In the dark of Wednesday night, five justices on the Supreme Court voted to allow Texas to effectively ban abortion. Their reasoning was related to the seemingly novel enforcement mechanism embedded in the bill by Texas lawmakers—a mechanism many people, ourselves included, see as a form of vigilante justice. The law empowers anyone to sue Texas abortion providers, or anyone who helps anyone else get an abortion in Texas in any way, including driving pregnant persons to a clinic, housing them, or otherwise providing support. A successful lawsuit nets $10,000 plus legal fees for the vigilante; there is no risk of legal penalties for the person bringing the lawsuit, if the claim is not successfully proven.
The five members of the Supreme Court claimed that this was such a new idea for enforcement that they couldn’t strike down the law. (A more traditional response would be to keep the law from going into effect until after a full assessment of its constitutionality.) And the approach is new, in the context of the laws of the United States. But relying on neighbors to spy on neighbors, specifically in the realm of reproduction—asking citizens to decide whose pregnancy, miscarriage, stillbirth, or abortion should be revealed to the authorities—is in fact a tradition reaching back centuries.
When the news about Texas broke, MSNBC legal analyst Neal Katyal went on air to say that Texas was “on the verge of turning into something very medieval.” But there’s a key difference between then and now. In pre-modern Europe, as early as the ninth century, and especially in the twelfth and thirteenth centuries and beyond, efforts to regulate pregnancy and criminalize infanticide are best understood as one part of a wide array of moral and legal decrees all intended to, above all, protect both pregnant women and children from all manner of accidental and intentional harm. Today, on the other hand, anti-abortion laws promote surveillance, criminalization, and control, driven by a movement that only cares about the fetus until the moment of birth. It’s easy to assume that these vigilante tendencies around reproduction have deep roots, and to call them “medieval” as a way of distancing ourselves from the horror. In fact, they are the fruits of far more recent, and newly grafted, plantings.
Before we describe how laws around reproduction worked in the pre-modern era, it’s important to know that medieval authorities routinely issued laws calling for fierce punishment for all kinds of crimes, but fell far short of regular enforcement. Both in text and in practice, they balanced ferocity with calls for mercy: The penitent should be forgiven. Life, including the lives of the worst offenders, should be preserved. This was not because kings and judges were nice guys—they assuredly were not. Instead, these powerful authorities feared judging too harshly, lest they be judged harshly, in the world to come. As a result, while prosecution of stillbirth or infanticide relied upon denunciation and rumor from neighbors, pardons and mitigated punishment had a predominant role in sentencing. These acts of mercy should be understood as part of that endeavor to avoid judicial overreach.
Matters of sentencing aside, the laws concerning pregnancy and children should be recognized as emerging from a context of a broader obligation incumbent on all Christians to help to protect and preserve the lives of pregnant women, infants, and children. These vulnerable people lived in a world rife with environmental dangers: animals, diseases, food scarcity. They were also at risk from violence, corporal punishment, or neglect—adults were busy with the labors of living in the Middle Ages, and not necessarily able to keep the kids safe from the livestock, the boiling water, the fire, or the well.
Local church laws from medieval Europe, for example, contain repeated calls for community leaders to join parents in doing all they could to protect and preserve life, especially that of the infants and children all too often surrounded by peril. Every Christian, according to these principles, had a moral obligation to protect pregnant women and children from all manner of possible harm. As a result, all persons involved in injury to a pregnant woman or child could be prosecuted and punished. For those suspected of provoking a miscarriage by forcing a pregnant woman to engage in heavy labor, for those whose runaway horse trampled an infant, for those who gave poisonous herbs to a pregnant woman desperate to terminate a pregnancy, or for the woman who herself smothered a newborn infant—all of which are stories we find in the records of medieval courts and beyond—while there could be harsh punishment, there could also be clemency.
Even at the highest level, and in the most important law texts the Middle Ages produced on the topic of infant murder, forgiveness was the model to be followed. As Pope Alexander III wrote in his instructions to a bishop towards the close of the 1160s, writings that would subsequently form the standard legal doctrine on the subject, a single mother living in the county of Flanders had taken her newborn son to the man she claimed was the father. He had denied paternity and the mother, despairing, killed the infant. The count of Flanders banished her and she, cast out, decided to go to Jerusalem to atone. She had stopped off to see the pope on her way, to confess her sins and ask for penance. The pope rejected her idea of travel to Jerusalem, but moved by her tears, decided that she should return to Flanders. If she were willing, she should spend the rest of her life in a convent. But if she did not feel capable of a life of chastity, she was free to marry.
Neither this example, nor our general description of the place of clemency, mercy, and restoration of community in medieval law enforcement, is intended to exonerate the Middle Ages of its myriad manifestations of patriarchal oppression. Rather, we hope to explain that the underlying concern of their laws regulating abortion, neonaticide, or the death of a child was a focus on the preservation of life—the whole life, not just that of a fetus.
Laws depending on neighbors deciding to turn in neighbors for infanticide and related crimes grew harsher in early modern Europe, in the sixteenth and seventeenth centuries, but even here, scholars like Julie Hardwick have explained that the chief aim was not punishment of pregnant women. Pregnancy surveillance laws issued in the sixteenth century and beyond were intended to induce pregnant unmarried women to name the fathers, so that local authorities could then push the putative father to either marry the woman, or to provide for the child’s support.
To call what’s just happened in Texas “medieval” is wrong, but this is a common move intending to impose what we call “chronological alterity” between us and something that we abhor. It might make us feel better to describe the law this way, but it actually makes it harder to fight. The Texas law that these ready and willing vigilantes are so eager to take advantage of coexists not with a general ethic of protection for women and children, but with child abuse and sexual exploitation of minors, high maternal and infant mortality rates in the Black population, lack of protections for pregnant women in the workplace, and the dangerous treatment of incarcerated pregnant women.
We aren’t here to act as apologists for either medieval or early modern Europe. We just want to point out that oppressive legal systems have long relied on vigilantes to let the state know what women were doing with their own bodies, while also recognizing that the purpose and function of the Texas law is entirely new. It’s a 21st-century exploitation of people’s hatred of each other. It deserves a different, and higher, level of condemnation.
Update, Sept. 7, 2021: This article was updated to clarify that the Texas law allows anyone in the country to sue over an abortion after six weeks, not only people in Texas.