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Abortion, Doctors and the Law Published online by Cambridge University Press: 26 October 2009
This chapter focusses, against the background of the common-law offence of abortion, on the enactment of the first statutory prohibition of abortion in Lord Ellenborough's Act 1803 (43 Geo III c. 58).
Abortion and the common law
During the late seventeenth, the whole of the eighteenth, and early nineteenth centuries, English and American women were totally free from all restraints, ecclesiastical as well as secular, in regard to the termination of unwanted pregnancies, at any time during gestation.
(Cyril C. Means Jr)Abortion and the ecclesiastical courts 1200–1600
Whether the common law prohibited the destruction of unborn life has been, and remains, a controversial question, an exhaustive examination of which would be beyond the scope of this chapter. However, it will be contended here, pace Professor Means, that the weight of available authority supports the view that the common law prohibited abortion, at the latest, after the fetus had become ‘quick’ or ‘animated’. Animation was believed to occur when the fetus ‘quickened’ in the womb. An incident of the second trimester of pregnancy, quickening marks the first maternal perception of fetal movement. In associating the origin of life with quickening, the law betrayed both pragmatic and metaphysical influences. The former concerned the need to prove, in any prosecution for abortion, that the woman had been pregnant and that the fetus had been killed by the abortifacient act. Evidence of quickening would clearly facilitate prosecution. The metaphysical influence upon the law was the popular theory, originated by Aristotle and perpetuated by Galen, that human life began at the point of ‘animation’.
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