In the earliest written sources, abortion is not considered as a general category of crime. Rather, specific kinds of abortion are prohibited, for various social and political reasons. In the earliest texts, it can be difficult to discern to what extent a particular religious injunction held force as secular law. In later texts, the rationale for abortion laws may be sought in a wide variety of fields including philosophy, religion, and jurisprudence. These rationales were not always included in the wording of the actual laws.
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Legal opinions
The earliest texts almost uniformly preach respect for human life; but a reading of these passages must be balanced with passages meting out harsh and often horrific punishment for social transgressions of lower caste individuals against the upper castes. In ancient India, a sudra could be horribly punished for the crime of learning the Vedas; and in Rome, the Twelve Tablets were published only in response to "demands of the people".
The value of a human being varied according to rank and social circumstances. (Thus, even an upper class male might be considered a mere boy until well into his later years; with the term "boy" having a meaning similar to slave.) A slave woman might be punished by her master if he disapproved of her abortion, regardless of who the father was, because she destroyed his property. The monetary value of human beings is reflected in the value of fines paid for personal crimes, which varied in accordance both with the rank of the offender and of the victim. In Lev. 27:6, an infant of one month or less has no monetary value.
Religious law
There are no prohibitions of abortion in the Confucian texts, nor mention of it in the earliest Vedas. While there is no direct mention of abortion in the Bible, Exodus 21:22–24 states that a man who causes a woman to miscarry may be fined. The same passage states in contrast, that murder is punishable by death. Most Jewish writers allowed abortion to save the mother's life, and hesitated to impose civil laws against abortion, feeling that most women would ignore them. The Talmud deems the fetus to be part of its mother and has no "juridical personality". There is also no direct mention of abortion in the Qu'ran, although based on Qur'an 23:12–14, most jurists agree that abortion is acceptable up to 120 days after conception.
While the earliest Vedas have no mention of abortion, later scripture condemns it as one of the vilest of crimes, resulting in loss of caste and thus loss of liberation from samsara. Despite such harsh condemnation, the penalty for abortion is the withholding of water libations from the woman; while the abortionist may lose caste and, with it, opportunity for liberation from samsara.
In Buddhism, the oldest Theraveda texts condemn abortion but do not prohibit or prescribe penance. In later texts, a Buddhist monk who provides abortion is "defeated" – excluded from the religious community – if the fetus dies. If the mother dies but not the fetus, this is only a grave sin, because he had not intended to kill her.
Generally, most texts allow abortion to save the woman's life.
Ecclesiastical courts in Europe
Following the decline of the Roman Empire, Ecclesiastical courts held wide jurisdiction throughout Europe. Their purpose was to instruct and correct, rather than to punish, and therefore imposed sentences of penance, rather than corporal punishment. The Church treated the killing of an unformed or "unanimated" fetus as a matter of "anticipated homicide", with a corresponding lesser penance required, while late abortion was homicide.
One of the earliest Churchmen, Tertullian, believed that the soul of the fetus is generated by the parents along with the generation of the new body. This viewpoint, later known as traducianism, was deemed unsatisfactory by St. Augustine, as it did not account for original sin. Basing himself on the Septuagint version of Exodus 21:22, he deemed abortion, while deplorable, to be less than murder. He also affirmed the Aristotelian view of delayed hominization. St. Fulgentius opposed abortion even for the purpose of saving the woman's life, saying: "But let the child be brought to term and baptized and saved from perdition."
The Venerable Bede, in the Penitential ascribed to him by Albers c. 725, upheld the 40-day distinction, prescribing a one-year penance for abortion before the 40th day, and added that it makes a difference whether the woman was simply in financial desperation, or had conceived out of "harlotry". After 40 days the penance was 71/2 years, the same as for homicide.
In the twelfth century, in the Decretum Gratiani,
Gratian, and the medieval canon law generally, merely followed the prevailing scientific view of the period that quickening represented the time at which the fetus was "vivified," defined as the time at which it was "ensouled."
A century later, St. Thomas Aquinas upheld delayed hominization: "seed and what is not seed is determined by sensation and movement."
In 1588, Pope Sixtus V adopted a papal bull adopting the position of St. Thomas Aquinas that contraception and abortion were crimes against nature and sins against marriage. This verdict was relaxed three years later by Pope Gregory XIV, who pronounced that abortion before "hominization" should not be subject to ecclesiastical penalties that were any stricter than civil penalties (Codicis iuris fontes, ed. P. Gasparri, vol. 1 (Rome, 1927), pp. 330–331).
Secular law
The Code of Hammurabi, ca. 1760 BC, contains the earliest known laws about miscarriage caused by assault, and seems intended to protect the rights of the father. Articles 209–214 required monetary compensation in accordance with the social rank of the prospective mother, and a separate fine if the woman dies. The Zend Avesta imposes a sentence of Peshôtanu (200 lashes) on a woman who, out of fear of discovery, "brings on menses" when conception occurs out of wedlock, with no mention of a penalty for the male. The Code of the Assura, c. 1075 BC has penalties for several different types of abortion crimes: if a woman aborts against her husband's wishes, if a man causes an abortion in any woman at the first stage of pregnancy; if a man causes an abortion in a harlot. In the first case, the woman is to be crucified; in the second, the man is fined two talents; and in the third, the man is to make restitution for a life.
While there is no comprehensive review of property rights law in the Old Celtic Law, we do know that a husband could divorce his wife in the case of abortion.
While there were no laws against abortion in Ancient Rome, the Twelve Tables did allow for infanticide through exposure in cases of unwanted female newborns, and mandated that children born deformed also be exposed. In 211 AD, at the intersection of the reigns of Septimius Severus and Caracalla, abortions which violated the father's rights or the mother's duties were punished by temporary exile.
The Visigothic Code had a system of punishments similar to that of the Zend Avesta, with 200 lashes for a woman causing her own abortion, or for a male slave performing an abortion on a freeborn woman, but with various fines in all other circumstances.
In 9th century England, King Alfred's laws laid down the wergeld to be paid in compensation for various murders: If a man slay a woman with child, he shall pay full wergeld for the woman, and half wergeld for the dead fetus, in compensation for the husband's material loss.
In the Middle Ages, German women were allowed to expose their newborns.
English common law
Starting with Leges Henrici Primi, around 1115, abortion was treated as a misdemeanour prior to "quickening", accruing a penalty of 3 years' penance, or as a "quasi homicide" after quickening. It is believed that abortion cases were usually heard in ecclesiastical courts, which dealt with matters of morality, rather than in secular courts, which dealt with breaches of the King's peace. The punishment for the capital crime of homicide was therefore not applied. Drawing on William Staunford, Edward Coke first formulated the born alive rule in Institutes of the Lawes of England, drawing on the established definition of Murder in English law that the victim be "a reasonable creature in rerum natura. This formulation appeared in William Blackstone's commentaries and in Bouvier's Law Dictionary. Henry Bracton considered abortion to be homicide.
Modern codification
Some have claimed that scientific knowledge of human fertilization, was used to justify the stricter abortion laws that were codified during the nineteenth century. This ignores other, perhaps more salient, aspects of the history of abortion law. The historical debate about vivification, animation, and delayed hominization were debates about when the fetus could be considered a "reasonable creature" – a human being – not simply when it had physical life; and this is what quickening was said to signify.
The process of criminalizing abortion, however, can be placed in a broader context whereby professional associations began to employ licensing procedures as a means of driving "irregulars" out of practice in fields as diverse as medicine and architecture. Toward the end of the eighteenth century, medical associations began to co-operate "in vigorous measures for the suppression of empiricism, and the encouragement of regular practitioners" – that is, for the suppression of medicine based on practice, such as herbalism and midwifery, and the promotion of medical science based on theory – and also began to assist in the regulation, restriction, and commercialization of reproduction products such as pessaries, condoms and abortifacients. Science-based medicine at the time was based on humorism, a theory that had not changed since Galen's day, and relied to some extent on dangerous practices such as bloodletting, purging, and the extensive use of mercury, a toxin. Public backlash forced a temporary retreat, with licensing regulations being repealed during the next few decades.
In 1857, a more successful campaign was launched. The newly formed American Medical Association
"were motivated to organize for the criminalization of abortion in part by their desire to win professional power, control medical practice, and restrict their irregular competitors, including homeopaths, midwives, and others. Hostility towards feminists, immigrants, and Catholics fueled the medical campaign against abortion and the passage of abortion laws by state legislatures.
Despite a flurry of well publicized inquests beginning with the turn of the nineteenth century, prosecutions for abortions usually proceeded only in response to a woman's death. In addition to the abortionist, unmarried men whose lovers had died were increasingly prosecuted as well, the reasoning being that only his refusal to marry could have driven a woman to abortion.