Civil Law and Canon Law on Abortion

LLM CANON LAW
2nd year
Essay 4.

What is the civil law on abortion and is this at odds with the Roman Catholic canon law?

Introduction 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

Bibliography: Ajmal H.N.M. The Foetus and Human Rights Unpublished LLM Dissertation (Cardiff 2002) Anderson Gary Barratt H. ‘Abortion and Conscientious Objection’ Triple Helix, Christian Medical Fellowship, Winter (2001) Engel J. ‘Late Termination’ Triple Helix, Christian Medical Fellowship , Winter (2003) Begelman D.A., Bantam D Clark M.T. An Aquinas Reader (Hodder and Stoughton 1974) Coriden J Doe N The Legal Framework of the Church of England (Oxford 1996).p 31. Dunstan G.R. The Artifice of Ethics (SCM 1974). English Jane ‘Abortion and the Concept of a Person’ Canadian Journal of Philosophy, vol Flannery A. Vatican Council II (Costello Publishing House 1975) Garlikov R Grubb A. ‘The New Law of Abortion. Clarification or Ambiguity’, Criminal Law Review (1991) 659. Grubb A. “Abortion Law in England: The Medicalisation of a Crime” (1990)18, Law Medicine & Health Care 146 Hannon P Heaney Stephen J. ‘On the Legal Status of the Unborn’ 33 Catholic Lawyer (1990) 305 Jeremy Anthony, Abortion, Canon Law and Civil Law, unpublished LLM lecture (Cardiff 2003) Keown J. Abortion Doctors and the Law (C.U.P. 1988) Kingston Abortion in Law & History (Childbirth By Choice Trust ,Canada 1995) Kovacs J. ‘The idea of Brain-Birth in connection with the Moral Status of the Embryo and the Foetus’ in Evans D. (ed) Concerning the Embryo (Kluwer Law International, 1996) Lockwood M McArevey ‘Abortion and the Sacrament of Penance’ The Furrow (1993) 230 McCormick R.A., S.J Mill J.S. On Liberty (18950 and Mitchell Basil ‘Morality, Legal Enforcement of’ in Macquarrie J. Childress J. (Eds) A New Dictionary of Christian Ethics (SCM 1986) Nichols A Abortion and Martyrdom (Gracewing 2002) Ombres P. ‘Why then the Law?’ New Blackfriars (1974) Ombres R Report of the Select Committee of The House of Lords on the Infant Life (Preservation) Bill (1987-8) 11.1, 1987-88. Sass ‘Do Catholics Really Support Abortion? Rightgrrl May (1999). Stenson A Stevas J. The Agonising Choice: Birth Control, Religion and the Law (London 1971) Thompson ‘Defence of Abortion’ J Philosophy and Public Affairs (1971). Treloar A, Treloar J, Williams A., Au-Yeung P. Abortion and the Catholic Doctor (Guild of Catholic Doctors 1995). Urresti T. ‘Canon Law and Theology: Two different sciences’ Concilium 8 (1967) 10 Vernon G Vernon G. ‘Where has the Sanctity of Life Gone?’ Catholic Medical Quarterly November (2002). Wrenn L Chalk v US District Court 840 F 2d 701 (9th Circ., 1988) 8 Chalk v US District Court 840 F 2d 701 (9th Circ.1988) 7 Doe v Centinela (US Dist. Ct. Cal., June 30 1988) 8 Infant Life (Preservation) Act 1929 S 1.(1) 8 Keeler v Superior Court of Amador County 470 P.2d 617 (Ca, 1970) 8 Paton v BPAS Trustees [1979] 1QB 276 Paton v Trustees of BPAS (1987) 2 AER at 987. 9 R v Bourne [1939] 1 KB 687. 5 Re v T (Adult: Refusal of Medical Treatment (1988)) 9BMLR 9 Rehabilitation Act 1973 s504; 7 Webster v Reproductive Health Services 109 S. Ct. 3040(1989) 9