On Wednesday, a Texas law banning most abortions once cardiac activity can be detected in the embryo (in most cases at six weeks) went into effect. The law is highly controversial and means that Texas now joins Georgia, Mississippi, Kentucky, and Ohio as one of a growing number of states with “heartbeat” laws. Texas is the only state, however, whose legislation has not been delayed by legal challenges. Part of the reason for this is that the new legislation bars state officials from enforcing it. Instead, it deputizes private citizens who can sue anyone who performs or “aids and abets” the performance of a termination. Uninterested civilians can win legal costs plus up to $10,000 if they win.
The legislation has elicited strong reactions from those who support abortions rights and a women’s right to choose. There are, additionally, legal observers concerned about the unusual manner in which abortion will be targeted. Texas Right to Life, an anti-abortion group, has set up a “whistleblower” website where people can submit tips about those they believe have violated the legislation. A spokesperson for Texas Right to life told NPR that “These lawsuits are not against the women…[they]would be against the individuals making money off of the abortion, the abortion industry itself.” While many would contest whether or not the legislation is about women, it is striking that accountability is being assigned to third parties: doctors, nurses, volunteers, and even Uber drivers.
This is not the first time in history that culpability for abortion has shifted. Around the turn of the Common Era the Roman Emperor Augustus introduced moral legislation designed, among other things, to encourage marriage and childbearing among Roman elites. The legislation required citizens to marry and prohibited cross-class marriage. The descendants of senators were prohibited from marrying freedwomen (formerly enslaved women), dancers, actors, gladiators or sex workers. Those who were married were provided with incentives to procreate (exemptions from certain arduous duties) and adultery now became a public crime punishable by exile and fines.
While none of this legislation targeted abortion or infant exposure, it created a context in which what we might call household or familial crimes could be legislated by the state. Moreover, these laws disproportionately affected women. An elite woman who had sex with anyone other than her husband could be punished for adultery. An elite man was only guilty of adultery if he had sex with an elite woman to whom he wasn’t married; sex workers, enslaved and formerly enslaved people did not leave them open to this charge. Abortion was something of a non-issue. It only became problematic, medical historian Rebecca Flemming has written, when a woman used it “to obstruct a man’s acquisition of legitimate heirs.”
In the same way, responsibility for procreation was women’s work. The first divorce, Dionysius of Halicarnassus notes, was performed on the grounds of infertility. If a couple could not get pregnant it was assumed to be the woman’s fault. When the Roman writer Juvenal speaks of “foul pools” where women went to acquire exposed babies to pass off as their husbands’, he may be offering us a glimpse of the desperate situation that faced women who could not get pregnant.
In the first two centuries of the Common Era, Christianity followed suit. The earliest statements about abortion appear in the second century in a suite of texts about ethics and Christian lifestyle. The Epistle of Barnabas 19.5 prohibits its audience from procuring an abortion or destroying a child after its birth (through infanticide or, potentially, infant exposure) but the addressees of the statement are everyone. Another second century text, the Didache, includes abortion in a genderless list similar to the Ten Commandments: “Thou shalt do no murder; thou shalt not commit adultery; thou shalt not commit sodomy; thou shalt not commit fornication; thou shalt not steal; thou shalt not use magic; thou shalt not use love potions; thou shalt not procure abortion, nor commit infanticide; thou shalt not covet thy neighbor’s goods.” Once again, the list does not specify any one person as responsible for these sins.
In her just published book Hell Hath No Fury (full disclosure, I endorsed this book), Dr. Meghan Henning charts the ways that culpability for sins shifted and changed course in the first millennium. The earliest descriptions of Christians being punished for household crimes, Henning shows, depicts both parents being punished for infant exposure. In the Apocalypse of Paul, she told me, both men and women are punished for procuring abortions. In the late second-century Apocalypse of Peter, however, only women are condemned for seeking terminations. The women whose children had been aborted are described as seated in a place of excrement and filth where a lake of putrid matter had filled and covered them up to their necks. Here, Henning says, we see the beginning of the gendering of household crimes as female.
The distinction stuck. Over the next few centuries, the notion that women were exclusively responsible for adultery and abortion was further cemented in a variety of ancient sin catalogues and apocalypses. Henning told me that women’s responsibilities were even expanded such that they could be responsible for broader “childrearing” crimes. Then medieval Latin Vision of Ezra not only condemns those who killed their children but also those who “did not give their breasts to orphans.” This radically reshapes the moral obligations of women to include caring for parentless children. Given that most ancient wet nurses were enslaved this text adds a layer of religious violence to the injustice already inflicted upon them those who had been trafficked. Now the exploitation and violation of women’s bodies was refashioned as a kind of moral duty. All women were obligate to allow their bodies to be used in this way, regardless of their lack of choice, autonomy, or health.
The recent legislation in Texas aims to target abortion providers. It thus expands culpability for abortion to include medical doctors and anyone else involved in providing terminations. In religious contexts this has happened before. In 2009 a Brazilian doctor was excommunicated for performing an abortion on a 9-year-old rape victim who was pregnant with twins. The girl’s mother and the medical team were also excommunicated. It is worth noting that the child herself was not.
Given the religious and legal history governing the family, we might wonder why fathers are no longer a part of the religious or legal conversation. One imagines that a biological father might be liable to prosecution if he drove his partner to an abortion clinic but, otherwise, they are in the clear. Henning told me that our culture “continues to place the lion’s share of responsibility for procreation and parenthood on women.” This is one of the few places in society that men are invisible. “Ironically,” said Henning “the ancient Christian documents that hold everyone responsible for abortion also held the whole Christian community responsible for all imaginable for sin.” The biggest targets are the wealthy, who face damnation if they don’t share their resources. A return to Christian morality, said Henning, implicates everyone: “Selectively reanimating ancient teachings about abortion in order to condemn women, is not a return to authentic Christian ethics, it is a misrepresentation of ancient teachings about collective responsibility and the common good.”