Under the Old Regime, abortion does not exist as a separate legal category. He is no less practice and is criminalized when associated with sexual transgression. How to make the story of an unthought and a concealed practice ?
On September 28, 2024, Pope Francis declared before journalists: “ An abortion is a homicide, the doctors who do this are, if you allow me the expression, a hit ». Such a declaration is part of a theological tradition that can be trained to the fathers of the Church, and which does not offer reflection on abortion in itself before the XVIe century, often confusing it with infanticide, parricide, even homicide in general. Laura Tatoueix’s reflection on the history of abortion is developed, in the first place, from the cultural conditions constituting the framework of practices.
In fact, the pope ignores the debates that crossed the Church. On the one hand, theologians and councils, synodal statutes and manuals of confessors, have historically distinguished inanimate and animated fetus-that is to say endowed with a “ soul Human. Only the latter’s homicide was considered a crime. If the limit of animation was arbitrarily, and apart from any scientific knowledge, fixed at 40 days (even though it lacked any way to date the conception), we see that taking into account this distinction, reassessed in the light of scientific developments, could change the discourse of the Church without constituting a total denial. That said, the Church has always feared that the slightest concession appears as a possible legitimization of abortion, it has therefore oscillated between acceptance and repression of several conciliatory practices, be it the homicide of inanimate fetus or, for living newborns, the practice of a baptism or an overhead supposed to assure them at least eternal life and lighten the crime. On the other hand, from the second half of the XVIe A century, Jesuit casuistics introduced a reflection on special cases – notably linked to the mother’s social or medical situation. Again, the Pope ignores this tradition – which was also stigmatized as soon as it is formulated.
Besides the theory, there is a practice: according to the World Health Organization, between 39,000 and 47,000 women die each year from a Abortion non -medical. The uncertainty of the figure stresses that today abortion is secrecy and remains a difficult practice to understand. This difficulty is even stronger for old eras.
An unspeakable practice ?
How to make the story of a notion which does not exist, so to speak, not clear in the eyes of men and women of the past, who do not name it as we ? Theologians and lawyers do not distinguish infanticide and abortion ; Women almost never speak of abortion, but evoke a will to “ make your fruit “,” evacuate “, Or even (in what may look like ignorance or denial of pregnancy) of” go back the rules ». And how to make the story of a hidden practice ? A historiographical tradition has long concluded that the abortion is nonexistence under the Old Regime, considering that the absence of traces could be understood as the sign of respect for religious dogmas.
If historical demography had already concluded that the weakness of illegitimate births coupled with the importance of illegitimate sexuality should have been translated by the use of contraceptive and/or abortive procedures, no French study existed which articulated on this subject a history of crime and a history of the body, a history of the emergence of a notion and that of a practice. This is all the merit of the book of Laura Tatoueix to convince us that it is possible, without teleology, to track down the forms in which is thought and experienced what we call abortion, before it says as such. Unnameable, practice is nonetheless and contemporaryes were aware of ites. The scarcity of judicial cases even testifies to a certain social tolerance and (despite the rigor of the doctrine) of a relative tolerance of the institutions.
Henri’s edict IIor the presumed intention
Beyond the religious definitions of the sin of abortion, the work retraces the evolution of secular legal norms and their use. Never treated in itself by the legal literature, crime is amalgamated with others: crime of an IDPRES against a pregnant woman, crime of poisoning, parricide, suppression on both sides (murder of a child just after birth – called infanticide from the end of XVIIe century). The reason for this lack of specification seems to be linked to the difficulty of proving the crime of abortion and in medically characterizing it so as to then constitute jurisprudence.
The judicial life of abortion rests above all on an edict of 1557 (reaffirmed in 1586 and 1708) which organized the condemnation not of voluntary homicides against a fetus (most often impossible to prove), but women “ renowned Homicides if their child is dead and if they have hidden their childbirth and pregnancy by omitting to make the declaration. The edict focuses on the pregnant women themselves, excluding the main responsibility for the parents, but including abortion/trices (doctors, surgeons, apothecaries, matrons, etc.). Its implementation testifies to a secularization of the law, firstly because the absence of proof of baptism, which is part of the criteria of the edict, seems to have most often not been mentioned in practice, then because it replaces the distinction between animated fetus and animated a focus on the criminal intention (presumed) whatever the state of the fetus, finally, because it makes the deletion of a royal case continue to treat certain cases of priests accused).
A history of judicial practices
Insofar as abortion is not a judicial category under the Old Regime, it is only identified by passing by the forms of criminalization defined by the edict of Henri II (concealment of pregnancy and deletion on both sides). Laura Tatoueix works from 50 procedures: 38 are carried out in the name of the provisions of Henri’s edict II And support in the same way abortion and infanticide, although the specific question of abortion can arise in the trial, without its reality being proven, however.
In the case of dead children, but born in the long term, infanticide can be presumed, or proven if the body carries clear brands. In the case of fetuses which were not born in the long term (miscarriage or abortion), if there was no declaration of pregnancy, women can argue that it could have been made in the remaining time of unfinished pregnancy: the presumption is therefore impossible (unless admitted or clear testimony) and the experts are powerless to say whether the fetus has lived or not. If the edict provides for the death penalty, in practice the judges therefore rather pronounce enlargements or suspend the judgment by a “ more widely informed (With or without release, the work does not say it). Accused women are girls or widows who have not declared their pregnancy. The abortion of married women does not exist for the justice of the old regime ; There is no crime of abortion that is associated with sexual transgression.
The archives have mainly preserved the trace of the accusations against women from disadvantaged circles. Their pregnancy is often from a asymmetrical and/or violent relationship (the sire that can be the master, the priest, the rapist), including incest cases. In addition, some extraordinary procedures target the abortionists and abortions: from the Bastille archives, and by the Arsenal Chamber as part of the poisons affair between 1679 and 1682, they left traces there until 1711. They reveal an appeal to abortion which crosses all social strata and also sometimes affects married, but adulterous women.
The innovations of the second XVIIIe century
In the second half of the XVIIIe century, the edict of Henri II is under the joint fires of several criticisms. We first denounce its ineffectiveness: those who fear depopulation are concerned about what an edict supposed to dissuade women from committing a crime on their child born or to be born is accompanied by what is believed to be a growth of abortions and infanticides. A reflection on the social conditions of the crime makes it possible to try to understand the reasons pushing women into the act: influenced by Beccaria and taking over an already open reflection XVIIe A century by Pierre Bayle, reform jurists underline the part that the negative representations brought on illegitimate pregnancies take in abortion practices which therefore aim to preserve honor.
The redefinition of the crime is above all influenced by the renewal of the “ legal medicine (Expression that appeared in 1777). From 1732, the corpses of Avortons were opened. If the experiments carried out on the bodies do not however allow to answer the question of whether a fetus released before term has breathed and may therefore have been homicidated, the reflection carried out on the viability of the fetus makes it possible to distinguish abortion and infanticide. In the penal code of 1791, the two concepts are treated in a distinct manner.
The book readily adopts the prospect of a history of ideas, at the risk of crushing the divergences and intellectual conflicts linked to precise social and institutional positions, proposing a somewhat linear history where one regularly enters more secularization and space made to science, more empathy. But it is in the articulation between the procedures and the practices that he turns out to be particularly effective.
As close as possible to female experiences
We do not have first -person sources, likely to grasp the intimate experience, including all stranded and silent attempts. Abortive practices (rarely mechanical, often drug or even magic) are especially rarely effective: all the women who have tried to cause abortion without achieving it and without leaving a trace therefore remain outside the radars of the judicial archives.
These nevertheless allow the author to grasp the causes of abortion. The main one is the preservation of honor, while the question of the non-child of children, or that of the economic difficulty to welcome him, appear badly. L. Tatoueix also underlines the invisibility, in sources, of prostitutes, however particularly exposed to the risk of unwanted pregnancies.
In hollow, the history of illegitimate sexualities also draws that of the limitation of legitimate fertile fertiles, not by abortion, but by forms of abstinence or withdrawal, impossible for women who are found on the bench of the accused for suppression on both sides and which are marked by hierarchical relations. The nature of these relationships, the vulnerability to which an illegitimate pregnancy exposes women, the necessary referral to abortion or abortioners (solidarity or mercantile), makes the abortion the ultimate point of a continuous chain where the body of women is abused and largely subtracted to their own desire and control. Admittedly, certain women (especially in favored environments) can be the cause of their abortion, this is not enough for the author to approve readings which make it a space of agency. The history of abortion is rather the history of religious, moral and male control over female bodies.