
Evidence of Midwifery
Medical Embryology and Abortion Discourse
Abortifacient Prescriptions Chapter 7. Abortion in the Criminal Courts of the Ius Commune
Criminal Accusationes and Inquisitiones
The Rules and Safeguards of Ordinary Inquisitiones
Extraordinary Inquisitiones Chapter 8. Forms of Punishment in the Criminal Courts of the Ius Commune
Statutory and Customary Specifications
Substitute Penalties
Adjustment Out of Court Chapter 9. The Frequency of Criminal Prosecutions
Viable Statistical Queries
Geography and Patterns of Record Keeping
A Triad of Typical Cases Bibliography
Index