Abortion law developed in Middle Ages

Dr. Wolfgang Mueller has published a book on criminal abortion during that era

The Italian city of Bologna is known for a lot of things. It’s where Ferrari and Maserati have their headquarters. It’s the birthplace of Lasagna. 

But my readers may be fascinated to know that it is historically important to reproductive rights because it was where the first modern attempt to put down laws to regulate abortion. In the 12th century, the city was the site of the first modern law school. Its location in Italy also made it a theological place. And it had medical students and practitioners. The intersection of all three groups developed the contemporary views we have of abortion. 

Wolfgang Mueller, author of The Criminalization of Abortion in the West, said that the three views we have today–that legal protections should either begin at conception, birth or at some point in development–were there as well.

“These three of us are fully there in medieval times,” Mueller said. “And in that sense, no history has occurred. You might say these two viewpoints are always available to those who want to engage in the debate and want to frame policies.” 

Law wasn’t a profession in the modern sense until the 12th century in Europe. There were no written rules or laws or a coherent attempt to create codes to abide by. In the 12th century, law schools developed. 

“Before that time, there was no real possibility for people to develop a legal view on something like the question of whether abortion is okay or not,” Mueller said. 

“Of course, there were people before who had views on abortion, and some felt it was okay. And others felt it wasn't. But you can't describe these views as legal because there was no law school or legal discourse.” 

Even after law developed as a profession, there was a split between Roman and Catholic lawyers. The Romans relied on texts from antiquity to shape their views of what was legal. The Catholics relied on outspoken views on abortion from church leaders. 

Other writers, including Gary Wills, contend that the Catholic church had no view on abortion before the 1869 document Apostolicae Sedis, when Pope Pius IX declared the penalty of ex-communication for abortions at any stage of pregnancy. According to that school of thought, Catholic teaching up to then taught that no homicide was involved if abortion took place before the fetus was infused with a soul, known as “ensoulment.” 

Mueller’s work focuses on criminal enforcement of abortion laws instead of theological questions. So that may explain the difference, and it should be something that is addressed when discussing Catholic views on abortion. If–as Mueller contends–the Catholic influence was antiabortion this early, then historians would have to either rebut or agree with the view that the church had held this position earlier than some want to acknowledge. 

I could go on about the theological questions and figures like St. Antoninus, who advocated for legal abortion when the life of the mother was at risk. But the focus is on showing Mueller’s work here, at least with this newsletter. 

Theologians and medical experts in the Middle Ages believed that human existence started when the fetus developed legs. That was in line with what Aristotle taught. 

“The medical community and the theologians were in the middle ages pretty much of one opinion concerning the moment when the fetus becomes human,” Mueller said. “But the whole question of what kind of legal rights were attached to that humanity was very wide open to debate.”