Civil Law and Canon Law on Abortion

Topics: Common law, Abortion, Canon law Pages: 18 (5682 words) Published: March 3, 2014
2nd year
Essay 4.

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 Development
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

Historical perspective
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...

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
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • law law Essay
  • Civil and Common law Countries Research Paper
  • Abortion (Medical Law and Ethics Essay
  • Abortion Law essay
  • Essay on law memo
  • Civil Law Essay
  • Essay on Common Law and Civil Law
  • Civil Law Essay

Become a StudyMode Member

Sign Up - It's Free