The Hippocratic Oath in Roe v. Wade
If people know one thing about the Hippocratic Oath, it’s that it says ‘do no harm’ (or so they think). If two, they may also know that it forbids abortion. Physicians today still take the the Oath as a rite of passage (though they are not legally bound by it) and because of its prohibition on abortion, the Oath is at the heart of one of the most divisive Supreme Court cases of our time: Roe v. Wade. But the Oath’s stance on abortion isn’t as clear as most people think — and even if it were, it is doubtful whether we should care anyways.
So, how did the Hippocratic Oath came to be part of Roe v. Wade? What do we really know about ancient abortion practices and should our understanding of them influence abortion law today?
Abortion laws in the United States as they currently exist are defined by two major Supreme Court cases, Planned Parenthood v. Casey (1992) and Roe v. Wade (1973). Roe is well-known as the case that overturned state-level anti-abortion laws and established a right of privacy for women, in consultation with their physicians, to choose abortion. Casey signaled movement towards a more fetal-rights based ethic, with a reworking of Roe’s trimester framework in favor of a more restrictive viability framework that determines the line between a woman’s right to choose an abortion and the state’s interest in protecting fetal life.
Under Casey, restrictions on abortion access are permitted if they are in the interest of protecting the woman’s health. However, despite Senator Wendy Davis’ herculean 11-hour filibuster attempt, a slew of unwieldy abortion regulations were passed by the Texas legislature in 2013. On March 2nd of this year, the Supreme Court began hearing arguments in Whole Women’s Health v. Hellerstedt, which challenges those new regulations. What the court has to determine is whether the new restrictions in Texas (and, consequently around the country) constitute a good faith implementation of the standard set by Casey.
What people on both sides of the issue would like to see, though, is a more full-scale challenge to Roe. Pro-life advocates criticize Roe as an instance of legislating from the bench, but even abortion rights activists lament the fact that women’s access to an essential health service rests on the dubious foundations of ‘privacy’ and ‘consultation with a physician’ rather than a woman’s right to make decisions about her body.
Another dubious foundation of Roe was the Court’s use of precedents from the ancient world. Appeals to such precedents may not surprise those who read last fall’s articles by Zachery Herz and Michael Fontaine, both of which explore, in different ways, the Court’s recurring obsession with homosexual relationships in ancient Greece and Rome.
But while there is a history in sodomy and gay-marriage cases of looking to the ancient Greco-Roman world for precedent, there was no such history for abortion before Roe v. Wade. Really, there was no history of the Supreme Court dealing with abortion before Roe at all. Everything that ended up in the case opinions is there because the justices at that time (Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, Powell, White, and Rehnquist) determined the way we should think and talk about abortion. Above all, Justice Blackmun, as the author of the majority opinion, is responsible for the way that we understand abortion rights in this country.
In a later interview, Blackmun talked about how he asked to re-hear oral arguments after the initial round in 1971 because neither side dealt with the Hippocratic Oath and its proscription on abortion. When the court reopened the case in October 1972, Blackmun grilled prosecutor Sarah Weddington (representing Roe) about the Oath:
JUSTICE BLACKMUN: Now you referred a little bit to history. And let me ask you a question.
MRS. WEDDINGTON: Okay.
JUSTICE BLACKMUN: -based on history. You’re familiar with the Hippocratic oath?
MRS. WEDDINGTON: I am.
JUSTICE BLACKMUN: I think — — I may have missed it, but I find no reference to it in this — — in your brief, or in the voluminous briefs that we’re overwhelmed with here. Do you have any comment about the Hippocratic oath?
MRS. WEDDINGTON: I think two things could be said. The first would be that situations and understandings change…
JUSTICE BLACKMUN: Tell me why you didn’t discuss the Hippocratic oath.
MRS. WEDDINGTON: Okay. I guess it was- okay- in part, because the Hippocratic oath — — we discussed basically the constitutional protection we felt the woman to have. The Hippocratic oath does not pertain to that. Second, we discuss the fact that the State has not established a compelling State interest. The Hippocratic oath would not really pertain to that. And then we discuss the vagueness jurisdiction. It seemed to us that the fact that the medical profession at one time had adopted the Hippocratic oath does not weigh upon the fundamental constitutional rights involved. It is a guide for physicians, but the outstanding organizations of the medical profession have, in fact, adopted a position that says the doctor and the patient should be able to make the decision for themselves in this kind of situation.
JUSTICE BLACKMUN: Of course, it’s the only definitive statement of ethics of the medical profession. I take it from what you said that your…you didn’t even footnote it, because it’s old? That’s about, really, what you’re saying?
MRS. WEDDINGTON: Well, I guess it is old. And not that it’s out of date, but that it seemed to us that it was not pertinent to the argument we were making…It seems to me that the oath was adopted at a time when abortion was extremely dangerous to the health of the woman…
JUSTICE BLACKMUN: Well, the Hippocratic oath went directly and specifically to abortive procedures.
Ultimately Sarah Weddington did not answer Justice Blackmun to his satisfaction (the defense was not asked to speak to the Oath). Just 26 years old at the start of Roe v. Wade — the youngest person ever to argue a case before the Supreme Court — Weddington was subjected to great scrutiny and more than a little sexism. Years later, when commenting on the case, Blackmun noted, “The first (oral) argument was poor. Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, ‘Winner of Roe v. Wade.’ I find that peculiar.”
Weddington, though, wasn’t as off base as Blackmun made her seem, even if she was a little cocksure. When she observed that the Oath emerged out of a time when abortion was extremely dangerous for women, she was right. And this observation may be key to understanding the Oath and its ostensible prohibition on abortion.
The Hippocratic Oath says,
I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman an abortive pessary.
Although the English varies considerable from translation to translation, in ancient Greek the key phrase is πεσσόν φθόριον, “abortive pessary.” In the ancient world, an herbal preparation fashioned into a vaginal pessary — or suppository — was but one of many ways to induce an abortion. In fact, it seems to have been considered the most dangerous abortifacient for the pregnant woman. It is entirely possible that the Hippocratic Oath was intended to prevent doctors from administering to women abortifacients that would have been dangerous to them, rather than to a developing fetus.
My interpretation aside, though, Justice Blackmun found another explanation for the Oath’s prohibition of abortion — the explanantion that ultimatley made its way into the text of Roe v. Wade.
In the intervening summer of 1972, between the first and second rounds of oral argument, Blackmun himself set out to investigate the Hippocratic Oath. Prior to becoming a Supreme Court justice, he had spent ten years as counsel at the Mayo Clinic and seems to have fancied himself something of a medical historian. So he returned to spend ten days at the Clinic to research ancient abortion and the Oath. What he found became entrenched in our abortion law and in our modern politics.
Justice Blackmun’s research into the Hippocratic Oath brought him to the interpretation of physician and classicist Ludwig Edelstein, who had decided that the Oath was a Pythagorean document. The Pythagoreans practiced radical non-violence; of all the various philosophical schools in ancient Greece, they would have been most likely to defend fetal life. Edelstein reasons that the Oath was just one of many views on medical ethics in the fifth century BCE and probably a minority view. This, he posits, should explain the discrepancies between the injunction of the oath and our evidence for seemingly ubiquitous ancient abortion practices.
As a complement to his discussion of the Oath, Blackmun, in his majority opinion, also appeals to ancient Greek and Roman law and religious practice, as well as the medical/philosophical writings of Plato, Aristotle, and Soranus, in an attempt to locate, within the western cultural tradition, a history of abortion freely available and widely practiced.
Blackmun’s section on these ancient precedents is worth a read in full, if only for the syllabus it provides for studying abortion in the ancient world, but I’ll give a brief summary: Blackmun begins by explaining that criminal abortion laws are of recent vintage — the ancients practiced abortion freely and without scruple. He goes on to explain that Soranus advocated abortion when the life of the mother was at risk; that Greek and Roman law did little to protect the unborn (since abortion was merely a violation of paternal interest); and, finally, that ancient religion did not bar abortion. Let’s consider some of these claims.
It is true that Soranus advised abortion when it was in the best interest of the woman. Aligning himself with other physicians of the time, he writes,
[We] do not prescribe them [abortions] when a person wishes to destroy the embryo because of adultery or out of concern for youthful beauty; but only to prevent subsequent danger in childbirth, if the uterus is small and not capable of accommodating the complete development, or if the uterus at its orifice has knobbly swellings and fissures, or if some similar difficulty is involved. (Gynecology 1.60).
I have written before about the pervasive and ubiquitous concern in the ancient Roman, male-authored literature that women were seeking abortions to conceal adultery or to maintain physical beauty. Soranus seems to be tapping into these concerns — and attempting to allay them — with his opening caveats. But such concerns do not tell us much about the reasons that women might actually have chosen abortion in the ancient world; rather, they reveal a culture of misogyny and a mistrust of women.
In the same article, I also explored the notion that Roman law was concerned with the fetus only insofar as it was the potential (male) heir of its father and a potential citizen of Rome. Within the parameters of inheritance and property transfer (the main concerns of Roman law), the fetus had a number of protections. If a Roman woman wanted to dispose of a fetus — either while in utero or after birth — she had to be quite secretive about her pregnancy. Once it was established that a woman was pregnant, if the presumed father (or any other related party) had any interest in the unborn child, he could appoint a figure called the curator ventris (the guardian of the womb) to monitor the woman until — and even after — she gave birth (Ulpian, Digest of Justinian, 37.9.1.pr.-28). This seems to have happened particularly in cases of divorce and death of the paterfamilias. He could also enlist up to five midwives to examine the woman to determine whether she was pregnant or not (Ulpian, Digest of Justinian, 25.3.3.1). In the case that a woman was prosecuted for abortion, she could be sentenced to exile and forfeiture of property (Ulpian, Digest of Justinian, 48.8.8).
As far as ancient religion is concerned, abortion was a stain (miasma) that required religious purification and abstention from entering sacred spaces, on par with the loss of virginity, menstruation, childbirth, or the death of a close relative. The magic number for abortion purification seems to be 40 days, as shown in this pair of inscriptions from Lindos on the Island of Rhodes (2nd century CE), cautioning worshippers to refrain from entering the temple of Athena:
Good Fortune
Among other things needed for appropriate entry to the sanctuary, first and foremost:
They must be clean and healthy in their hands
and minds, and not carry in their conscience
anything terrible.
And abstain from these:
from lentils 3 days
from goat meat 3 days
from cheese 1 day
from abortion 40 days
from the death of a close relative 40 days
from lawful intercourse, they may enter on the same day, after being sprinkled and anointed with oil
From loss of virginity… (Kapparis 2002: 172)
And the second inscription:
From an abortion of a woman, or a dog, or a donkey 40 days
From loss of virginity 41 days
From death of a close relative 41 days (Kapparis 2002: 172)
The ancient sources also offer us a wealth of material on abortifacient methods: everything from physical exertion to hot baths to bloodletting to herbal preparations (topical, oral, or vaginal) to magic, ranging from the mild and probably ineffective to the quite deadly — for the woman. Physicians and herbologists catalogued abortifacient preparations, such as this recipe for a vaginal suppository from the 5th-4th century BCE:
Take four cups of squirting cucumber juice, mix into it goose grease, goat’s fat and iron sulfate, form into a suppository, and apply with a piece of cloth. (Hippocrates Nature of Women 81).
Or this recipe for abortifacient wine from Dioscorides (1st century CE):
Hellebore or squirting cucumber or scammony is planted together with grapevines and the grapes, absorbing the properties of these plants, produce a wine that is abortifacient.(Medical Materials)
Modern at-home abortion guides make use of these ancient herbals, noting the long (and proven) effectiveness of many of the herbs suggested by the Greco-Roman writers — and noting also the many dangers associated with them: “Caution, many deaths reported!”
So abortion was talked about, a lot, by ancient writers. We also know that they had effective abortion methods at their disposal. The question is whether abortion was happening, as Blackmun wrote in 1973, “freely and without scruple.” Here the issue gets murkier. We don’t have anything so helpful as abortion testimonials from the ancient world. The lack of hard evidence for actual abortions (as opposed to abortive methods, warnings about abortion, and legal proscription) has led some scholars to suggest that abortion wasn’t even all that prevalent in the ancient world. Bruce Frier has argued, based on demographic analysis, that there wasn’t likely to have been widespread family planning, including abortion, in the ancient world.
Where we don’t have female voices, we almost always have men suggesting that abortions aren’t happening. These men are wrong. We know from our own country’s experience prior to Roe that dangerous and illicit abortions took place, if not in back alleys, then certainly on kitchen tables and bathroom floors. This zine has published documents from jane: Chicago’s clandestine abortion service from 1968 to 1973, when state based anti-abortion legislation reached a peak just prior to the passing of Roe. Now, in the wake of hundreds of new abortion regulations and restrictions, Google has seen an uptick in the number of searches for at home abortion methods.
In the ancient world, it would have been hard to know that an abortion was even happening — at least by that name. In the first place, Greco-Roman medical writers viewed the fetus as a plant, at least during the early part of its existence. Aristotle (4th century BCE) talked about the fetus having a plant-like soul prior to quickening (the first fetal movement) and an animal-like soul thereafter. Porphyry (3rd century CE) saw the fetus as mostly resembling a plant (To Gaurus on How Embryos are Ensouled 3.5) and Galen (2nd century CE) described fetal development using analogies to roots, stems, and branches (On the Formation of the Fetus 666).
Secondly, it was notoriously difficult in the ancient world to tell whether a woman was pregnant or affected by some other uterine affliction. Many of the methods deemed effective at causing abortion were also advertised as emmenagogues — herbs effective at bringing on delayed menstruation.
These facts complicate our understanding of whether or not abortion happened frequently in ancient Greece and Rome. Justice Blackmun based his Roe opinion (in part) on an understanding that it did. Scholars of the ancient world, such as Frier and Suzanne Dixon, haven’t been so quick to reach this conclusion when we do not have firm evidence. But given the difficulties in even knowing whether a woman was having an abortion or a miscarriage or merely restarting a delayed a menstrual cycle, it is possible that it would have been virtually impossible to prove that a woman had sought an abortion and, further, that she had done so for vain or malicious reasons.
In the nineteenth century, strict anti-abortion laws that were passed around the country— what Blackmun referred to as “restrictive criminal abortion laws” of “relatively recent vintage” — prevented people from openly seeking and advertising abortion services. So abortionists advertised their wares with euphemisms, hawking products such as “French Periodical Pills” that were guaranteed to “remove from the system every impurity” and to regulate or restart delayed menstruation. Other varieties were intended for use as laxatives. These pills came with warning labels — “ladies married should not take them if they have reason to believe they are enceinte, as they are sure to produce a miscarriage.” With such a warning, the public was duly informed of the dangers associated with such pills and women knew that they were effective as abortifacients.
I suspect that something similar could have been going on in the ancient world. In particular, the treatments for a condition called a uterine mole were remarkable similar to the methods used to bring about abortion. In ancient medical writings, moles (from the Greek μύλη = millstone) were tumorous growths in the uterus that showed symptoms similar to pregnancy prior to the start of movement in the fetus (thought to be 40 days for a male and 90 days for a female). To get rid of a uterine mole a physician might recommend hot baths, bloodletting, or abortifacient herbs (Soranus Gynecology 3.37). It is possible that many or most abortions in the ancient world went under the radar of even the women themselves, if they thought that they were merely ridding themselves of a uterine blockage.
So far, the ancient material from Roe v. Wade has not figured into the oral arguments in Whole Women’s Health v. Hellerstedt, which is certainly for the best. Sarah Weddington was right in her assessment; times have changed, and for the better. The Hippocratic Oath is old, and the translation that is used by physicians now is completely rid of the passage on abortion. Today’s version is more in the spirit of the original rather than a faithful translation.
History, as we well know, is written by men about men for men. That includes the history of medicine and of law. It is no accident that when Blackmun wrote the majority opinion for Roe v. Wade, he didn’t have much prior precedent to go on. The late Justice Scalia’s assertion — “You want a right to abortion? There’s nothing in the Constitution about that”— is obviously absurd because there were no female authors of the Constitution. Abortion politics were not even on their radar. Likewise, Hippocrates, Soranus and their like may have written about abortion because they were doctors, but their writings still don’t reveal anything like a uterus-carrying perspective on the matter.
If there is one thing we have seen clearly from the first day of oral arguments in Whole Women’s Health, it is that the debate is happening along gendered lines. This time around, instead of young Sarah Weddington facing down Justice Blackmun and his Hippocratic Oath, we have three experienced female Supreme Court justices grilling Texas Solicitor General Scott Keller. It will be in everyone’s best interest, I think, to ignore the ancient precedent. Because if we are going to keep using the ancient material in this way, at some point we will need to deal with the fact that the Greeks and Romans practiced post-birth abortion. Exposure at three days, anyone?
Tara Mulder is bowling for abortion access. Check it out here. She is also the managing editor of Eidolon and a visiting professor at Wheaton College in Norton, MA.
