Dobbs and Abortion in the European Middle Ages

A New Yorker article on abortion in the U.S. written prior to the Supreme Court’s Dobbs decision but anticipating its overthrow of Roe vs. Wade, quotes a gynecologist named Franz Theard as saying “I cannot believe that people who were born after ’73 are going back to the Middle Ages” (June 20, 2022, p. 21). Even before I read that, I had expected someone, somewhere, to make a medievalizing reference to describe a post-Roe America, given how often the European Middle Ages are used today to represent the “bad old days.” 

What surprised me was the actual medieval reference in Justice Alito’s opinion in Dobbs. In claiming that English common law treated abortion after “quickening” as a crime, he quotes “Henry de Bracton’s 13th-century treatise” as stating that if someone has “struck a pregnant woman, or given her poison, whereby he has caused abortion, if the foetus be formed and animated, and particularly if it be animated, he commits homicide” (p. 17). This reference to the Middle Ages clearly stood out to Justices Breyer, Sotomayor, and Kagan, as in their dissent they describe Alito’s historical survey of abortion laws as “going back as far as the 13th (the 13th!) century” and later refer to his opinion as checking our laws “against the Dark Ages” (pp. 13 and 15). However, I’ve seen little discussion of this part of the opinion outside of legal history circles (see this post from Law & History Review and this one from Legal History Miscellany) – other than a Saturday Night Live sketch that recycles multiple misconceptions about the medieval past (no one can read or write, everyone is dying of plague, a disruptive woman is called a witch and so on).

At the same time as this was happening in our public sphere, I was doing some reading on abortion in the Middle Ages for a conference talk. In this post, I want to bring that reading to the medieval reference in the Dobbs decision to see what happens when we put it into the context of medieval laws and other regulations around abortion. My sources here are Zubin Mistry’s Abortion in the Early Middle Ages, c. 500-900 and Wolfgang Müller’s The Criminalization of Abortion in the West: Its Origins in Medieval Law, which focuses on the later Middle Ages. However, the conclusions I draw based on these sources are my own. To clarify my position, I am a medievalist but not a lawyer or legal historian. And I am one of the approximately 24% of American women who has had an abortion and so am a stronger supporter of reproductive rights. 

I’m going to take Alito’s quote from Bracton one phrase at a time, because there is a lot packed into it. It first describes someone striking a pregnant person and so causing an abortion. Reading that, we probably imagine a scenario in which someone deliberately strikes another person in order to end their pregnancy – possibly even at the pregnant person’s request. And such things did happen: Müller cites a case from southern France in 1466 in which Jehanne Collette tried multiple ways to help her future sister-in-law, Katherine Armant, end a pregnancy that had started while her intended husband was away. She first tried beating Katherine with her fists but it didn’t work and they went on to try bleeding and various medications. However, this is probably not the scenario that was on Bracton’s mind because the main concern in English common law in the 13th century, when it came to the ending of a pregnancy, was with what Müller calls “miscarriage by assault.” This happened when there was some sort of violent incident, one of the people involved was pregnant, that person was injured, and as a result they lost the pregnancy. This part of the Bracton quote, then, is probably not about abortion as we understand it today at all. 

In 13th century England, cases of miscarriage by assault were treated as homicides and so as “crown pleas” and “felonies,” meaning that they were tried by royal courts and could end with the death penalty. For example, Müller cites a case from 1283-84, in which Joan of Hallynghurst - who was pregnant - tried to intervene in a fight between Maude de Haule and Agnes la Converse. Maude drove Joan out of the house, Joan fell down some stairs, and 4 days later Joan delivered a dead infant. Maude was condemned to be hanged. However, it was rare for these cases to go that far; most were settled or just quietly disappeared at some point. Müller argues that this is because the person who had lost the pregnancy was using the court case to pressure the person they had accused to pay compensation for their loss. When that happened, or when it became clear it wasn’t going to happen, they would let the case drop. The idea of resolving such cases by paying compensation to the injured party appears in earlier medieval law codes from the European continent. The primary goal of these law codes was settling disputes between different families or social groups and they accomplished that goal by setting up compensation schemes for different types of injuries. Mistry provides multiple examples of these schemes: for example, in Visigothic law as documented in the 7th century, if a freeman or freewoman caused a freewoman to lose a pregnancy, the payment was 150 solidi if the infant was “formed” or 100 if “unformed” (more on that distinction below); if a freeman caused a slave girl to lose a pregnancy, he paid 20 solidi to her master; if a slave caused a freewoman to lose a pregnancy, he received 200 lashes in a public beating and became her slave (slaves couldn’t pay compensation because they didn’t have money); and if a slave caused a slave girl to lose a pregnancy, the slave’s master would pay 10 solidi and the slave would get 200 lashes. 

In England, cases of miscarriage by violence became increasingly rare in the royal courts in the 14th century and then disappeared from them. This change happened not because these kinds of incidents stopped happening, but because royal justices stopped recognizing them as felonies. For example, Müller cites a case from 1329 in which a man had beaten a woman who was pregnant with twins, one of the twins died, she gave birth to the other, and it died two days later. The man was brought to court but was released because “the court believed that there was no felony” (p. 138). This change in English common law clearly undermines Alito’s use of Bracton in his opinion. Meanwhile, these types of cases continued to be brought in church courts in England and in church and civil courts on the continent. Church or canon law had a special interest in these cases because, if priests were found guilty of homicide in them, then they could no longer serve at the altar. Civil law in France again treated these cases as homicides meaning they were tried by royal courts and were capital offenses. 

Yarn dyed with madder root.   In the Middle Ages madder was used as a dye and in medications to promote menstruation and cause abortion.  See the Trotula and the Book of Women's Love.

However, Müller argues that interest in abortion-related cases shifted in the later Middle Ages to the provision of abortifacient medications, potions, or “poisons,” and so to the second of Bracton’s interests in the quote used in the Dobb’s opinion. This emphasis goes back to Roman law, which became increasingly influential on both canon and civil law beginning in the 12th century. From the 3rd century onward, providing abortifacient and aphrodisiac medications was illegal in Rome and could be punished with exile to the mines or, for upper-class people, to an island. Mistry suggests that the concern with abortifacients was the danger they posed to the lives of the women who took them. But that doesn’t explain the linking of abortifacients with aphrodisiacs. One possible explanation for that connection comes from Roman moralistic texts that criticize women for using abortion to hide their sexual offenses and so out of a concern to protect their reputations. 

Similar concerns appear in early Christian texts and so again outside of the legal sphere: church counsels at Elvira (Spain) in the early 4th century, Ancyra (modern Ankara, Turkey) in 314, and Lérida (Spain) in 546, all link abortion to adultery, with Lérida specifying that these are abortions done with “potions.” All three specify that people who have offended in this way should not receive communion for a set period of time – from 7 years to the rest of their lives – and Lérida adds that priests involved in these cases are no longer able to serve in that role. These are sins, not crimes, and so receive spiritual sanctions, not legal punishments. The same came be said of the appearance of abortion through “maleficium” in early medieval penitentials – lists of sins and recommended penances for them. In one of the earliest of these texts, from 6th century Ireland, abortion appears in a section about clerical sins. Here the text first focuses on clerical sexual sins and then moves on to maleficium, including potions that 1) harm someone (six years penance); 2) don’t harm anyone but are given “out of dissolute love,” recalling the Roman concern with aphrodisiacs (1 year of penance); and 3) “if a woman has destroyed someone’s offspring by her maleficium,” which could include causing miscarriage or abortion. The penance prescribed for the last sin is a 1/2 year on bread and water, no wine or meat for 2 years, and 6 years of fasting on bread and water at Lent. In the text, this is followed immediately by “But if, as we have said, she bears a child and her sin is manifest, six years as is the judgment about a cleric, and in the seventh she should be joined to the altar, and then we say that she can restore her crown and ought to don a white robe and be pronounced a virgin” (Mistry, pp. 133-34). This woman is, by inference, a nun who has given birth to a child: she receives a heavier penance than someone who has caused an abortion through maleficium. The apparent reason is that the birth of her child has made her sexual transgression “manifest.” Here abortion is again linked to sexual transgression and to reputation, but it is now the church’s reputation that is at stake. Its elite members, monks and nuns, needed to be seen as upholding their vows of celibacy and so a quiet abortion could be preferable to the spectacle of a nun bearing a child. 

 Finally, Müller argues that court cases involving abortifacients became more common in the later Middle Ages for a different reason: because they were easier to bring than other cases of homicide. Rumor was enough to bring a case against someone for distributing abortifacients, where other cases required eyewitnesses, a confession, or a dead body. And so in 1298, a court in Manosque, near Marseille, investigated a Jewish doctor named Issac for providing Uga, the daughter of Petrus de Dia, with an abortifacient. There was no dead body and no witnesses and the doctor did not confess, but in the end he paid a 50 pound fine. In these cases, there was also no need to prove intent. And so in 1425 a woman named Alyson Rancerre, who lived in Beaune in France, was arrested for having caused a miscarriage. She had a 20-year career of providing medical care to women and had treated a woman with a regime to reduce inflammation in the womb, but only after asking the woman if she was pregnant, to which she replied “not that she knew.” We know of this case from a letter Alyson wrote requesting a royal pardon based on her ignorance of the woman’s pregnancy: Müller does not tell us whether her pardon was granted or not (pp. 164-5). According to Müller, the ease with which these cases could be brought made them a way for communities to target marginalized people: the Jewish doctor mentioned above is one example of that dynamic. The same dynamic also shaped which women were in danger of being prosecuted for ending their own pregnancies, who tended to be young, poor, and lacking in family and community support. For example, Müller cites the 1453 case of Marion Faudier who was raped by her father and became pregnant. Her father and his wife tried to force her to take an abortifacient, even using a stick to force her mouth open. The father had confessed, but Marion was concerned that she might face legal repercussions too, since intent did not matter in such cases. We again know of her case from a letter she wrote requesting a royal pardon: it was granted. 

The different ways that abortifacient potions or “poisons” appear in medieval texts demonstrate the importance of paying attention to the contexts in which abortion is discussed in order to understand just what is at stake in the discussion. Bringing that back to the Dobbs decision clarifies some aspects of the 19th and early 20th century U.S. state and territory laws that Justice Alito provides in his two appendixes. The first two of these, from Missouri in 1825 and Illinois in 1827, both state that “every person who shall willfully and maliciously administer or cause to be administered to or taken by any person, any poison, or any other noxious, poisonous or destructive substance or liquid, with the intention to harm him or her thereby to murder or thereby to cause or procure the miscarriage of any woman, then being of child, and shall thereof be duly convicted, shall suffer imprisonment not exceeding 7 years (in Missouri, 3 in Illinois), and be fined not exceeding three thousand dollars (in Missouri, one thousand in Illinois).” These are anti-poisoning statutes, not anti-abortion laws, and intention is crucial in them: the actions must be taken both “willfully” and “maliciously.” Abortion by surgical means was not originally included in either: Missouri’s law was changed in 1835 and Illinois’ in 1833 to include abortion by “instrument” and so turn these into anti-abortion laws in line with those that had been passed in other states. Beginning with a New York law from 1828, these laws begin to include exceptions for the preserving the life of the mother. However, that exception often came with the restriction that this must be “advised by two physicians to be necessary for that purpose” (New York 1828, Ohio 1834, Michigan 1846, New Hampshire 1849, Wisconsin 1858, Florida 1868, Georgia 1876), by a “respectable physician” (Alabama 1841), by “two physicians licensed to practice in the State of New Mexico” (1919), or by “two reputable licensed physicians” (Mississippi 1952), or must be done by a physician “in the discharge of his professional duties” (Idaho 1864, Montana 1864, Arizona 1865), by a “regular practitioner of medicine” after consulting with one or more “respectable physicians” (Maryland 1868), by a “regular practicing physician” (Arkansas 1875), or by a “competent licensed practitioner of medicine” (Washington D.C. 1901). These phrases make clear the connection between advancing restrictions on abortion during this period in U.S. history and the increasing power and authority of the medical profession. 

 

Dyeing yarn with madder.

Medieval texts link abortion and its regulation to sexual transgression, reputation, judicial procedure, and the fate of marginalized people. They do not link it to a concern for the “potential life” (to take language from Roe) of the fetus or the life of the “unborn human being” (to take language from the Mississippi law upheld by the Dobbs decision). Neither English common law, nor civil law on the continent, nor canon law held that life began at conception and so they did not treat all miscarriages or abortions as homicides. The first is obvious from the final part of the Bracton quote, which states that causing miscarriage or abortion is a homicide “if the foetus be formed and animated, and particularly if it be animated.” The implication is that prior to formation, and maybe even after formation but before animation, it was not homicide. Beginning in the 14th century, in English common law, causing miscarriage or abortion was not treated as homicide even after formation and/or animation. In a treatise from 1557, William Staunford explains this by stating that, prior to birth, infants are not “in the nature of things” and so cannot be victims of homicide (Müller, p. 140). Again this undermines Alito’s position that English common law criminalized abortion. 

Early medieval penitentials were similar to English common law at Bracton’s time in making a distinction between abortions performed at different stages in a pregnancy. One common scheme can be traced back to penitentials written by Theodore of Tarsus, who was Archbishop of Canterbury in the 600’s: a woman who had an abortion prior to 40 days of pregnancy was to do penance for a year, but if it was after 40 days her penance would be 3 years. Some texts explain that the 40-day mark corresponded to the fetus acquiring a soul and that the longer penance was that done for a murder. Visigothic law as cited above likewise made a distinction in the payment due for causing the miscarriage of a formed vs. an unformed fetus. Finally, in canon law, a crucial text on this point was a 1211 letter written by Pope Innocent III that entered the collections used in law schools. Innocent had been presented with a case in which a priest had grabbed his lover by the belt and caused her to miscarry their child: the question raised was whether this priest needed to stop saying mass. Innocent's response was yes, if the fetus was formed and animated, but no if it was not. If it was formed and animated, the priest was guilty of homicide and could be subject to criminal penalties. If not, he should do penance for the sake of his salvation. Canon law thus presented miscarriage by violence prior to formation and animation as a personal, religious or spiritual matter, and not a legal matter at all. What these texts means by "formation" is hard to define, but juries in court cases apparently knew it when they saw it and knew when they didn’t. Müller cites a case from 1280 in which Walter Gode was charged with beating Alicia, the wife of Adam le Present, and causing her to miscarry. The jury refused to convict, however, because they could not tell if the fetus was a boy or a girl, meaning it was not yet “shaped” or formed, and so this was not a felony case. 

Again, bringing these medieval laws and rules back to the Dobbs decision can clarify some points. Some of the early U.S. state and territory laws included in the appendixes make a similar distinction between abortions performed before and after “quickening,” giving different penalties for the two situations (New York 1828, Ohio 1834, Missouri 1835, Virginia 1848, New Hampshire 1849, Hawaii 1850, Washington 1854, Kansas 1859). However, others – and particularly those passed later in the 19th and into the 20th century - do not make that distinction. In his decision, Alito uses this change in U.S. state and territory laws to argue against quickening as a meaningful distinction and this forms part of his argument against the viability line established by Roe: that prior to a fetus being able to survive outside the womb, a pregnant person’s right determine the course of their own life should be paramount, and only afterward should the state’s interest in protecting “potential life” restrict their choices. The background of medieval laws and rules shows just how radical the change in law in the U.S. in the late 19th century was and reframes Roe’s viability line as a return to a longstanding attempt to recognize a difference between abortions performed early and late in a pregnancy. 

This brings me, finally, to my primary observation about the Dobbs decision as a whole, which is about its basic incoherence. On the one hand, the decision overrules Roe because at the time of the passage of the 14th Amendment, no one thought it granted a right to abortion. But on the other, Alito’s decision repeatedly states that the same logic doesn’t apply to other rights that have been granted based on the 14th Amendment, even though no one at the time would have thought they were covered by it either – these include the rights to interracial marriage, to contraception, and to same-sex intimacy and marriage. This incoherence is the focus of Justice Thomas’ concurring opinion, in which he argues for extending the same logic to overrule these other rights, and it comes up multiple times in Justice Breyer, Sotomayor, and Kagan’s dissent, where they question the motivation behind the decision. Is it about an “originalist” reading of the Constitution? Or is there something else going on? Much of the public reaction to Dobbs has focused on the first and on ways of safeguarding these other rights. My reading of the decision points to the second possibility. I see another motive in Justice Alito’s repeated justification for overruling Roe but not the decisions granting these other rights: that abortion alone destroys “potential life” or an “unborn human being.” My reading of the decision is as a document laying the groundwork for an argument in favor of fetal “personhood” that would lead to a nationwide ban on all abortions.  Breyer, Sotomayor, and Kagan recognize this possibility in a footnote in their dissent, where they label this position “revolutionary” (p. 27, note 7). The background of medieval laws shows just how revolutionary it would be. Rather than taking us back to Middle Ages, this decision points to a potential new dark age ahead.