In Dobbs v. Jackson Women’s Health Organization, the Supreme Court relied on medieval English legal texts to argue that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.”1 In Context Matters, Sara Butler demonstrates that reading medieval texts shorn of their context can be dangerous. Butler shows us not only that the rationales behind abortion laws were different in the Middle Ages, as we might expect, but also that the term “abortion” itself referred to a broader and different set of practices than those encompassed by the word “abortion” in its contemporary usage. Butler argues that, when we put medieval abortion laws in their context, they appear to be something fundamentally different from modern abortion laws. Rather than an unbroken chain, we see two very different types of practices in modern and medieval abortion law.
Butler, whose scholarship has encompassed topics such as forensic medicine in medieval homicide investigations, the history of peine forte et dure, and, indeed, the treatment of abortion in medieval English law, is well positioned to add important context to the texts Justice Alito cites in Dobbs. She surveys writing on abortion over a period of several centuries and a number of different geographic contexts to illuminate the major themes of medieval thought about abortion. And, as Butler observes, the major problem the court faces in trying to trace the history of abortion back to the twelfth or thirteenth century is that in discussing abortion today and abortion in the Middle Ages “we are not comparing like entities.” (P. 22.)
The medieval concept of abortion was both narrower and broader than modern conceptions. On the one hand, medieval law treated miscarriage as a category of abortion, as a miscarriage was thought to be a sign of negligence on the part of the mother. On the other hand, as is well known, the medieval concept of abortion abortion only encompassed the death of a fetus post-quickening, as that was thought to be the point at which the fetus was imbued with a soul. Butler also shows, however, that a number of medieval texts demonstrated “an unwillingness to treat the fetus as a person” even after quickening. (P. 10.) Both Britton and the Mirror of Justices—two English legal texts of the thirteenth century that were not cited in Dobbs—state that it was not felonious homicide to kill a fetus before birth.
Medieval texts were thus mixed on whether the killing of a quickened fetus counted as homicide. But even among those that did treat abortion of a quickened fetus as homicide, it is not clear that we should read those texts as treating abortion as “criminal.” As Butler observes, “most of the laws which refer to abortion as homicide belong to canon law.” (P. 10.) As Butler pointed out in a previous article, only a handful of cases where a woman was prosecuted for aborting her fetus have been identified for the whole of the medieval period in England, and they are all cases from the ecclesiastical courts.2 The king’s courts regularly intervened when a pregnant woman was assaulted and her fetus died as a result, and it is clear that they treated the killing of the fetus as homicide in those types of cases. But when it came to a woman aborting her own fetus, “more often than not, it was deemed a spiritual matter, reserved for the internal forum, and deserving of penance, not punishment.” (P. 10.)
Butler’s observation raises an interesting question: if the Supreme Court is going to apply a “history and tradition” test, to what extent should we consider canon law part of that tradition? The courts of the Church had jurisdiction over subject matter that we would think of as secular today, such as probate, and also had a criminal jurisdiction over, for instance, sexual sins. Should canon law count as part of the nation’s “history and tradition”? Or is it evidence that medieval law was just too different from modern law for it to be of much use in constitutional interpretation?
But Butler argues that, even in cases in which abortion was criminalized, the rationale of that criminalization was very different from the rationale of abortion laws today, which aim at protecting the fetus. She presents a number of examples of rules that treated abortion primarily as a crime against the woman’s husband, either because it deprived him of an heir or because it was carried out to conceal the woman’s adultery. Butler argues that we should understand laws about abortion in the context of an array of laws that were “founded firmly in discomfort with a woman’s control over childbirth” and that sought to protect husbands against being cheated out of an heir. (P. 15.) Concerns about abortion mirrored concerns, found in texts such as the Castilian Siete Partidas and the English Bracton, that a recent widow might fake a pregnancy and substitute someone else’s child in order to produce an “heir,” defrauding her dead husband and his family.
I am not certain that this context would convince the Supreme Court. After all, the question the Court posed, and was ostensibly using these historical examples to answer, was whether the “right to abortion” is “deeply rooted in the Nation’s history and traditions.”3 I doubt one could make that argument from the medieval sources. But, as Butler demonstrates, the sources do not clearly establish that abortion, at least abortion in the sense the word was used in Dobbs, was criminal in the medieval common law. Indeed, it is not clear that it was a matter for the common law at all.
Leaving aside the larger debate over whether courts should employ historical tests of this kind, and assuming that they will continue to do so, Butler’s Context Matters illustrates the kind of careful scholarship that courts should be looking to. It reminds judges and clerks that the words they are reading in a medieval text do not always mean what they think they mean. When reading medieval texts, context matters.
- Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, at 250 (2022).
- Sara M. Butler, Abortion Medieval Style? Assaults on Pregnant Women in Later Medieval England, 40 Women’s Stud. 788, 784 (2011).
- Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, at 250 (2022).
