By KELSEN HANS
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The diyet to be paid in the 1859 law, for example—nebulous as it is—can be seen as compensation for simultaneous physical assaults on the fetus as a person and the womb as a space. The imprisonment of those who engage in non-violent abortion, however, is a response solely to a political and biological attack on the womb as a space. The crime results in neither death nor wounding, in other words, but diyet, even in its absence, is playing a role here in the elaboration of Ottoman rather than French abortion legislation.
To the extent, for example, that abortion is simultaneously an act of violence, diyet must be paid. The question of who will receive the payment—the woman or the “heirs” of the fetus—is, however, left open, thereby also leaving open the question of whether the behavior is criminal because of the wound to the woman or whether it is criminal because of the death of the fetus. The fact that when abortion occurs non-violently, diyet is not prescribed seems to imply that the issue at stake is wounding (as it was in the sixteenth century).
As part of this task, the new midwives were required to register births and verify and record the cases of death among women … [T]hey were to 60 Hatem 2000, 68, 70. ” McLaren 1978, passim. 62 Reagan 1991, 1254. 63 Hatem 2000, 70. Reproduction and Race Suicide 37 receive one piaster for each veriﬁcation of death … [U]nder these new policing rules, the professional midwives would recognize abortions that went wrong and would list them as the cause of death. 64 Finally, in early twentieth century France, government reports after the war [World War I] referred to three hundred thousand to ﬁve hundred thousand abortions a year … [D]octors who were opposed to all forms of fertility control found it politic to attribute the entire shortfall in French fertility solely to abortion.