The Humanity of the Early Embryo, part 1

John L. Frank writes in a Wall Street Journal Letter to the Editor that the “early-term abortion is not genocide.”  To read the entire letter, go here:  Mr Frank’s letter is about the University of Notre Dame’s invitation to President Barak Obama to deliver the commencement speech at this years graduation.  In particular, Mr. Frank is responding to William McGurn’s op ed article on the matter (see  His reasons for not regarding the early human embryo as a human person represent some of the contemporary thinking on this issue.  I would like to demonstrate why I think his reasons fail and the early human embryo should be treated as a full member of the human species with the right to not be harmed.

Mr. Frank begins by asserting that the Catholic Church did not regard the embryo as a human person for most of its recorded history.  Instead, according to Mr. Frank, early church leaders like Augustine, Aquinas, Pope Gregory XIV endorsed Aristotle’s concept that a new person does not exist until the first noticeable movements in the womb, which is popularly known as “quickening.”

Problems begin right away.  Frank depends upon the historical analysis of an Anglican scholar named G. R. Dunstan who claimed that absolute protection for the embryo in Christian thinking is a creation of the nineteenth century. This conclusion is completely without merit.  Dunstan’s conclusions are called into question by the work of David Albert Jones, whose book The Soul of the Embryo (London, UK:  Continuum, 2004), shows that the protection of the embryo at all stages is actually the original understanding of the Christian Church.

The earliest witnesses to the Christian ethical tradition regarding the unborn come from a variety of works. The earliest work is the Didache, otherwise known as the Teaching of the Twelve Apostles. This work dates to the first century AD, and states:“You shall not kill a child by abortion nor kill it after it is born (Didache 2:2). The second century Letter of Barnabus, makes the same statement (19.5).Both documents forbid abortion at any stage of development.

In AD 177, the Christian leader Athenagoras wrote in a letter to the Roman Emperor Marcus Aurelius that “those women who use drugs to bring about an abortion commit murder.”Athenagoras also stated that those who obtain an abortion would “have to give an account to God” for what they have done (A Plea for Christians 35.6).  This letter rebuts a rather malicious claim against Christians; namely that Christians practiced child sacrifice. Athenagoras invalidates this urban legend when he states that Christians view both abortion and infanticide as wrong. Twenty years later, the Christian apologist, Tertullian, would make a similar argument:“for us murder is once for all forbidden; so it is not lawful for us to destroy even the child in the womb” (Apology 9:8).

In the early third century, Minucius Felix pointed out that it was pagans and not Christians who treated the unborn with indifference.

It is among you that I see newly-begotten sons at times exposed to wild beasts and birds, or dispatched by the violent death of strangulation; and there are women who by the use of medicinal potions, destroy the unborn life in their wombs, and murder the child before they bring it forth (Octavius 30:2).

During the second or third century, several works pointed out the threat of divine judgment for procuring an abortion.  For example, the Apocalypse of Peter and Apocalypse of Paul both portrayed men and women having to face the children they had aborted. The threat of judgment displayed abortion both as a crime against the child and God. It must be emphasized that abortion was never viewed as an unforgivable sin, since Jesus Christ brought reconciliation for sinners.Judgment awaited those who did not accept the forgiveness available in Jesus Christ.

At the turn of the fourth century, Lactantius wrote that Christians not only were forbidden to kill in ways that were illegal and socially unacceptable, but also in ways that were tolerated and esteemed in the pagan world. This was the case with the strangulation of infants and the killing of unborn children who had yet seen the light of day (Divine Institutes 6:20).

There is also evidence from sermons and letters from the Early Church that particular Christians failed to live up to their high moral principles and participated in abortions.Such instances were met with condemnation.A few examples will suffice. Cyprian of Carthage accused the schismatic priest Novatus of inducing a miscarriage by kicking his wife with his heel (Letter 52 to Cornelius). Similarly, Hippolytus accused Callistus (then bishop of Rome) of recognizing mismatched marriages between high-born women and men of low social status that resulted in abortions:

Women who were reputed to be believers began to take drugs to render themselves sterile, and to bind themselves tightly so as to expel what was being conceived, since they would not, on account of relatives and excess wealth, want to have a child by a salve or by any insignificant person (Refutation of all Heresies 9.7).

In the fourth century, the practice of abortion became endemic among Christians.Instead of condoning it or using an argument that distinguished between killing formed and unformed fetuses, Christian leaders condemned it. For example, Jerome wrote

I cannot bring myself to speak of the many virgins who daily fall and are lost to the bosom of the church, … You may see many women widows before wedded, who try to conceal their miserable fall by a lying garb. Unless they are betrayed by swelling wombs or by the crying of their infants, they walk abroad with tripping feet and heads in the air. Some go so far as to take potions, that they may ensure barrenness, and thus murder human beings almost before their conception. Some, when they find themselves with child through their sin, use drugs to procure abortion, and when (as often happens) they die with their offspring, they enter the lower world laden with the guilt not only of adultery against Christ but also of suicide and child murder (Letter 22:13).

Notice that Jerome condemned the practice regardless of the age of the unborn.  Similarly Ambrose of Milan lamented that “even the wealthy, in order that their inheritance may not be divided among several, deny in the very womb their own progeny” (Hexameron 5.18.58).  John Chrysostom confronted men in his own congregation (married and single) for going to prostitutes.Such men were guilty of not only adultery, but if she became pregnant and procured an abortion, they were now doubly guilty of murder as well. Chrysostom stated that “even if she does the deed, you are the cause of it” (Homily 24 on Romans).

Other Christian teachers and bishops emphasized the harmful character of abortion. Clement of Alexandria drew out the dehumanizing effects of abortion.  According to Clement, those who obtained an abortion destroyed not only a child, also “destroy all humanity” (The Teacher 2:10).  Augustine of Hippo regarded abortion not only as an attack on human life but also as an attack on marriage.If a married couple agreed to abort their child, they were not spouses at all (On Marriage and Concupiscence 1.17).  John Chrysostom called abortion “something worse than murder” (Homily 24 on Romans).  His reason for this was that it turned the blessed act of childbearing into an occasion for killing and turned the womb, a chamber of new life, into a “chamber for murder” (ibid.).

Several Christian teachers referred to abortion at “parricide.”  Since parricide typically refers to the killing of a parent, this usage is rather strange since abortion is the killing by a parent.  However, parricide dredged up a particular horror in the Roman mindset, since it represented an attack upon authority.  Minucius Felix, Cyprian, Lactantius and Ambrose inverted this sense and associated the horrors of parricide with an attack upon the weak and powerless.  This reflects the Christian mindset with respect to abortion.

Since abortion was considered a heinous crime, and since Jesus’ death on the cross provided the means of forgiveness for those who had procured an abortion, what did the Church recommend for some who had had an abortion?  The fourth century is the first evidence of a codified attempt to restore those who had had an abortion.  In AD 305, the Council of Elvira in Spain, 81 canons were issued that dealt with issues like celibacy for the clergy and the administration of the sacraments.  Two of these canons dealt with abortion.

Canon 63:If a woman becomes pregnant by committing adultery while her husband is absent, and after the act she destroys the child, it is proper to keep her from communion until death, because she has doubled her crime.

Canon 68:If a catechumen becomes pregnant by committing adultery and after the act she destroys the child, she can be baptized only at the end of her life.

The canons on abortion were quite severe, but were no more severe than canons on other subjects accepted at the synod.

After AD 313, Emperor Constantine declared a policy of religious toleration. Two years later, a council of bishops met at the council of Ancyra in the Roman province of Galatia. One canon mentioned abortion.

Canon 21:  Concerning women who commit fornication, and destroy that which they have conceived, or who are employed in making drugs for abortion, a former decree excluded them until the hour of death, and to this some have assented.Nevertheless, being desirous to use somewhat greater leniency, we have ordained that they fulfill ten years of penance.

Similar attitudes were provided for other crimes as well. This was upheld by the first great ecumenical council at Nicaea in AD 325, “in the case of anyone whatsoever who is dying and seeks to share in the Eucharist, the bishop upon examining the matter shall give him a share in the offering” (Nicaea, canon 13).  Ancyra also included the man responsible for the events that led to the abortion.

In AD 375, Basil the Great wrote a series of letters that significantly influenced church legislation. Of these canons of Basil the Great, two are concerned with abortion.

Canon 2: The woman who purposely destroys her unborn child is guilty of murder.With us there is no nice enquiry as to its being formed or unformed …The punishment, however, of these women should not be for life, but for the term of ten years.

Canon 8: Women also who administer drugs to cause abortion, as well as those who take poisons to destroy unborn children, are murderesses.

Basil asserted that those who had an abortion or administered the drugs to induce the abortion were guilty of murder.  While there was disagreement as to the duration of the penance for such an act, there was no question as to the criminality of the act.  According to Basil, abortion is murder and it should be treated as such.  For the purpose of penance, Basil rejected the distinction between the unborn being “formed” or “unformed.”  This distinction was not discussed at the Councils of Elvira and Ancyra, but Basil seems to have heard of it.

This distinction between the formed unborn and the unformed unborn was already present in the Greek translation of the Hebrew Old Testament, which was known as the Septuagint and the first-century Jewish philosopher Philo of Alexandra.However, this strand of thinking regarding the unborn did not enter Christian thinking until the fourth and fifth centuries.

The late fourth century work the Apostolic Constitutions, drew on earlier material, and the seventh book closely followed the Didache. However, the Apostolic Constitutions added this gloss: “You shall not kill a child by abortion nor kill it after it is born.For everything that is shaped and has received a soul from God, if killed, shall be avenged, as having been unjustly destroyed” (Apostolic Constitution 7.3). Despite its name, this work was not apostolic and was rejected as a work of authentic apostolic authority by the Council of Trullo in AD 692.Other patristic sources that mentioned the distinction between killing a formed and unformed fetus were Jerome (Letter 121.4), Augustine’s commentary on Exodus (Questions on Exodus 80), and the Pseudo-Augustinian work Questions on the Old and New Testaments (23).

The Council of Trullo was influenced by the canons of Basil and added, in Canon 91: “Those who give drugs procuring an abortion and those who receive poisons to kill the fetus are subjected to the penalty of murder.” This canon was incorporated into the great canon legal collection of Photius the nomocanon in AD 883. The canons of Elvira, Ancyra and Trullo continue to inform canon law in the Orthodox Church to the present day. According to David Jones, at no point in its ethical or legal history has the Eastern Orthodox Church embraced an ethical or legal distinction between early and late abortion.

Two other councils produced results that influenced the debate over the unborn.First, the Council of Ledira in Spain in AD 524 distinguished between those who sinned by adultery, even if that sin led to an abortion and those who gave the poisons (venefici) to produce and abortion. The penance for the first offense was seven years, but for the last it lasted a lifetime.This reflects influences from Roman criminal law. The second was the Second Council of Braga, which met in Portugal in 572.At this council Martin of Braga used canons from the previous Eastern councils, but he altered the canon on abortion in his translation to include those who sought contraception with those who desired infanticide and abortion (Braga, canon 78). There had been some mention of this in previous works.Jerome (Letter 22:13), Caesarius of Arles (Sermon 1:12) and the Jewish Talmud regarded chemical sterilization with tremendous disdain; since it prevented the lives of those who might have been born (the Talmud condemns the spilling or wasting of the male seed, but allows women to take sterilizing drugs). Thus the Second Council of Braga followed Jerome, Caesarius, and Martin in regarding taking drugs that induce abortion or sterility as part of the same crime, since in many cases the same drugs were used to achieve either end.

Developments in church discipline also reflected varying perspectives on the embryo.One of the earliest Irish penitentials dates from the early sixth century and is known as the Finnian. This penitential treats abortion as type of poisoning (maleficium, a category taken from Roman law). The Finnian imposes a penance of six months bread and water plus two years abstinence from meat and alcohol for the person who caused the abortion. There was no variation according to the age of the embryo.However, in a later tradition from the late seventh century Irish canons, the Bigotian Penitential, and the Old Irish Penitential of the early ninth century distinguished penances for abortion according to the age of the embryo or fetus. The Old Irish Penitential gave three and a half years penance for abortion after the pregnancy had become established, but seven years if the flesh had formed and fourteen years if the soul had entered the unborn child. This three-stage process of development regarded he embryo as unformed “like water” in the first stage, with flesh but without a soul in the second stage, and ensouled and formed in the third stage. This three-fold pattern is not found in the Septuagint or Aristotle, but in Hippocrates, and is paralleled in the Talmud and Koran (which was influenced by Talmudic traditions). Thus for these writers, abortion was not true homicide if committed before the signs of movement or “quickening,” but was still regarded as a serious sin.

The first Anglo-Saxon penitentials were written in the seventh century (Theodore, Archbishop of Canterbury had much to do with their production). These made a distinction in penance if the embryo was older or younger than forty days old. The penance was more severe if the embryo was killed after 40 days of life (three years, the same as a homicide), and less severe if the embryo was less than forty days old when destroyed (only one year of penance).

These Celtic and Anglo-Saxon penitentials came into conflict with the older models of penance used in Spain. In AD 589, the Council of Toledo condemned the new penitentials as too lenient.Nevertheless, the Anglo-Saxon and Celtic models gained ascendancy in the centuries to come, and by the time of the eleventh century, there were three models for treating abortion:  1)  Abortion was homicide regardless of the stage of the pregnancy; 2) Abortion was homicide only after ensoulment; 3) Both contraception and abortion were homicide regardless of the stage of the pregnancy.

The first option represents the dominant tradition from the Didache to the Council of Trullo, which was reaffirmed in the West in AD 848 at the Council of Worms (canon 35).  The second and third options became increasingly influential from the late fourth century on.  The trouble was that the same authors could be used to support multiple options.  For example, Jerome could be used to support either option one, two or three, depending if you were reading Letter 22 or 121.

As an example of the confusion that reigned, Ivo of Chartes cited Jerome’s Letter 121.4, Augustine’s Questions on the Heptateuch 2.80, and Pseudo-Augutine’s Questions on the Old and New Testaments 23 in his Decretum to support the notion that abortion before ensoulment of the unborn was not homicide.  These same texts were used by Gratian (Concordance of Discordant Canons) and Peter Lombard (Sentences) in the twelfth century.  These two works constituted the foundation of church law and theology for the whole Middle Ages.  In the thirteenth century, the Dominican Raymond of Pennafort wrote a new canon law for Gregory IX, called the Decretals.  He used Ivo and Gratian and followed the Decretum of Burchard of Worms with regards to contraception and abortion (Decretals V, tit. 12, can. 5).  However, Raymond also included a decision by Pope Innocent III with regards to a monk who had caused a pregnant woman to miscarry while “acting with levity” (Decretals V, tit. 12, can. 20).  The pope decreed that the monk should be suspended only if the child was living (vivificatus).  This produced a contradictory situation in which the canons said one thing but a ruling from the same collection of canon law said a completely different thing.

This confusion continued.  Magister Rufinus, who died in AD 1190, claimed that killing an embryo before ensoulment carried the guilt of homicide but not the act of homicide.  Conversely, Roland Bandinelli, who died in 1181, asserted that abortion was homicide regardless of the age of the pregnancy because the intent was the same on both cases, a position that was adopted by the Franciscan theologian Bonaventure (d. 1274).  Thomas Aquinas held that contraception and early abortion were second only to homicide.  Aquinas wrote in Summa Contra Gentiles:  “after the sin of murder, this sort of sin seems to hold the second place, whereby the generation of human nature is precluded” (SCG III, Q.122).  Aquinas taught similar things in his Commentary on the Sentences IV, D. 31 & Q.4.

Abortion at any stage was condemned and the imposition of excommunication for abortion was upheld by local synods in Riez in 1234, Lille in 1288, Avignon in 1326, and Lavaur in 1368, but the proscribed penances continued to reflect the two-tiered system.

In 1588, in a decree called Effraennatum, Pope Sixtus V called upon the power of excommunication in an attempt to restrain the growing practice of abortion during the Renaissance.  He included contraception under this ban, since he used the Decretals, V.12.5 as his model.  Three years later, Pope Gregory lifted the scope of this excommunication in his Sedes Apostolicae.  He declared that only abortion of a formed fetus merited excommunication.

Thus the canonical change issued by Pope Puis IX in 1869 that protected the embryo from the moment of its creation until its natural death was not a novel decree, but the restoration of an ancient understanding with regards to abortion and the nature of the unborn.  The Christian church was unique in its defense of the unborn through the time of its development and Pope Pius IX merely returned to the original intent and understanding that the early Church possessed.

Thus Mr. Frank’s historical analysis is quite incorrect.  What about his other points?  The next post will examine his other points.