Introduction The word abortion comes from the Latin ’aboriri’ meaning to miscarry, where pregnancy ends too soon and the baby dies. The Abortion debate has become one of the most divisive and contentious issues of our time. Garlikov is of the opinion that once those for or against abortion reflect with more rationality,they will discover that they have more common ground than expected. 1 This essay seeks to engage in the continuing debate about the states legal enforcement of morals in relation to abortion. Furthermore this will be contrasted with both the Roman Catholic and Anglican norms of canon law.
In this respect Jeremy2 has marked out some important areas in his historical and contemporary analysis, which has highlighted different approaches to morality. A fundamental question is whether abortion is wrong, and if so is this sufficient reason for legal prohibition. Alternatively are there, as Dustan says, first order principles and second order rules, to allow for the varying shades of moral action within this moral dilemma. 3 In contrast to the absolutist view of prohibition, liberal society reflects the view of Mill that ‘no conduct should be suppressed unless it can be shown to harm someone.
’4 Any understanding of the present civil law on abortion needs to be set in its sociological, historical and philosophical context. A further dimension is the influence of Roman and Canon Law on the development of English Common Law. Here the reader is referred to the work of Belcher and others for more detailed information. 5 Any analysis of civil law must therefore be set within the context of both the Roman Catholic and Anglican canonical provisions, to elucidate any convergence or divergence.
However, whilst the ecclesiastical law of the Church of England is part of the wider common law of the state and that in the absence of any canon law the Roman Catholic Church accepts, this must be consonant with Divine law. 6 In this respect this essay will seek to elucidate any common or divergent grounds as a result of particular philosophical and theological stances. Before examining particular civil and canonical legal norms of the rights and status of the foetus we first need to understand its process of development from conception to birth.
This is because the various arguments and legal statements use medical terms and definitions when commenting on the various stages of the maturation process. Foetal Development Foetal science has identified 13 stages of foetal development. This begins from conception and the formation of the zygote to cell division and formation of biological structures that will result in a birth. Significant stages are the formation of the beginning of the circulatory system, brainwave activities, human resemblance and a minimal ability to survive independently of the mother by the 24th week.
7 Essentially science is concerned with mapping out of sequential changes. This in turn leads to the attribution of such human qualities as respiration and brain function. Here Kovacs and Anderson link brain function to the moral status of the embryo and foetus in relation to birth and death. 8 This concern with ‘animation’ is traditionally seen in the term ‘Quickening’ used to define the time when the foetus attains sensory capabilities. This usually occurs in the second trimester of pregnancy (6 months). Abortion may happen either accidentally or intentionally.
9 Historical perspective Pre-Christian sources such as Ovid (c43BC-AD65), Juvenal (c57/67-127) and Musonius (28Bc-9AD) condemn abortion with the imposition of a penalty for such action. 10 It was Aristotle who said that at conception a child was endowed with a vegetative life which in a few days was exchanged for an animal soul, which in turn would develop to a male human soul in forty days(second trimester) and a female one in eighty(third trimester). The early Church taught respect for human life in the womb.
In this it made a clear statement against abortion. This is readily seen in the early sources which include the teaching of the early fathers and the fourth century councils of Eivira and Ancyra. 11 However from the fifth century onwards there was a continuing debate about Aristotle’s concept of ensoulment. In 1140 Gratian compiled the first collection of canon law. He drew from pre-exiting canons and in relation to abortion reported the views of Pope Steven (816-817) that in the absence of a formed foetus, that had no soul, abortion was not homicide.
12 Thomas Aquinas (1225-1274) reflected Aristotle’s view on a process from a vegetative to a rational soul. The council of Vienne (1312) confirmed Aquinas’ perspective, but he also added the concept of a Soul force given at the moment of conception. 13 Aquinas’ differentiation between a foetal Soul and a Soul Force, meant that abortion of the first was homicide, but of the latter though morally wrong was only a grave sin. 14 Consequently Pope Innocent III (13th century) declared that abortion at the ‘quickening’ was murder, but prior to this it was less serious.
However in 1588 Sixtus V, in his bull Effaenatum declared that all abortionists were murderers. Gregory XIV in Sides Apostolica relaxed this penalty in relation to an unanimated foetus. Pope Pius IX, in Apostolicae Sedis 1869, finally eliminated the distinction between and animated and a non-animated foetus. This view gave a clear signal that personhood begins at conception which also looked back to Tertulian who declared “he who will one day be a man is a man already.
”15 This was to be a fulcrum point for the later debate over ‘Personhood’ as a legal concept, because it relates to Legal/ Philosophical and Theological issues. The legal/philosophical issues deal with the entities rights, property or identity, and the theological ones with the concept of a soul. Historically the foregoing aspects of Canon Law have influenced early civil legal opinion. For example the death penalty was enjoined by the Visigoths, Spanish and French. In the early twentieth century French law enjoined imprisonment for abortionists.
In England Bracton’s textbook (1250) reiterated the canonical prohibition that abortion after the quickening is homicide. He drew upon the Aristotelian distinction between formatus and informatus where a human shape was required before a soul could be infused. 16 However by the fourteenth century Kingston comments on the Twinslayers’s Case’ of 1327 and the Abortionists Case of 1348 which declined to make causing foetal death a legal offence. 17 Blackstone states that case law recognised life from the ‘quickening’.
Whilst this used to be seen as homicide or manslaughter it was changed to only a ‘heinous misdemeanour’. 18 In a judgement given by Sir Matthew Hale (1670), Kinney notes that in a case of maternal death it was the rights of the mother and not the foetus that resulted in the offence of murder against the abortionist who caused the death. 19 Common law tolerance ended in1803 when “a criminal abortion law was codified by Lord Ellenborough,”when abortion of a ‘quick’ foetus became a capital offence. 20 A similar view is seen during the nineteenth century in the United States.
For a more detailed understanding the reader is referred to Kingston who notes that sociological trends of liberalisation in the twentieth century resulted in a process of more liberal abortion law reform. 21 From this historical backcloth let us now turn to the current civil law on abortion. Civil Law on Abortion As we have seen civil law was developed from Medieval Canon Law. By the seventeenth century Ecclesiastical Law was replaced by Civil Law. Abortion changed from its case law position of being a crime at common law to that of a felony. This was as a result of Lord Ellenborough’s Act 1803 which brought Abortion under statute law.
22 However in the view of Jeremy modern law is founded on the Offences against the Person Act 1837. 23 Subsequent revision in 1861 enjoined a maximum penalty for abortion of life imprisonment and outlawed any instruments (S. 58) or actions (S 59), intended to bring about a miscarriage. Furthermore the Infant Life (Preservation Act) 1929 made it illegal to kill a child who was in the ‘process of being born’ where they were capable of living. This “capability of being born alive” was seen as starting from the twenty-eighth week. A land mark case was R v Bourne,24 which modified the law prohibiting abortion.
25 The Jury Acquitted after listening to Mr. Justice McNaughton’s view. Whilst quoting no authority, he stated that the 1929 Act provision of permissive abortion, when the mothers life was at risk, should in this instance be part of the Offences Against the Person Act 1861. This test case paved the way for more liberal interpretations which could be interpreted as abortion on request. This legal precedent was subsequently adopted by other commonwealth nations. 26 The Abortion Act 1967 attempted to close the door upon abortions on request. Grubb identifies four changes that the Act made:-27.
1. Greater clarity for performing a lawful abortion. Abortions would now be performed by a ‘registered medical practitioner,’ only after two such practitioners have agreed in ‘good faith’. It separated issues on maternal and familial medical care to take into account any serious aspects of the woman’s health. Where a termination is ‘immediately necessary’ one registered doctor may make the decision to terminate. 2. It established time limits for performing a lawful abortion. However this was initially governed by the Infant Life (Preservation) Act 1929 S. 1. , which set a 28 week time limit.
As a result of the HUFEA Act 1990 this must now be within 24 weeks on the grounds that to do otherwise where the risk of ‘grave and permanent injury’ to the mother exceeds that to the foetus; or where birth would result in a seriously physically or mentally handicapped baby. The decisive influence was the landmark cases of C v S on appeal and Rance v Mid Downs HA influenced change to 22-24 weeks, because they established that a less mature foetus was capable of being born alive if its developmental stage enabled it to breathe on its own or with artificial help. 28 3.
Introduction of the concept of selective reduction as portrayed by the whole of Section 1 (1) of the 1967 Act. 4. Allows the use of medical abortifacient substances. Furthermore administrative norms were set for certification, record keeping and approved places for medical procedures. 29 Nevertheless this Act did not replace either the Offences Against the Person Act 1861 or the Infant Life Preservation Act 1929. This process of liberalisation was echoed in the United States in 1973 when the Supreme Court, in Roe v Wade recognised abortion as a constitutional right.
In this the ruling was that during the first trimester there can be no legislative bar from the woman obtaining an abortion from a licensed doctor. In the second trimester abortion could only be in order to protect the mother’s health, and in the third trimester the state whilst recognising the overriding interest of maternal life or health, protected foetal life. 30 However in 1978 a bill was passed to restrict Medicaid funding,31 and in Planned Parenthood v Casey (1992) established a 24 hour delay for consultation and advice against abortion.
32 However the Clinton administration reversed this and established the Freedom of Access ro Clinic Entrances Act (FACE) 1994 making it a criminal offence to blockade abortion clinics or take threatening action. 33 The Human Fertilisation and Embryology Act 1990 (HUFEA), created both a framework for the regulation of infertility services, and in Section 37 amended the 1967 abortion law. According to Grubb it also further clarified the Offences against the Person Act 1861 by supporting the view that a woman can only be treated as carrying a child after the implantation of the embryo.
34 In this sense contraceptive techniques that inhibit implantation are not seen as causing an abortion. In this milieu Jeremy summarises the Act as providing four new and revised grounds for abortion:- ‘1. That the pregnancy hadn’t exceeded 24 weeks and that its continuance would involve risks greater than termination in relation to any injury to the maternal or familial physical or mental health. 35 2. Termination is necessary to prevent grave permanent injury to the mother’s physical or mental health. 3. Continuance of pregnancy would involve greater risk to the mother than if pregnancy was terminated.
4. That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. ’36 Furthermore the Act gave doctors legal immunity from ‘child destruction’ stated in the 1929 Act, up until birth under the four HUFEA criteria already mentioned. A statistical analysis reveals few abortions are carried out after 24 weeks, where most were carried out within 12 weeks because of reduced maternal risks and early detection of foetal abnormalities. Finally there is no evidence for a demand for late abortions.
37 However, the case of Royal College of Nursing v D. H. S. S raised the issue that the Act permitted abortions on request. 38 This is because the Act permits medical action on the non objective criteria of ‘good faith’, which is ‘a private one between doctor and patient’. 39 Furthermore there is the wide and imprecise nature of terms relating to being ‘seriously handicapped’. This is left to medical judgement and can relate to such things as cleft palates and hare lips or, as seen in the U. S. A. , to HIV infection.
40 Nevertheless the 1929 Act still maintains that the killing of a foetus being ‘capable of being born alive’, independent of an abortion, is a felony. 41 Grubb makes an important point in emphasising that the legal sources for law do not convey a right to an abortion, but more a duty of care for the mother in balancing the needs of the foetus with those of the family. 42 This is complicated in ‘selective feticide’ which balances maternal survival with the needs of multiple foetuses. ’ Here medical procedures are used to kill a foetus without terminating the pregnancy.
Compliance with the Abortion Act now offers legal protection. 43 Subsequent amendments, post HUFEA , has brought both selective reduction and selective feticide of the foetus within the terms of the Abortion Act. 44 Theoretically an abortion could be carried out up to birth. Here the moral principle of ‘double effect’ is pertinent when an action that seeks to save the mother, unintentionally brings about foetal death. Such actions are termed praetor intentionem for they are not ‘intentionally’ or directly sought. Thomistic thought puts forward four criteria for application:- “1.
The action from which evil results is good or indifferent in itself; it is not morally evil. 2. The intention of the agent is upright- i. e. the evil effect is sincerely not intended. 3. The evil effect must be equally immediate causally with the good effect, for otherwise it would be a means to the good effect and would be intended. 4. There must be a proportionate grave reason for allowing the evil to occur. ”45 This opens up a wide range of ethical considerations, involving considering the rights of not just the pregnant mother. The Reader is referred to Ajmal for an in depth discussion. 46
Personhood and Legal PrecedentThe term person is either used legally or philosophically. The reader is referred to English and Heaney the philosophical arguments. 47Clarification of law is sometime given by legal precedents (Stari Decisis). Here an important point is that as the law recognises human rights granted to persons, does it also recognise the foetus as a human person? If it is then it has the rights of a person and abortion is an act of murder with no biological difference between a zygote and a formed baby. If it is not a person then it is merely a group of cells that belong to the mother.
In Paton v BPAS Trustees and the European Court of Human Rights viewed legal status legal status as belonging only to the born. 48 Here the father failed to prevent his estranged wife from obtaining an abortion. This and similar cases affirm that such decisions only give locus standi to the doctor and patient. 49 Does the law of property apply with the foetus being a chattel? This would apply ownership by someone through purchasing, producing it or receiving it as a gift from a third party. Clearly the mother has helped to create the entity with the provision of sustenance but is a joint owner with the Father.
Professor Thompson argues that the mother is the person who houses the child and so has ownership. Furthermore in R v T (Adult refusal of medical treatment) it was maintained that that a person has the right to decide what was to be done with their own body. 50 However it is by no means clear that the law accepts body parts, prior to birth as the subject of ownership. Nevertheless in Bolam v Friern Hospital Management Committee it was established that a Doctor may act in the foetus’ ‘best interests’ by treating the foetus as an incompetent entity. 51.
In the United States the case of Webster v Reproductive Health Services (1989) maintained the State of Missouri’s position that ‘life begun at conception’, which gave the legal status of a juridical person. 52 However Heaney and English see this question as far from settled. Whilst English argues the concept of ‘personhood she still argues for abortion in restricted cases. The reader is referred to Heaney, like Grubb, concludes that there is no consensus between the philosophical, theological, legal and scientific areas of the abortion debate, but postulates an argument from silence to support foetal personhood in the constitution.
53 In Thornburgh v American College of Obstetricians and Gynaecologists Justice Stevens states the States interest in terms evocative of the Abortion Act 1967. Heaney notes Stevens’ inconsistent arguments. Although acknowledging the religious argument, he state that if there were no difference between a foetus and a formed human being that this was not a matter for legislation. Nevertheless Stevens admits a place for theology (philosophy) where there is a ‘valid secular interest. ’ 54 This is to engage in a Theory of Potential life, in relation to transitional and contingent foetal rights based upon Lockwood’s philosophy.
55 The problem is in determining when the potential for life begins and the acquisition of conscious thought. Ajmal points out statutory inconsistencies that don’t declare an incompetent non human and yet protects the rights of non humans where the foetus is a ‘form of life’ and may have status through the ‘Sanctity of life’. 56 Let us now turn to the areas of conflict with Canon Law first with Rome and then with Canterbury. Canon Law Divine law cannot be waved. No custom contrary to it can acquire the force of law.
In the Hebrew text of Exodus a fine is to be paid if an incident causes his wife to miscarry and a ‘life for a life’ with maternal death. 57 However the Septuagint makes a distinction between the ‘formed’ and ‘unformed’ foetus. Other Old Testament texts witness to the sanctity of human life which God has formed and its future hope. The New Testament has a positive valuation of life in the womb. Whilst having no direct reference to abortion rejects the use of any potions. 58 As we have already seen the early church condemned abortion within a developing views of the status of the foetus in relation to conception.
The Doctrines of Creation and redemption affirm an action of both preserving human life and enhancing its quality. The Reader is referred to Cahill for a fuller analysis. 59 Modern Canon law is expressed in the Roman Catholic Code of Canon Law and by implication in Anglican Canon Law Roman Catholic Canon Law The 1917 Code of Canon Law required excommunication for both the mother and anyone taking part in an abortion. Pius XI in Casti Connubii (1930), which condemned therapeutic abortions, whilst not infallible teaching remains the authoritative hierarchical view.
Vatican II (1965), in Gaudium et Spes (S. 51) affirmed that life must be protected from conception to protect human life. 60 Paul V I’s encyclical Humanae Vitae (1968) declared abortions unlawful. 61 In 1974 the Sacred Congregation for the Doctrine of the Faith (CDF) issued theological guidance on procured abortion de abortu procurator. 62. Immoral human law cannot declare procured abortions right. 63 The teaching of Vatican II was affirmed by Familiaris Consortio (1981); Veritatis Splendor (1993)The Catechism of the Catholic Church (1994)64 followed by Evangelium Vitae (1995).
The encyclical Evangelium Vitae expresses received theological principles that a civil law that conveys a right to an abortion is intrinsically evil action of the free will and that abortion from conception to birth is a ‘deliberate and direct killing’. 65 In this the Pontiff is the supreme legislator. 66 This was heir to declarations from the CDF de Abortu Procuratio and the instruction Donum Vitae (1987). A more recent development of this theology has been the Solemn Consultation in 1999. It reflected on papal teaching in Evangelium Vitae and discussed three issues in relation to Thomistic principles on abortion.
First a definition of the time of ensoulment of the embryo. Secondly the necessity of baptism and finally how these children are martyrs. 67 The 1983 Code of Canon Law recognises civil law in the absence of any canonical provision, but affirms that this must not be contrary to Divine law. 68 Here the Roman Catholic Church, like the Anglican Church, treats secular law as ‘quasi-corporate’ institutions. 69 Abortion is forbidden by canon law and incurs a latae Sententiae(automatic) excommunication. 70 This is a far stricter penalty than that for murder.
71 Jeremy notes that this is “equivalent to the automatic excommunication for a physical attack on the Holy Father. ”72 In order to gain greater clarity Coriden notes guidance was given by the Pontifical Council for the Interpretation of Legislative Texts (1988). 73 Abortion is defined as “not simply the deliberate ejection of an immature foetus but also any intentional killing of the foetus through whatever means at any time after conception. This broadened view of abortion is an extensive interpretation of the code, which is not retroactive but operative only after the interpretation.
”74 Evangelium Vitae widens the scope of the liability to not only those who commit the crime, but those with knowledge of it and any accomplices that enabled the crime to be committed. 75 Jeremy comments that “it follows that potentially, the Canon extends to the mother, any Counsellor the father, parents who encourage or incite doctors and nurses. ”76 In relation to the clergy orders voluntary homicide or participating in a completed abortion is seen as irregular for the reception of orders. 77 A dispensation can only obtained from the Holy See.
78 Such irregularities also impede the exercise of Holy Orders already received. 79 However not the exercise of governing functions. 80 Coriden notes that fundamental questions still remain about the relationship of penalties to the exercise and revocation of Orders. 81 However, in sacramental confession a Bishop may remit any penalties other than those reserved to the Holy See. 82 The punishment of excommunication intends to make the individual aware of the gravity of their sin and to “foster genuine conversion and repentance.
”83 Public sinners are not to be admitted to Holy Communion. 84 This is because reception is dependent upon being ‘properly disposed’ in holding the Eucharist ‘in highest honour’. 85 In relation to confession the Code emphasises that the confessor must remember that he is not only a judge but a physician dispensing God’s justice and mercy. 86 In assessing various penalties consideration must be given to the various factors ‘affecting imputability’. 87 This effectively means that the penalty of latae Sententiae is rarely declared.
Mitigating circumstances are taken into consideration. 88 Nevertheless guilty members of religious and secular institutions and societies of apostolic life must be dismissed. 89 It is a general norm that the confessor can absolve if there is a proper disposition of the penitent. 90 However if a person has already been excommunicated or under an interdict, they have no right to receive the sacrament of penance. 91 When these are lifted, their rights return. 92 Confessors can remit a censure of excommunication or interdict in the internal forum of confession.
Where the priest is not the ordinary the penitent remit is dependent upon them making recourse to their own ordinary within one month. 93 The reader is referred to both Stenson and McArevey for a more detailed appraisal. 94 Anglican Canon Law (Church of England) The Anglican Church is heir to the pre reformation canons that have not bee repealed, with the context of Scripture (Divine Law) Tradition and Reason. The General Synod has affirmed the sanctity of human life in the womb. 95It combines a strong opposition to abortion but recognises that there can be limited conditions under which it is morally legitimate.
In 1983 the General Synod stated that abortion is only permissible where the mother’s life is in danger. This was modified in 1993 to situations where the mother has been raped or the foetus is at risk of being seriously handicapped. 96 In 2002 there was a call for legislation to curb abuses. 97The current interpretation of the 1967 Abortion Act on what is a sever handicap is seen as too liberal. 98 Lambeth Conferences in their persuasive moral authority make no direct reference to abortion only to the sanctity of life, responsible parenthood, sacredness of personality and human rights.
99 Conclusion- is there conflict? From the foregoing discussion we see that Civil Law has been at odds with the Roman Catholic and Anglican Canon Law since the high medieval period. Nevertheless current canon law still holds a respect for civil law in so far as it is consonant with the Moral Law with its roots in the Divine Law. Roman law directly challenges the basis for the Secular law on abortion, as any derogation from Divine law is not seen as morally binding, with the Church exhorting disobedience.
100 Unlike Civil Law Canon Law upholds the Sanctity of human life. Life is sacred and inviolate. This is continually stated in the bible which enjoins Christians to not only respect but defend this position. Doctrinally this is focused in an understanding of Creation and Incarnation. Humankind is created in the image and likeness of God for salvation in which life from beginning to the end is sacred. This has led to a workplace conflict for Christian and particularly Roman Catholic doctors and nurses. The reader is referred to other sources for amore detailed views.
101 Contrastingly there are also groups like “Catholics for A Free Choice” (CFFC) who argue for a pro choice position. 102 Such groups and opinions are symptomatic of the feminist critique of Christianity and the development of personal autonomy free from male dominated power structures. The Lambeth Conferences was not a robust direct denial of the civil law approach but with the Synodical statements maintained a strong position, although not as definitive or as uncompromising as Rome. Civil Law does not recognise the ecclesiastical principle of life beginning at conception.
Whilst both have a developing concept of the human foetus, Civil Law only recognises the foetus in terms of its viability at twenty four weeks or when there are evident the clinical signs of nervous system development, quickening and the ultimate evidence of birth. Civil Law does not see the foetus as a legal person. Where canonically the foetus has rights through the potential and actual human life it derives from creation, civil law sees the foetus as only affecting the rights of others, with no rights of its own until birth.
103 Potentiality doe not detract from or minimise the foetus being fully and equally human. This thought is not a strong or developed feature of Anglican teaching. The Roman Catholic position is very robust. The Pontiffs view sets absolute and consistent moral standards. The Civil Law view is very relativistic, where the moral legitimacy of its position is open to question. Bibliography. Ajmal H. N. M. The Foetus and Human Rights Unpublished LLM Dissertation (Cardiff 2002) Anderson Gary. M. ‘Persons in the whole sense’ (1997) The American Journal of Jurisprudence.
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