LLM CANON LAW
What is the civil law on abortion and is this at odds with the Roman Catholic canon law?
The word abortion comes from the Latin ’aboriri’ meaning to miscarry, where pregnancy ends too soon and the baby dies. The Abortion debate has become one of the most divisive and contentious issues of our time. Garlikov is of the opinion that once those for or against abortion reflect with more rationality,they will discover that they have more common ground than expected.1 This essay seeks to engage in the continuing debate about the states legal enforcement of morals in relation to abortion. Furthermore this will be contrasted with both the Roman Catholic and Anglican norms of canon law. In this respect Jeremy2 has marked out some important areas in his historical and contemporary analysis, which has highlighted different approaches to morality. A fundamental question is whether abortion is wrong, and if so is this sufficient reason for legal prohibition. Alternatively are there, as Dustan says, first order principles and second order rules, to allow for the varying shades of moral action within this moral dilemma.3
In contrast to the absolutist view of prohibition, liberal society reflects the view of Mill that ‘no conduct should be suppressed unless it can be shown to harm someone.’4 Any understanding of the present civil law on abortion needs to be set in its sociological, historical and philosophical context. A further dimension is the influence of Roman and Canon Law on the development of English Common Law. Here the reader is referred to the work of Belcher and others for more detailed information.5 Any analysis of civil law must therefore be set within the context of both the Roman Catholic and Anglican canonical provisions, to elucidate any convergence or divergence. However, whilst the ecclesiastical law of the Church of England is part of the wider common law of the state and that in the absence of any canon law the Roman Catholic Church accepts, this must be consonant with Divine law.6 In this respect this essay will seek to elucidate any common or divergent grounds as a result of particular philosophical and theological stances.
Before examining particular civil and canonical legal norms of the rights and status of the foetus we first need to understand its process of development from conception to birth. This is because the various arguments and legal statements use medical terms and definitions when commenting on the various stages of the maturation process.
Foetal science has identified 13 stages of foetal development. This begins from conception and the formation of the zygote to cell division and formation of biological structures that will result in a birth. Significant stages are the formation of the beginning of the circulatory system, brainwave activities, human resemblance and a minimal ability to survive independently of the mother by the 24th week.7 Essentially science is concerned with mapping out of sequential changes. This in turn leads to the attribution of such human qualities as respiration and brain function. Here Kovacs and Anderson link brain function to the moral status of the embryo and foetus in relation to birth and death.8 This concern with ‘animation’ is traditionally seen in the term ‘Quickening’ used to define the time when the foetus attains sensory capabilities. This usually occurs in the second trimester of pregnancy (6 months).
Abortion may happen either accidentally or intentionally.9
Pre-Christian sources such as Ovid (c43BC-AD65), Juvenal (c57/67-127) and Musonius (28Bc-9AD) condemn abortion with the imposition of a penalty for such action.10 It was Aristotle who said that at conception a child was endowed with a vegetative life which in a few days was exchanged for an animal soul, which in turn would develop to a male human...
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