Dellapenna on Wills on abortion

I am posting the following on behalf of my Villanova Law colleague Joseph Dellapenna:

On October 3, Michael Perry posted on Mirror of Justice Martin Marty’s brief comment on the new book by Garry Wills entitled, Head and Heart: American Christianities. Marty raises a number of alleged inconsistencies in those who argue that an embryo or fetus is a person, raising arguments of a theological or philosophical nature. Marty also alludes to certain arguments that Wills derived from the historical treatment of abortion. I claim no special expertise regarding theology or philosophy, and I am not even a Catholic, so I will not attempt to address the theological or philosophical points that Marty found in Wills’ book. I have, however, written an exhaustive study of the history of abortion—Dispelling the Myths of Abortion History (Carolina Academic Press 2006)—and therefore feel qualified to raise certain points that derive from that history.

The central historical point in Marty’s comment is that “the subject of abortion is not scriptural, ‘it is not treated in the Ten Commandments, the Sermon on the Mount, or anywhere in the Jewish Scripture, the New Testament or the creeds and ecumenical councils.” He goes on to repeat that Thomas Aquinas followed Aristotle in concluding that a person arose (the soul was infused) when the fetus was fully formed at 40 days (for males) or 80 days (for females) after conception. This is hardly the entire story, to say the least.

It is true that the Bible says nothing about abortion, but then law generally said very little about abortion at the time the Bible was first written down. This was not because people thought abortion was unobjectionable, but because abortion was such a rare practice at the time  that few people said much about it at all, in any source. Those who did write about abortion, discussed it in a very abstract way, and often only as an afterthought to a more extended, and more concrete, discussion of some related offense—usually homicide, but sometimes as a crime against the mother. Tertullian, one of the leading Church fathers, for example, insisted that a fetus was a person from the moment of conception. Others, including St. Clement, Origen, and St. Augustine, followed Aristotle and the theory of mediate animation (“animation” in Latin refers to the infusion of a soul). But even these Church fathers condemned abortion before animation as a grave sin, but simply not as homicide. I discuss these points, with full references, in chapter 3 of my book.

Why this neglect of abortion in the ancient sources? The answer, which is mostly forgotten today, is that abortion until fairly well along into the nineteenth century was tantamount to suicide. Women rarely, if ever, underwent a voluntary abortion. We in fact have a significant number of legal cases from as far back as 1200 in England and even earlier in Roman law, in all of which the abortion was forced upon an unwilling woman. This simple fact is reason enough why the Bible and most other legal and religious sources from that time treated as an abstract, a hypothetical idea. I have elaborately documented the evidence for the techniques of abortion in chapter 1 of my book. The real social problem, which was addressed in detail and repeatedly in legal and religious sources, was infanticide—a social problem that only receded in importance with the development of abortion techniques in the late nineteenth and early twentieth century that were safe enough for women wanting to be rid of an unwanted child to be able to choose abortion in preference to infanticide. I describe  the evidence for the prevalence of infanticide in chapter 2 of my book.

Our “collective amnesia” about just how dangerous and rare abortion was underlies what I have termed the “new orthodoxy” of abortion history, linked to names like Angus McLaren, Cyril Means and James Mohr. The new orthodoxy holds that abortion was always a common practice and therefore must have been generally accepted before the enactment of the nineteenth century abortion statutes because it was so seldom condemned and was only prosecuted when the abortion was imposed upon a woman rather than sought by her. I discuss the enactment of the nineteenth century abortion statutes in chapters 5 to 9 of my book. Unfortunately, Marty and Wills seems to have bought into the new orthodoxy without seriously examining the relevant evidence. To conclude from the prevalent silence regarding abortion in the early texts that abortion was therefore not condemned when what little discussion there was unanimously condemned it, makes no more sense than would a conclusion that Christianity has nothing to say about negligently driving an automobile because the ancient texts say nothing about how one should drive a car. And, of course, there are innumerable other features of modern life that would be left open to similar arguments.