May 7, 2022 09:44 PM
(This post was last modified: May 8, 2022 04:35 AM by C C.)
EXCERPT: . . . Rather than American law, I want to deal with the “ancient” precedents—particularly the assertion that in “common law” (i.e., English law traditions from before 1776) abortion was tacitly allowed up to “quickening,” when the fetus began to move and kick. As the AHA brief notes, before this period, “common law did not even acknowledge a fetus as existing separately from a pregnant woman.”
Pregnant women can generally feel their fetus move at around 18 weeks of gestation; in the Middle Ages, when women’s periods might be irregular for many reasons and recollections of when a sex act took place hazy, it was an incredibly subjective and personal measurement.
Medical texts were similarly vague: Aristotle, for instance, held that quickening took place at 40 days for male fetuses and 80 for female. And, since the line between pregnancy and a period that might have been missed for other reasons was vague, remedies to “restore the menses” before quickening – the same terminology used by the 19th century – abounded. No less an authority than the twelfth-century abbess Hildegard of Bingen provided recipes, as did Peter of Spain.
(Note that today, “viability,” the point before which 1992’s Casey decision holds that abortion ought to be legal in all circumstances, is considered to happen at 24 weeks.)
While some Church authorities did consider abortion at any stage a mortal sin, the twelfth-century Decretum written by Church lawyer Gratian declared “he is not a murderer who brings about abortion before the soul is in the body” (i.e., quickening). This idea of “quickening” was passed down into medieval and early modern English law, and was a distinctly medieval innovation: Roman law, as well as early Germanic law codes such as the Visigothic, Salic, and Bavarian, forbade abortion under harsh penalties. As with nineteenth-century bans, this was as much out of concern for the mother as for the fetus, since early medieval medical abortion was accounted dangerous. At the same time, as Roland Betancourt discusses, embryotomy – true “partial-birth” abortion, cutting apart a viable fetus so that the mother would not perish in childbirth – was seen as a necessary evil.
Carla Spivack does an excellent job of contextualizing and refuting arguments about the supposed illegality of abortion in early modern England. To summarize her claims: jurists’ concern was by and large for illicit sex, not abortion; the cases cited by those making an anti-choice case are for those who destroyed either newborns or fully-formed, “quickened” fetuses, and/or women who died from taking dangerous concoctions of herbs; the line between pregnancy and merely missing periods or having an abnormal growth was not well-defined; and herbal recipes for what is today called “medicine abortion,” which was conflated with restoring normal, healthy menstruation, were common and well-known. Further, a fetus in the early stages of development was not even considered to be human... (MORE - missing details)
In colonial America and until the latter third of the 1800s, quickening was the stage where abortions became culturally improper in the US, which overlapped modestly with the second trimester.
Roe v Wade wasn't supposed to be an open season for fetuses clocked at 24 to 28 weeks of gestation, and certainly not a license for abortion in the third trimester.
". . . during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother." (Wik)
Accordingly, second-trimester abortions (so called "late-term") only constitute 10% of abortions in the US.If SCOTUS strikes down Roe vs Wade, 16 states and DC still have laws protecting abortion rights. (CBS)
So among the potential 24 to 26 potential states instituting restrictions, it's the eleven states with potential six-week bans and one with an eight-week ban that would abbreviate time in the much coveted first trimester.
The four states that would have 15 week bans and the four states with 20 week bans fall within that original range of abortion in early America (quickening): 13 or 14 weeks minimum, 20 weeks max till feeling movement.
Pre-mature birth survivability (viability) is now at a sooner point than the known limit of 28 weeks in 1973, and the speculated 24 weeks deemed possible via advances, when Roe v Wade was decided.
One aspect of the legal abortion regime now in place has been determining when the fetus is 'viable' outside the womb as a measure of when the 'life' of the fetus is its own (and therefore subject to being protected by the state). In the majority opinion delivered by the court in Roe v. Wade, viability was defined as 'potentially able to live outside the woman's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks, approx. 196 days) but may occur earlier, even at 24 weeks.'
When the court ruled in 1973, the then-current medical technology suggested that viability could occur as early as 24 weeks. Advances over the past three decades have allowed fetuses that are a few weeks less than 24 weeks old to survive outside the woman's womb. These scientific achievements, while life-saving for premature babies have made the determination of being 'viable' somewhat more complicated. The youngest child thought to have survived a premature birth in the United States was Amillia Taylor (born on October 24, 2006, in Miami, Florida, at 21 weeks and 6 days gestational age, approx. 153 days vs. possibly expected gestational period of 40 weeks, approx. 280 days). (Wik)