A pregnant mother's sensation that a child in her womb has moved of its own volition is called "quickening". About 40 weeks typically separate conception and birth, and 24 weeks separate conception and "quickening". The quickening of a child has long provided a basis for moral and legal distinctions concerning abortion, and I would argue is the implicit basis for the "trimester" framework of United States' constitutional law as expressed in Roe v. Wade.

The Bible

Pro-Lifers assert that "The Bible teaches us that life begins at conception." In fact, the Bible teaches no such thing. Rather, the Holy Scriptures acknowledge that life begins before birth. God knows us in the womb. See Psalm 139:13-15; Jeremiah 1:5. Before birth, we may even feel and express joy at the presence of God. John the Baptist met Jesus before either of the men were born, when John's mother Elizabeth was 6 months pregnant. Luke 1:39:

And Mary arose in those days, and went into the hill country with haste, into a city of Juda; and entered into the house of Zacharias, and saluted Elisabeth. And it came to pass, that, when Elisabeth heard the salutation of Mary, the babe leaped in her womb; and Elisabeth was filled with the Holy Ghost: And she spake out with a loud voice, and said, Blessed art thou among women, and blessed is the fruit of thy womb. And whence is this to me, that the mother of my Lord should come to me? For, lo, as soon as the voice of thy salutation sounded in mine ears, the babe leaped in my womb for joy.

The notion that abortion prior to "quickening" is murder cannot be supported by the Bible. To the contrary, the Bible recommends administering an abortifacient to a wife if her husband suspects her of being unfaithful. Numbers 5:11-29. A priest would administer the abortifacient ("water of bitterness", Num. 5-17-18) and if the woman has in fact been unfaithful, the water would "make your uterus drop, your womb discharge". Num. 5-21,22, and 27.

A distinction between punishments for accidently inducing an abortion (paying a fine) and killing a human being (being put to death) was reflected in the earliest known legal codes, including the Code of Hammurabi. Similarly, the law of Moses could distinguish between aborting a fetus and injuring a human being:

21:22 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. 21:23 And if any mischief follow, then thou shalt give life for life, 21:24 Eye for eye, tooth for tooth, hand for hand, foot for foot, 21:25 Burning for burning, wound for wound, stripe for stripe. Exodus 21:22-25.

Of course, the God of Israel was not a "pro-Life" god: God could sometimes call for the death of innocent children and even the unborn. God's judgment of the people of Samaria was that they will "fall by the sword, their little ones will be dashed to the ground, their pregnant women ripped open". Hosea 13:15-16. Dozens of similar passages can be quoted; the Holy Scriptures were not written to provide a simple and vapidly consistent set of arguments for contentious people to debate with one another.

At some point, the ancient Israelites rejected the practice of human sacrifice, and in particular, child sacrifice. The story of God's command to Abraham to sacrifice his son, Isaac (Genesis 22), and God's subsequent order to spare Isaac, may reflect a break with archaic religious practices. Such practice lingered, however, in the historical period recorded in the Bible. The great king Solomon is said to have erected a temple to Moloch:

Then did Solomon build an high place for Chemosh, the abomination of Moab, in the hill that is before Jerusalem, and for Molech, the abomination of the children of Ammon. I Kings 11:7
The name "Moloch" or "Molech" was used to describe a god who required the sacrifice of children by burning them in a bronze idol. While the priests of Yahweh opposed the practice ("And thou shalt not let any of thy seed pass through the fire to Molech, neither shalt thou profane the name of thy God: I am the LORD". Leviticus 18:21) it apparently continued through the time of Jeremiah. See 2 Kings 23:10.

Likewise, the early Christians found themselves in conflict with the prevailing Hellenic views regarding contraception and abortion. As the story of Oedipus indicates, infanticide was an integral part of Hellenic culture. Early Christians vigorously opposed infanticide and also contended that an unborn (late term) child was human and to kill it would be murder. Where precisely human "life" begins, however, has been the subject of some development over time. The notion that life begins at conception is relatively new.

The Roman Catholic Church

The Roman Church has always opposed abortion and contraception, but it has not always employed the "pro-Life" slogans and rationalizations which predominate today. The emphasis and justification for the early Church's anti-abortion doctrines was anti-sex (illicit sex and prostitution) rather than "pro-Life". The Church has several times shifted legal positions regarding whether early term abortion constitutes "homicide" or murder requiring automatic excommunication.

Following Aristotle, all the church Fathers from Augustine and Thomas Aquinas recognized a distinction between a "formed" or "animated" fetus (from "anima", the Latin word for "soul") and a pre-human embryo. Aristotle held that a newly-conceived embryo lacked sufficient form to contain a rational soul. Aristotle guessed that the embryo attained such form at approximately 40 days for males, and 80 days for females, after conception. (The empirical basis, if any, for this hypothesis, and any explanation of how Aristotle could tell which developing embryos were male, and which were female, has been lost. Today such distinctions are cited as evidence of the Philosopher's misogyny). I should point out that the theory that an early term embryo lacks of a "soul" was not employed by theologians to justify or approve of abortion or contraception. Rather, they used it legally to determine when abortion was murder, and thus a crime requiring the most serious ecclesiastical punishment: excommunication.

For most of the Church's 2000 years of existence, early term abortion was not "murder", and human "life" did not begin at conception. One brief exception occurred during the Renaissance. During the Reformation and Counter-Reformation, one great thorn in the side of the Church was the vast corps of prostitutes in Rome to service the supposedly-celibate clerics and monks. There were so many prostitutes in Rome in 1566 that when Pius V ordered them to be driven out, they formed such a large part of the population of the city that its economy collapsed, and the pope had to relent. In 1588, Sixtus V, in the bull Effraenatam, equated contraception with murder and threatened with excommunication and the death penalty those who gave others or themselves took contraceptive potions ("cursed medicines"), as well as those who carried out an abortion, from the moment of conception on. The Church's administration was immediately inundated with a tidal wave of petitions seeking clemency from the harsh rule. After the death of Sixtus V in 1591, his successor, Pope Gregory XIV, revoked Effraenatam as soon as he took office, and returned the Church to the position that abortion was not punished with excommunication until after the eightieth day.

Conception became the moment when human "began" in Catholic doctrine only when Pope Pius IX decreed it in 1869, not coincidently shortly after announcing that the Immaculate Conception was henceforth dogma, by his "infallible" decree. Pius IX was quite a curmudgeon, a position no doubt forced upon him by his historical circumstances. In 1864 he issued the encyclical Quanta cura to which was appended the "syllabus of errors" which denounced liberalism, nationalism and the separation of church and state, concluding with this "error":

80. The Roman Pontiff can, and ought to, reconcile himself, and come to terms with progress, liberalism and modern civilization.

In the end, the Pope could, and did have to come to terms with the loss of temporal authority. Despite efforts by the French, under Napoleon III, to prop up the Pope's little Italian kingdom, his armies were defeated by volunteers under Giuseppe Garibaldi and Rome was annexed to the new knigdom of Italy in 1870, and the Church's territorial authority was reduced to a cluster of buildings known as the Vatican. Pius IX was the last pope to rule as a temporal monarch over Rome and the "Papal States".

In short, the Roman Church has, thoughout its history, opposed contraception and abortion in favor of celibacy and an abhorrence of sex as a pleasurable activity. The current "pro-Life" doctrine, however, has emerged relatively recently, in connection with the new Cult of the Virgin Mary, and as a reaction to "progress, liberalism and modern civilization."

The Common Law, and Nineteenth Century Criminal Abortion Statutes

English common law was clearly influenced by Church law, if not entirely persuaded of the accuracy of Aristotle's theory of ensoulment. Since there was no empirical basis (or lawfully admissible evidence) for the assertion that a child is "alive" 40-80 days after conception, English common law relied on the phenomenon of "quickening": the first detectable movement by the child in the womb. Abortion of a late term, "quick" fetus, was murder, but inducing a miscarriage prior to quickening was either manslaughter or not an independent crime at all, but rather a compensable tort (on the model of the Bible or the Code of Hammurabi).

Most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law. In 1803, England's first criminal abortion statute, (Lord Ellenborough's Act, 43 Geo. 3, c. 58) made abortion of a quick fetus a capital crime, but provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction.

One "problem" with the quickening distinction is that it empowered women to decide when their child was "alive" and thus when they lost the choice to abort. This has obvious disadvantages from the perspective of a patriarchal society, and as soon as science started developing alternatives to a woman's testimony as evidence of the existance and status of a pregnancy, "quickening" distinction came under attack.

In 1857, the American Medical Association produced a report attacking the "quickening" distinction and urging that abortion be made a crime at all stages of pregnancy. The AMA report, and subsequent lobbying for stricter abortion statues, was undoubtedly influenced by the fact that most abortions at the time were performed by unlicensed, untrained midwives and other amateurs, under conditions which risked the life of the mother. From the 1860's to the end of the century, most of the States adopted abortion statutes which made inducing an abortion any time after conception a crime.

As the Roman Church discovered in the Renaissance, however, it is one thing to make abortion a crime and quite another to put a stop to it. By the time of Roe v. Wade, the AMA had abandoned its Victorian-era posturing against illicit sex, and acknowledged that abortion procedures had become relatively safe --safer than taking the child to term-- but held fast to the professional stance that "that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians".

The United States Supreme Court decision in Roe v. Wade adopted a "trimester" framework for balancing the various interests of the parties, that is, the mother's right the privacy as protected by the Due Process clause of the Fourteenth Amendment, the State's interest in promoting health, and the State's interest in protecting the life of the unborn child. The framework limited state laws as follows:

  • No state interference during the first trimester of pregnancy
  • State regulation allowed after the first trimester to protect the health of the mother
  • State regulation allowed during the third trimester (i.e., after "viability") to protect "fetal life" except when abortion is "necessary to preserve the life or health of the mother."

While the opinion purports to use "viability" as a scientific replacement for both the Aristotelian theory of "ensoulment" and the mother's testimony as evidence of "quickening", the Court in Roe establishes an arbitrary legal threshhold of viability at 6 months, which coincides with the typical time of "quickening", and thus implicitly rests on the common law experience with the "quickening" distinction.

Quick"en*ing, n.

1.

The act or process of making or of becoming quick.

2. Physiol.

The first motion of the fetus in the womb felt by the mother, occurring usually about the middle of the term of pregnancy. It has been popularly supposed to be due to the fetus becoming possessed of independent life.

 

© Webster 1913.

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