Alito’s Leaked Draft Majority Opinion and the Medieval History of Abortion

Posted by Sara M. Butler, 13 May 2022.

Discovering that the Supreme Court of the United States of America, now dominated by an ultra conservative majority of chiefly white men, is planning to overturn Roe v. Wade (1973) was not as unexpected as one might imagine. At least, for any woman who has been living in this country for the past decade it was something we could see coming. For those who work at religious institutions or in conscientiously-Christian businesses, the ruling in Burwell v. Hobby Lobby (2014) already took away our right to use our health plans to pay for birth control.[1] (This happened to me when I worked at Loyola University New Orleans, a Catholic university). Access to a legal abortion did seem like the next logical provision to disappear.

What was surprising, however, is to discover that Justice Samuel Alito’s leaked draft majority opinion (it can be accessed here) grounds his stance in the medieval legal treatise Bracton and a purported continuous prosecution of abortion dating back to the thirteenth century. I’m sure I was not the only scholar who has worked on the subject of abortion in history to be shocked by such a deliberate misrepresentation of the historical facts. Let’s begin with some of the problems with these assertions.

First, let’s tackle the reliability of the legal treatise known by its short-hand Bracton as a guide to medieval law. While all the credit for writing On the Laws and Customs of England is far too often attributed to its final author, Henry of Bratton, the legal treatise was in fact written in stages over a forty-year period in the thirteenth century by a succession of three justices: Martin of Pattishall (d. 1229); Patishall’s clerk, William of Raleigh (d. 1250); and Raleigh’s clerk, Henry of Bratton (d. c. 1268). This massive project was badly needed: common law was unwritten, and the only other legal treatise out there – Treatise on the Laws and Customs of the Kingdom of England, often called simply Glanvill and potentially penned by Ranulph de Glanvill (d. 1190), chief justiciar of England under Henry II – focuses chiefly on procedure and writs, rather than the laws themselves. However, in creating the ultimate textbook of English law, Pattishall, Raleigh and Bratton far too often filled in the gaps using bits from Roman law, or presented the law as they wished it could be, rather than how it actually worked.[2] As a result, as anyone who works on medieval English law knows well, the treatise is merely a convenient starting point for the study of thirteenth-century law. In order to figure out what the law actually was in medieval England, one needs to look at how law worked in practice.

Second, let’s talk about what we mean by the word “abortion.” There are a few assumptions made when we use that term today. We assume that the abortion took place before the fetus was viable, usually between the 24th and 28th week of pregnancy, and that the woman made the choice to terminate a pregnancy. None of this resembles the medieval understanding of abortion at common law.

As Justice Alito acknowledges in his leaked draft, Bracton takes a firm stance on abortion. The authors write:

If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide.[3]

Granted, what is being described as abortion here is not the same as what we call abortion today. Bracton speaks of the fetus being “formed” or “quickened.” Language of this sort speaks to the question of when life begins. Bracton adopts an Augustinian perspective – that is, the treatise espouses the view supported by Saint Augustine of Hippo (d. 430), but founded on an Aristotelian notion of conception – in which the fetus very gradually evolves into humanity. The embryo exists in a vegetative state; once it develops into a fetus, it takes on animalistic characteristics. It is only after the fetus assumes a fully human form, meaning it has limbs and a recognizably human structure, that it becomes human. This final stage is referred to as animation, vivification, or more colloquially in England, the quickening. Once it reaches this crucial moment, the fully formed fetus is infused with a rational soul by the hand of God. According to Augustine, and Bracton, it is at this moment that life begins and the fetus can be considered a human being.

When Bracton sided with Saint Augustine on the question of when life begins, he was hopping on the Gratian bandwagon. Gratian’s Decretum (c. 1140), which quickly became the textbook for canon law in the universities, put an end to an ongoing debate in philosophical circles about when life begins. Many others took up the mantle of the Stoic philosophers, arguing that the soul enters the body when the fetus takes its first breath of air. Up until that point, the fetus is not human, nor is it alive.[4] It is noteworthy that no one at the time argued that life begins at conception (let alone “fertilization”). It was not until Pope Pius IX in 1869 – yes, under a Catholic pope – that opinion began to shift in favor of life at conception.

When exactly did this quickening take place?  This part gets a bit confusing. The civilian Azo of Porticus (d. 1202) tells us that vivification depends upon gender: a boy quickens at 40 days, a girl at 80 days.[5] However, because the mother experiences the quickening as the first fetal movements, medical expertise today can pinpoint that definitive moment as happening somewhere between the 18th and 20th weeks of pregnancy.

What all of this means is that when Bracton speaks of abortion, he is talking about an act done to terminate a pregnancy after roughly the 18th or 20th week of pregnancy. Anything done before that (what we would more comfortably refer to as abortion), was considered merely contraceptive, and while contraception was a sin (what wasn’t in the medieval context?), it was not a crime, nor was it even a matter for the king’s courts to address. This difference is critical. According to the CDC, the vast majority of abortions that take place today, are performed at less than 13 weeks’ gestation.[6] The medieval world would not have even called that an abortion.

Of course, we should also acknowledge that Bracton was not the only legal treatise in existence during the thirteenth century, and at least two of the other treatises would seem to suggest entirely different approaches.

The Mirror of Justices (1290s) writes:

Of infants killed ye are to distinguish whether they be killed in their mother’s womb or after their births; in the first case it is not adjudged murder; for that none can judge whether it be a child before it be seen, and known whether it be a monster or not.[7]

(A brief aside: reference to whether the child was going to be a monster speaks to the potentially immoral nature of conception: if the child was the product of adultery, God was thought to mark the child physically so that everyone would recognize it as a product of sin.) 

The Mirror of Justices unequivocally contradicts Bracton, making it clear that an abortion is not considered homicide. This stance is also adopted by Britton, a late thirteenth-century update and abridgement of Bracton, which states:

For an infant killed within her womb, she may not bring any appeal [that is, lawsuit], no one being bound to answer an appeal of felony, where the plaintiff cannot set for the name of the person against whom the felony was committed.[8]

Confidently citing Bracton, while remaining silent about Britton or the Mirror of Justices, seems a little too political a move. How can Alito be certain that abortion was a felony in medieval England when the justices of the era were clearly divided?

More important still, although Bracton addresses two different forms of abortion, the English courts of law were much more concerned with one than the other. Bracton’s concerns are founded on a passage from Exodus 21:22-25:

If man 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. And if any mischief follow, then thou shalt give life for life. Eye for eye, tooth for tooth, hand for hand, foot for foot. Burning for burning, wound for wound, stripe for stripe.

An assault of this nature is not what we normally think of when we use the term abortion. That did not stop Justice Alito from adopting this definition when he purports a continuous line of prosecution relating to abortion dating back to the thirteenth century. A typical medieval case of abortion looks much like this one drawn from the London eyre of 1244:

Sarah, wife of Aubyn le Portour appeals Maud, wife of Walter Buk’ and Stanota her daughter, for that on Friday after Trinity Sunday, 21 Henry III [4 June 1238] they came to her house and beat and ill-treated her, so that afterwards on the feast of the Decollation of St. John the Baptist [29 Aug.] in the same year, she gave birth prematurely to a male child, as a result of that beating.  And that they did this wickedly and feloniously, she offers, etc. as the court, etc. Maud and Stanota come and wholly deny the felony and whatever is against the king’s peace, and strongly deny that they ever beat her.  They say that if she was beaten on the day on which she says she was beaten, and afterwards, fifteen weeks after that day gave birth to a living child, which was baptized and lived for three days, it seems to them that her appeal does not lie.  Furthermore they freely put themselves upon the verdict of the mayor and citizens that they never beat her (Sarah) nor did she give birth prematurely as she says.   Thereupon the mayor and citizens say upon their oath and in the faith in which they are bound to the king, that Maud and Stanota never beat her, nor did she give premature birth to a son.  Therefore it is adjudged that they go quit thereof, and that Sarah be taken into custody for a false appeal.[9]

Over the past twenty years in the archives, I have come across roughly 88 cases of this nature (abortion caused by an assault), spanning the thirteenth to fifteenth centuries. I have yet to discover a case in the king’s courts in which a woman is accused of chemically or surgically inducing an abortion. That does not mean that nobody cared about abortions in the Middle Ages, but the handful of chemically-induced abortions that do survive from the period come instead from the records of the medieval church, indicating that the medieval world was most comfortable with abortion as a topic for discussion between a good Christian and his or her confessor.

When it comes to medieval attitudes towards abortion, what is perhaps more interesting is the empathy we see for family planning, not only from the secular authorities that failed to indict women for pursuing abortions, but also the church. Before he ascended the papal throne, Pope John XXI wrote a highly popular medical treatise entitled Treasure of the Poor. His purpose in writing this treatise was to equip the poor with all the necessary tools to provide their own healthcare from herbs growing locally. In this collection, he includes a long list of early-stage abortifacients, that is herbal compounds intended to bring about a miscarriage. As Robert Martin, M.D., writes in Psychology Today, “John XXI’s medical compendium came remarkably close to recommending an equivalent of the modern contraceptive pill.”[10]

Strangely enough, some medieval saints even specialized in abortion miracles. Irish saints, both Patrick and Bridget, among others, were well known for making unwanted pregnancies disappear, as well as restoring the physical appearance of a woman’s virginity so that no one would know she had ever been pregnant in the first place.[11]

Justice Alito’s draft manipulates the medieval history in order to create a political argument in favor of overturning Roe v. Wade. Jill Elaine Hasday’s recent Washington Post article suggests that his grasp of the early modern history is equally problematic. These intentional misinterpretations of the historical evidence undermine Alito’s “historical argument” to justify such a blatant disregard of women’s constitutional rights. Granted, as an historian, well versed in the long history of women’s oppression and attempts to control women’s bodies, I’m not convinced that history is where we should be looking for the answers. What about science?

If you are interested in reading more about abortion in the Middle Ages, here is a short bibliography:

Butler, Sara M. “Abortion Medieval Style? Assaults on Pregnant Women in Later Medieval England.” Women’s Studies: An Inter-disciplinary Journal 40, no. 6 (2011): 778-799.

Butler, Sara M. “Abortion by Assault: Violence against Pregnant Women in Thirteenth- and Fourteenth-century England.” Journal of Women’s History 17, no. 4 (2005): 9-31.

Elsakkers, Marianne. “The Early Medieval Latin and Vernacular Vocabulary of Abortion and Embryology,” in Science Translated: Latin and Vernacular Translations of Scientific Treatises in Medieval Europe ed. Michèle Goyens, et al. (Peeters, 2008), 377-413.

Lee, Patrick. “Aquinas on Human Ensoulment, Abortion, and the Value of Life,” Philosophy 78.304 (2003): 255-78.

McClanan, Anne. “‘Weapons to probe the womb’: the Material Culture of Abortion and Contraception in the Early Byzantine Period,” in The Material Culture of Sex, Procreation, and Marriage in Premodern Europe, ed. McClanan and Karen Rosoff Encarnación (Palgrave, 2002), 333-52.

Mistry, Zubin. Abortion in the Early Middle Ages (York Medieval Press, 2015).

Müller, Wolfgang P. The Criminalization of Abortion in the West: Its Origins in Medieval Law (Cornell University Press, 2012).

Riddle, John M. Eve’s Herbs: A History of Contraception and Abortion in the West (Harvard University Press, 1999).

Featured image: Presentation of twins in Der Rosengarten (“The Rose Garden”), a standard medical text for midwives published in 1513. Public Domain. Wikipedia.


[1] Burwell v. Hobby Lobby (2014) ensured that for-profit institutions could claim an exemption already available for religious institutions, not to provide FDA-approved contraceptive methods to their employees normally available through their health plans. See “Burwell v. Hobby Lobby Stores,” Oyez, www.oyez.org/cases/2013/13-354 (accessed 13 May 2022).

[2] To learn more about the origins and goals of the writing of Bracton, see Thomas McSweeney’s excellent Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (Oxford University Press, 2019).

[3] Henry de Bracton, De Legibus et Consuetudinibus Angliae, ed. George E. Woodbine, trans. Samuel E. Thorne (Belknap Press of Harvard University Press, 1968), vol. 2, 341.

[4] This continues to be the stance held in the Jewish faith concerning life and a woman’s right to abortion.

[5] Wolfgang P. Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law (Cornell University Press, 2012), 1-2.

[6] Center for Disease Control and Prevention, “Reproductive Health,” https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm (accessed 13 May 2022).

[7] William Joseph Whittaker, ed., Mirror of Justices (Selden Society, vol. 7, 1893), 139.

[8] Francis Morgan Nichols, ed., Britton (Clarendon Press, 186), bk. 1, ch. 25, no. 7, 95-96.

[9] Helena M. Chew, Martin Weinbaum, eds, The London Eyre of 1244 (London Record Society, v. 6, 1970), no. 124, 50.

[10] Robert D. Martin, M.D., “The Pope who Advocated Birth Control: Pope John XXI prescribed an herbal forerunner of the pill,” Psychology Today https://www.psychologytoday.com/us/blog/how-we-do-it/201906/the-pope-who-advocated-birth-control (access 13 May 2022).

[11] Maeve B. Callan, “Of Vanishing Fetuses and Maidens Made-Again: Abortion, Restored Virginity, and Similar Scenarios in Medieval Irish Hagiography and Penitentials,” Journal of the History of Sexuality 21.2 (2012): 282-96.

2 comments

  1. I’m so glad I found this site and your materials. I have always been interested in English legal history but the materials have been hard to find until the present internet age and, while still not easy, sites like yours are a huge improvement. So thanks for that.
    It has struck me upon reading Alito’s opinion that the materials and historical analysis he puts forward lead to the opposite conclusion from the one he draws – especially when the historical blanks that he deliberately leaves out are filled in. There is a huge dearth of any English case law upon the subject and my feeling is that the medievals turned a blind eye to the private affairs of pregnant women. Were ecclesiastic courts more involved perhaps?
    Another piece of dishonesty Alito engages in is to try to seek positive rights in English common law – which is not a rights based system. Of course the rights protected are there but are inverted so to speak. For example a prosecution for common assault simply looks at the facts and applies the law to those facts. The right not to be assaulted by other people is never directly referred to but is obviously implicit in the policy of the law.
    And then all those 19th statutes Alito cites were created just because, at that time, some people wanted to change the customs and practice which had subsisted for centuries – namely that early stage pregnancy is a private matter into which the state does not seek to be involved.
    Thank you, Oliver James

    Like

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