Alleviating the ‘Miserable Condition’: Fitzjames Stephen and the Development of Modern Abortion Law
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Contemporary English abortion law is now typically thought to be a development of the twentieth century, and little academic attention has been paid to its development before the 1938 case of R v Bourne or the Abortion Act 1967. Sir James Fitzjames Stephen’s nineteenth century perspectives on pregnancy, abortion and the doctrine of necessity informing the basis of contemporary governance of abortion, child destruction, and infanticide as distinct from homicide, are often overlooked. Stephen understood abortion, child destruction and infanticide as distinct crimes with a common motivation and intention. The desperation of women to conceal or remedy the ‘miserable’ and emotionally destabilising condition of unplanned pregnancy typically defined each crime; the exception being cases of medical emergency during pregnancy which sometimes defined abortion and child destruction. Stephen argued that punishment required public assent and support in order to deter crime, and severe punishment in these cases rarely had either. In the twentieth century Stephen’s radical Victorian arguments to conceptualise abortion as a legitimate medical procedure (in the case of necessity), and to characterise child-killing as distinct from homicide, were finally effective: his model for law therefore informs contemporary English law in these areas.
Gleeson, K. (2016) 'Alleviating the ‘Miserable Condition’: Fitzjames Stephen and the Development of Modern Abortion Law', Plymouth Law and Criminal Justice Review, 8, pp. 48-67. Available at: https://pearl.plymouth.ac.uk/handle/10026.1/9039
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