Abortion in Early Modern Italy by John Christopoulos

Author:John Christopoulos [Christopoulos, John]
Language: eng
Format: epub
Tags: History, Europe, Italy
ISBN: 9780674249387
Google: cw_gzQEACAAJ
Publisher: Harvard University Press
Published: 2021-01-15T01:11:47+00:00

Criminalizing Abortion

“Aborting fetuses is such an enormous and impious act that every law, every doctor, and all reason condemns it and punishes it severely,” wrote Scipione Mercurio.4 This was not exactly true. While all states likely held procured abortion and miscarriage caused by assault to be crimes deserving punishment, they did not agree on what exactly abortion meant, whether and how they would issue abortion legislation, or what penalties offenders merited. In the sixteenth and seventeenth century, the criminalization of abortion was a matter of contention.

State legislation offers a starting point for examining the framing of criminal abortion. Statutes were a standard and somewhat uniform type of state legislation issued regularly by cities, towns, communes, republics, and kingdoms from the Middle Ages onward.5 As a strategy for state building, the reiteration and elaboration of criminal statutes during the sixteenth and seventeenth centuries gave civic authorities the opportunity to amend, cancel, and add to their existing laws. In some states, statutes published in the sixteenth and early seventeenth centuries remained official codes of law for over a century.6 Homicide, different types of violence, carrying arms, poisoning, theft, kidnapping, slander, defloration and rape, adultery, and sodomy, to name the most common, were criminal offenses punishable by the state. Abortion, however, appears in only a handful of early modern Italian criminal statutes. Of these, some made abortion a homicide, while others treated it sui generis, as a crime of its own.7 Within these two classifications, important distinctions pertained notably to penalties, which ranged from fines—that fed state coffers or charitable institutions—to exile and corporal or capital punishment.

In keeping with canon law, most secular statutes that criminalized abortion calibrated penalties according to the fetus’s level of development. The sixteenth- and early seventeenth-century statutes of Milan, Genoa, and Benevento followed the canonical formulations framing the abortion of an animated fetus as graver than that of a preanimate one.8 In these states, the abortion of an animate fetus was a capital crime, and the procurer was to be executed. For example, the statute of Benevento, part of the Papal States, specified that the abortion of an animate fetus was equivalent to infanticide, and the “mother,” along with any accomplice, was to receive capital punishment. Alternatively, the statutes of Perugia, Senigallia, Macerata, and Monterubbiano did not use the terms “animate” and “preanimate” but rather wrote visual cues into their abortion laws. In Perugia, a person causing the death of an “obviously pregnant woman” was to be twice punished, once for the death of the woman and once for the unborn.9 The statutes of Senigallia and Monterubbiano stated that the abortion of a fetus when the woman was at least “three months pregnant” was a crime.10 The visual markers “obviously pregnant” and “three months pregnant” likely meant the woman had to be showing, which also meant the fetus was advanced in its development and, therefore, animate. That these qualifiers were written into laws suggests legislators recognized that pregnancy was difficult to detect in the first few months and that this was legally relevant in the criminalization of abortion.

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