A Survey of the Judicial/Political History of Abortion (1)

Abortion has not always been viewed as a right of women, or a right at all. Quite the opposite, it was considered evil and unjustified for much of medical and political history. The history of abortion is complicated, and I do not mean to imply that there is only one side to this heated and controversial debate. But there is a strong case to be made from standard medical practices, and from state, national and international covenants that altogether suggest that abortion-on-demand has always been unethical. If it was once illegal because it was immoral/unethical, and if it was immoral/unethical because of its assault on humanity as such (i.e.: it literally kills a human life), then so long as it constitutes an assault on humanity it remains immoral/unethical regardless of its legal status. Much legal and political precedent serves to point out abortion was deemed unethical and therefore illegal.

1) the Hippocratic Oath (late 5th cent. BC)
It was considered a mainstay of ALL physicians to swear the hippocratic oath (5th cent. BC) including to swear against abortion. One of the reasons that classical literature and much of modern medical and legal literature did not go out of its way to define children in utero in regards to their human standing is that 1) abortion was already illegal at the time, 2) abortion was widely regarded as unethical at that time, and 3) modern fetology had not developed enough to understand how gestation happens, such as genetics, viability, articulation, etc. The relevant text says:

“I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.”

This Oath has been widely sworn, and up until the late sixties and early seventies of this past century it was considered the normal and established standard for basic medical ethics. Granting that it’s original phrasing is as a sworn oath before the Greek Gods, the document has nonetheless been transmuted into relevant contemporary phrasings across human history, and in every case (that I’m aware of) the language prohibiting abortion is left intact.

2) Soranus (2nd cent.AD)
This ancient Ephesian physician illustrated what seems to be the norm at the time, prescribing various methods of abortion as a medical procedure for complicated pregnancies where the mother’s life is in danger. These exceptional cases have long been understood as legal, ethical, and necessary for the protection of mothers across medical history. Even into the late 1960’s when abortion was still illegal in most of the world, gynecologists and obstetricians understood abortion to be a live medical option (1) in complex pregnancies (i.e.: where there are life-threatening medical complications) and (2) the mother’s life is in danger.

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3) The Virginia Declaration of Rights (May 15, 1776)
Written just a few months before the Declaration of Independence this governmental and human rights charter includes the important lines at its opening, indicating a demarcation of the Government’s role as it relates to the natural rights of men (read, “mankind”).

“Section 1: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Of course, there is no explicit point about abortion here, but of key note is the fact that “life” is mentioned before “liberty.” That order is no accident. It is well understood that “life” is the more basic right over and above “liberty.” One cannot have a right to liberty if one does not also have a right to life. Life is understood here as the foundational right on which liberty is made possible. For abortion, this point allows that another persons’s right of liberty to freely affect other humans is limited at least insofar as it infringes on another human’s right to life.

4) The Declaration of Independence (July 4, 1776)
Our first declared liberation from England, the Declaration of Independence establishes that, “All men are created equal,” and that all men “are endowed by our creator with certain unalienable rights” including “The rights to life, liberty, and the pursuit of happiness.” Though later human rights charters tend to secularize this language, our founding fathers saw fit to retain a “natural law” ethic appealing to an unspecified God. Likely even the deists had a broadly Christian God in mind, but they cautiously refrained from mixing human rights with religion, even if they grounded human rights in God. Here’s the point, the rights of human beings (I use the term “human beings” with no specific intent to imply legal personhood) are established from their point of creation–and that would seem to be conception. Our founding fathers might not have understood gestation and fetal development enough to know that genetically each individual human is distinct from the point of conception, but later medical and scientific developments have since established that there is no question when the genetically distinct human and latent personhood of the individual begins. Moreover, the Declaration borrows and adapts John Locke’s language and the language of the Virginia Declaration of Human Rights in outlining the rights of “life, liberty, and the pursuit of happiness”

5) John Bouvier’s, A Law Dictionary (U.S., 1856)
An elaborate description of abortion is found in a standard law dictionary of its time, John Bouvier’s Law Dictionary. The citation, in full, is . . .

“ABORTION, med jur. and criminal law. The expulsion of the foetus before the seventh mouth of utero-gestation, or before it is viable. q.v.
2. The causes of this accident are referable either to the mother, or to the foetus and its dependencies. The causes in the mother may be: extreme nervous susceptibility, great debility, plethora, faulty conformation, and the like; and it is frequently induced immediately by intense mental emotion. The causes seated in the foetus are its death, rupture of the membranes, &c.
3. It most frequently occurs between the 8th and 12th weeks of gestation. When abortion is produced with a malicious design, it becomes a misdemeanor, at common law, 1 Russell, 553; and the party causing it may be indicted and punished.
4. The criminal means resorted to for the purpose of destroying the foetus, may be divided into general and local. To the first belong vivisection, emetics, cathartics diuretics, emmenagogues &c. The second embraces all kinds of violence directly applied.
5. When, in consequence of the means used to produce abortion, the death of the woman ensues, the crime is murder.
6. By statute a distinction is made between a woman quick with child, (q.v.) and one who, though pregnant, is not so, 1 Bl. Com. 129. Physiologists, perhaps with reason, think that the child is a living being from the moment of conception. 1 Beck. Med. Jur. 291.
General References. 1 Beck, 288 to 331; and 429 to 435; where will be found an abstract of the laws of different countries, and some of the states punishing criminal abortion; Roscoe, Cr. Ev. 190; 1 Russ. 553; Vilanova y Manes, Materia Criminal Forense, Obs. 11, c. 7 n. 15-18. See also 1 Briand, Med. Leg. 1 ere partie, c. 4, where the question is considered, how far abortion is justifiable, and is neither a crime nor a misdemeanor. See Alis. Cr. L. of Scot. 628.
* A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

This ban on abortion does not, of course, include natural abortion that is, miscarriage. Induced abortion, however, is deemed criminal. Interestingly, it is only considered murder if the mother’s life is also taken. Legally, there was a different standing between the mother and the preborn. No stance is taken, nor morally could be taken, that the mother is more or less human than the preborn, yet legally there was an understood difference between a viable living adult female and a preborn child.

6) The Declaration of the Rights of Man (August 26, 1789)
The famous human rights charter of the French Revolution has come to be known as an even more liberal shift from the (then) liberal U.S. Declaration of Independence (1776) and Constitution (1787). As can be expected of the time period, this French charter makes no attempt to clarify personhood or a right to life extending, potentially, to the preborn. It is silent on any “rights of the preborn.” Its focus is birth status onward. It says,

“1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”

The right to “liberty” has become a mainstay of the “pro-choice” movement in the U.S. There is nothing debatable, in principle, with the notion of people having a broad right to liberty. It would however be a fallacious argument from silence to suggest that one’s rights of freedom and equality ONLY happen from birth onward, since this document is silent on the status of the preborn. It should be born in mind that modern fetology had not come very far at the time, genetics had not yet been discovered in any serious sense. Medical practice had not advanced to the point of knowing much of what was going on in the mother’s womb. Hence it would be fallacious to speak technically where there is only clouded mystery. Moreover, abortion was illegal at the time, so there was no perceived need to clarify the rights of the unborn since the unborn were currently protected by law at the time.

6) The Universal Declaration of Human Rights (December 10, 1948)
The Universal Declaration of Human Rights (UDHR) is a foundational charter of the United Nations. It had no specific reason to anticipate any need to state the rights of the unborn since abortion was illegal in most every nation at the time. Since the preborn have limited freedom of expression, and have only latent abilities of personhood (i.e.: to learn, think, feel emotional pain or joy, etc.), and since these kinds of charters have to operate carefully and cautiously so as not to generate diplomatic breakdown, it was in their best interests to speak only where they must in regards to live and pressing human rights violations (such as forced marriages, war crimes, slavery, etc.). Nevertheless, the UDHR gives no explicit or even clearly implicit right to abortion. Now it is only implicitly useful to the pro-life cause since it is not phrased intentionally towards preborns. But it does make some valid points applicable to preborns whereas the only way to interpret it as EXCLUDING preborns is by an argument from silence.

For example, it uses the broadest terms to describe those who have human rights when it says in the preamble,

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, . . . ”

The language of “all members of the human family,” seems purposefully broad so as not to accidentally exclude any given people group, class, or kind of human. It is no innate fault then of pro-life advocates to use inclusive language when that inclusive language is in effort to avoid infringing on human rights where they might have existed beneath our awareness.

In Article 1 is perhaps the most Pro-choice friendly line in the whole document saying,

“All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Article 1 identifies human rights as applying from birth onward. The pro-lifer however can fully agree that people have all innate human rights from birth onward. That’s completely true. It would be an argument from silence to interpret that point as excluding human rights for preborns especially since it is medically and scientifically indisputable that all preborns are genetically distinct living human organisms from conception onward. To argue from the positive language of the UDHR that, negatively, preborns have no human right to life is an argument from silence.

Article 2 goes further saying, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, BIRTH or other status.”

This article is repeated often in later charters and covenants on human rights. The term “birth” is minimally about birth-status, that is, if a person is born into high society or a privileged class that does not rightly qualify him or her to greater legal and social rights (even if they may have greater privileges; i.e.: privileges are distinct from rights). Maximally however, this language is just hasty and broad enough to potentially include birth discrimination–that is, discriminating against children on the basis of whether they are born or not. The pro-lifer however should be warned that this “maximal” reading is not how everyone “reads” these lines, and legal and judicial settings often prefer minimal interpretations demanding a higher burden of proof for “maximal” interpretations. Nevertheless, it does say that these entitlements are “without distinction of any kind,” thus that habit of intentionally broad language is maintained from the preamble and even though Article 1 addresses only “born” humans Article 2 could be seen as developing, without rebutting, it’s clarification of just how wide human rights apply up to and including whether a human has been born or just conceived.

Article 3 adds a point from our Declaration of Independence, “Everyone has the right to life, liberty and security of person.”

Without mimicking our own national charter (Decl. of Ind.) the UDHR extends a more conservative reading, removing the language of “pursuit of happiness” and opting against “pursuit of property,” it takes the more humble and conservative route of saying, “security of person.” Still, the relevant point remains: life precedes liberty. Life is implicitly understood as the more basic right than liberty. And given the language of “equality” elsewhere in this declaration, one’s right to liberty does not include a right to take another human being’s life (at least not without some justifying cause such as a capital crime or declaration of war).

6) U.N. Declaration of the Rights of the Child (1959).

The universal declaration of human rights was somewhat limited in scope since many natural rights cannot practically be applied to preborn children, young children, or were otherwise unwise in applying to minors. It was deemed necessary by the U.N. to establish a charter and declaration concerning the human rights status of children. In this charter for children, drawn up by the UN, the preamble states tellingly

“Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

Here perhaps for the first time, the threat to preborns by abortion is now understood to have civil rights implications and this charter identifies a right to special protection “before as well as after birth.” The pro-life implications are huge. If this international charter is correct, then later judicial findings or laws (including Roe vs. Wade) militate against this right are unjust. There are still rights that don’t suit the preborn as such (including a right to a name, access to education, etc.), but this has always been admitted by pro-lifers. Preborns have no standing right to rent a car, own a home, or vote either, but these do not speak to the human status of that child and there are basic rights as humans that would seem to reside beneath any other maturity-contingent rights. Those more sophisticated rights are latent to the preborn, but not presently applicable. The right to life however, is the most universal human right, the least contingent, and should be the most respected and honored.

7a, b) “The International Covenant on Civil and Political Rights,” and “The International Covenant on Economic, Social and Cultural Rights” (December 16, 1966)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a UN document which borrows much of the language from the UDHR. The ICESCR says

“3. Special measures of protection and assistance should be taken on behalf of all CHILDREN and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.”

The International Covenant on Civil and Political Rights (ICCPR) is also an early charter of the United Nations seeking to establish and or identify natural rights extending to all people regardless of cultural, ethnic, or national standing. What makes both of these documents especially interesting to this discussion is that both of these use the term “child” and later U.S. precedent establishes that preborns are each a “child in utero.” The ICCPR says,

“Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire nationality.”

As such, these international human rights charter establishes a nondiscrimination policy which U.S. Jurisprudence can rightfully apply to preborns.

8) Roe vs. Wade . . . to be continued.

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