Part 10

The distinction alluded to with regard to quickening, is allowed by an acknowledged legal authority[221] to be at open variance not only with medical experience, but with all other principles of the common law.[222] The civil rights of an infant in utero are respected equally throughout gestation; at every stage of which process, no matter how early, it may be appointed executor,[223] is capable of taking as legatee[224] or under a marriage settlement,[225] may take specifically as “a child” under a general devise,[226] and may obtain an injunction to stay waste.[227]

When, in an attempt to procure an abortion, there is an evident intent to produce the death of the mother, and her death does actually occur, such attempt becomes murder at common law;[228] but when nothing more is intended than to commit the misdemeanor, it is only manslaughter,[229] being an instance of homicide from individual malice toward a third party, when the fatal blow falls on the deceased by mistake. It has been said, however, that this last is not the true doctrine, the destruction of an infant in utero being, even at common law, in some respects felonious, and the act in its nature malicious and deliberate, and necessarily attended with danger to the person on whom it is performed.[230]

The use of violence upon a woman, with an attempt to produce her miscarriage without her consent, rules Chief Justice Shaw, of Massachusetts, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt, the death of the mother ensues, the party making such an attempt, with or without her consent, is guilty of murder, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where in like manner there is the consent of the parties.[231]

Though to kill the fœtus in utero is as such, by the common law, no murder, yet if it be born alive, and die subsequently to birth from the wounds it received in the womb, or from the means used to expel it, the offence becomes murder in those who cause or employ them.[232] If a person, intending to procure abortion, does an act which causes the child to be born earlier than its natural time, and therefore in a state much less capable of living, and it afterwards die in consequence of such premature exposure, the person who by this misconduct brings the child into the world, and puts it into a situation in which it cannot live, is guilty of murder, though no direct injury to the child be proved; and the mere existence of a possibility that something might have been done to prevent the death, does not lessen the crime.[233]

The earlier English statutes, from their peculiar phraseology, held pregnancy essential for the commission of the crime,[234] yet an attempt to produce abortion is now indictable at common law,[235] though it fail by reason of the woman being, in fact and contrary to the belief of the party, not pregnant.[236] For though as no man would attempt what he absolutely knew he could not in fact perform, nor would be deemed in law to have so attempted, and as every one being conclusively presumed to understand the law, no man can legally intend what is legally impossible, the rule as to facts is different; for men are not conclusively held by the law to know facts. And if a man fails in what he undertakes, because of an impossibility in fact, which he did not know, he is just as answerable as if the failure were from any other cause.[237]

We have seen the mistaken basis, as regards the criminality of abortion, on which the common law is founded, and that while it recognizes the distinct existence of the fœtus for civil purposes, it here considers its being as totally engrossed in that of the mother.

A recent authority thus accounts for and defends the mistake. The wealth and prosperity of the country, it is assumed, and the growth and efficiency of its population, are alike matters of general concern, and therefore the law takes them under its care. As to population, there are in civil jurisprudence such rules, as that the husband may hold the lands of his deceased wife during his life, if before her death a living child was born, but not otherwise; the law thus offering, in effect, a reward for issue. It does not compel matrimony, because that would be an infringement of private rights; but for the same end, it does punish abortions.[238]

Another writer has also implied that the common law, in making fœticide penal, had in view the great mischiefs which would result from even its qualified toleration: namely, the removal of the chief restraint upon illicit intercourse, and the shocks which would be sustained thereby by the institution of marriage and its incidents; among which the delicacy of women.[239]

In unison with these opinions, Judge Coulter, of Pennsylvania, has ruled, that “it is not the murder of a living child which constitutes the offence, but the destruction of gestation.”[240]

* * * * *

If our previous assumptions of the actual character of criminal abortion be granted, and we believe that they have been proved to a demonstration, it must follow from the subsequent remarks that the common law, both in theory and in practice, is insufficient to control the crime; that in many States of this Union, the statutory laws do not recognize its true nature; that they draw unwarrantable distinctions of guilt; that they are not sufficiently comprehensive, directly allowing many criminals to escape, permitting unconsummated attempts, and improperly discriminating between the measures employed; that they require proofs often unnecessary or impossible to afford; that they neglect to establish a standard of justification, and thereby sanction many clear instances of the crime; that by a system of punishments wholly incommensurate with those inflicted for all other offences whatsoever, they thus encourage instead of preventing its increase; and that in many respects they are at variance, not merely with equity and abstract justice, but with the fundamental principles of law itself.

“It is to be hoped,” has forcibly been written, “that the period is not far remote, when laws so cruel in their effects, so inconsistent with the progress of knowledge and civilization, and so revolting to the feelings and claims of humanity, will be swept from our statutes.”[241]

In a similar trust, it now behooves us to consider whether, and in what manner, the difficulties in the way of generally suppressing the crime of abortion can be overcome.

VIII. CAN IT BE AT ALL CONTROLLED BY LAW?

To this important question I do not hesitate to give an unqualified answer in the affirmative. The fact that criminal abortion is not controlled by law anywhere, cannot be entertained as a valid argument to the contrary of this assertion; for it is equally the fact, as we have seen, that laws against abortion do not as yet exist, which are in all respects just, sufficient, and not to be evaded.

It is evident that in aiming to suppress this crime, the law should provide not merely for its punishment, but indirectly as well as directly, and so far as possible, for its prevention. The punishment of a crime cannot be just, if the laws have not endeavored to prevent that crime by the best means which times and circumstances would allow,[242] and this is to be accomplished by a twofold process: by rendering on the one hand its detection more probable, and on the other its punishment more certain.

As indirect though important measures for the former of these ends, we have already mentioned laws for registration,[243] and against concealment of births and secret burials. As a single proof of their possible influence in this respect, out of many that might be adduced, we instance the fact that in Paris the number of premature fœtuses deposited at the Morgue, during the nine years, from 1846 to 1854, inclusive, was found to exceed by more than two-thirds that of the full decade just preceding, from 1836 to 1845.[244] To render this difference more apparent, we have compiled the following table:—

Age of fœtuses deposited. Ten years: Nine years: 1836-1845. 1846-1854. From 2 to 3 months 21 58 ” 3 to 4 ” 35 73 ” 4 to 5 ” 56 102 ” 5 to 6 ” 69 82 --- --- Total 181 315

Part of this advance, it is true, is attributable to the increase in the population of Paris, and in the prevalence of criminal abortion, but in great measure it is clearly owing to the enforcement of a more rigid law against secret burials. The above remarks are strikingly corroborated by the fact that of trials for the crime, and we must not forget that these bear but a small ratio to the whole number of cases preliminarily investigated,[245] there were in France, during the latter of these periods, fully four times the number occurring from 1836 to 1845.

The establishment of foundling hospitals, by the State governments, has been urged as a preventive of the crime, and, on the other hand, fears have been expressed lest the same means should increase it. For ourselves, however, and from some experience in such cases, we believe that these fears are groundless, and that with equal justice might they be entertained of every large charity having for its end the improvement, sanitary or otherwise, of the masses of society.

We have quoted a statute existing in Massachusetts, though practically unenforced, against one great agent in the increase of abortion, an abuse of its license by the public press. Were such laws to become general, and to be faithfully executed, and were it also made penal to sell any drug, popularly known as emmenagogue, except as advised by physicians, just as the sale of direct poisons is, or should be, controlled by law, the present system of openly advertising by abortionists would undoubtedly be brought to a close.

In no matter is it of more importance than in cases of suspected criminal abortion, that coroners should be intelligent and well educated medical men; and we could wish that this point might have received especial attention from Dr. Semmes, in his late admirable report to the American Medical Association.[246] In the sudden excitement of an inquest, the guilty are more likely than at a later period to be off their guard, and evidence may often be elicited at this time, which, at the subsequent trial, it would be impossible to obtain. There can be no question of the importance of this point; the coroner should be skilled in all that pertains to obstetric jurisprudence; and if similar knowledge were more generally possessed by other officers of justice, attorney, juror, and judge, a far greater number of convictions, under a proper law, would be secured.

As regards the more direct statutes, we have already considered their important points.

“In order to render laws effectually preventive,” has wisely been said, “they should be consistently framed, and based on justice.”[247] In accordance with this truly axiomatic doctrine, and with various rulings of the courts, already quoted, no proof should be demanded which is not necessitated by the actual character of the crime. We have seen that neither in intent nor in fact is this an attempt against the person or life of the mother. If she die in consequence, the offender is already amenable for it as homicide; in the absence of any special statute, at common law. The crime, both in intent and in fact, is against the life of the child.

The attempt being proved, it is unnecessary that it should have been consummated, not merely the completion of a crime bringing its punishment, but also certain overt acts with intent to the perpetration; nor is it requisite that any injury, specific or general, should have been inflicted upon the person of the mother.

The offence being of equal guilt throughout pregnancy, proof of quickening, the incident, not the inception of vitality,—indicating neither the commencement of a new stage of existence, nor an advance from one stage to another,—[248] and, therefore an element without the slightest intrinsic value, should not be required.

The crime of abortion should be considered to include, as it does in the absolute fact of moral guilt, all cases of attempted or intentionally effected destruction and miscarriage of the product of impregnation; and this, whether it be living or dead, normal or abnormal, which last expression equally comprehends instances of moles, hydatids, extra-uterine conception, acephalous, anencephalous, and other monsters.

Proof should not, as now, be required of intent to destroy the child.[249] This should be considered shown by the intent to produce miscarriage, in the absence of lawful justification therefor; the act in all stages of pregnancy being attended with great danger to the child, and, in much more than a moiety of the period, necessarily fatal to it.

The attempt being considered criminal, it follows that proof of pregnancy is not necessary, and that conviction should be had though it were proved that pregnancy did not exist,[250] even that the woman on whom the abortion was attempted, however unlikely, was still a virgin.[251]

No discrimination should be made as to the means criminally employed, and an escape thus afforded to the guilty; as we have seen still obtaining in Great Britain and many of our own States.

The mother, almost always “an accessory before the fact,” or the principal, should not, as now, be allowed almost perfect impunity. There is no valid reason for such exemption, there is every reason against it. The woman is covered by the laws of most continental nations of Europe,—France, Austria, Germany, Bavaria, and Italy,—and by many of them her punishment, if married, is greatly increased. Similar severity is also exercised in these countries against the father of the fœtus, if he too is implicated in the crime.

To allow that abortion is extenuated in the unmarried, it has been said, will “to the moral and political philosopher appear to have exalted the sense of shame into the principle of virtue, and to have mistaken the great end of penal law, which is not vengeance, but the prevention of crime. Law, which is the guardian and bulwark of the public weal, must maintain a steady and even rigid watch over the general tendencies of human actions.”[252] But, on the other hand, “the measure of punishment should be proportionate, as nearly as possible, to the temptation to offend, and to the kind and degree of evil produced by the offence.”[253]

We have seen the increase in moral guilt, and of opportunity for commission and for escape, in the case of nurses, midwives, and other classes of persons, who, from their profession, are brought more directly into contact with pregnant women. By the penal code of Napoleon the First, remarkable in so many respects for the wisdom of its provisions, an increase of punishment was enacted for abortion criminally induced or advised by physicians, surgeons, or other officers of health, including midwives, or by druggists;[254] their guilt being enhanced by their greater opportunities and knowledge.

Punishments for the crime of abortion should not, as is now generally the case, be so framed as to render the statute, in fact, if not in name, simply nugatory. Were the murder of adults to be made answerable by merely a year or two in prison, far more convictions than at present would undoubtedly be secured; but it is certain that the instances of the crime would be fearfully increased. We have reason to believe that it is precisely thus with the case in hand.

A standard of justification for the instances of necessary abortion should be fixed by law. If perfection in this respect be impossible, let the nearest approach be made to it that can. Since my remarks upon the relative rights of the mother and fœtus to the chance of life in doubtful cases were published in a former paper of the present series, I have received from Dr. Rattenmann, late of Tübingen, an essay, written by himself, in which this question is discussed at length, and the repetition of abortion upon the same individual, in the early months of pregnancy, is defended. I have carefully considered the several arguments advanced by the gentleman, and am compelled to adhere to the views I have already expressed.

* * * * *

In presenting a report upon the matter, in 1857, by direction of the Suffolk District Medical Society of Massachusetts, the writer offered the draft of a law, prepared after much thought and consultation with legal as well as with medical men, and embodying the suggestions made above. This was intended for the consideration of the Legislature of the State, in the hope that it might be of aid toward a modification of the present defective law.

Having seen no reason to change the opinions then avowed, but, on the contrary, receiving constant confirmation of their truth, I now present the essential portions of that draft, acknowledging most willingly that its wording may, perhaps, with safety, be simplified and condensed; but contending, in all sincerity and earnestness of purpose, that its general tenor is what justice and humanity alike, and imperatively, demand at the hands of society.

“Whoever, with intent to cause and procure the miscarriage of a woman, shall sell, give, or administer to her, prescribe for her, or advise, or direct, or cause, or procure her to take any medicine, or drug, or substance whatever, or shall use, or employ, or advise any instrument, or other means whatever, with the like intent, unless the same shall have been necessary to preserve the life of such woman, or of her unborn child, and shall have been so pronounced (in consultation) by two competent physicians; and any person, with the like intent, knowingly aiding and assisting such offender or offenders, shall be deemed guilty of felony,” etc. etc.; “and if such offence shall have been committed by a physician, or surgeon, or person claiming to be such, or by a midwife, nurse, or druggist, such punishment may be increased at the discretion of the court.”

“Every woman who shall solicit, purchase, or obtain of any person, or in any other way procure, or receive, any medicine, drug, or substance whatever, and shall take the same, or shall submit to any operation or other means whatever, or shall commit any operation or violence upon herself, with intent thereby to procure a miscarriage, unless the same shall have been by two competent physicians (in consultation) pronounced necessary to preserve her own life, or that of her unborn child, shall be deemed guilty,” etc. etc.; “and if said offender be a married woman, the punishment may be increased at the discretion of the court.”

It was also advised that the encouragement of criminal abortion, by publication, lecture, or otherwise, or by the advertisement, sale or circulation of such publication, should be made penal, and that the present well worded statute against the personal advertisements of abortionists, and their nostrums, should be rigorously enforced.

To the words now quoted were added, and they are still applicable, the following:—

“We have aimed at a statute, which, while it better defined this atrocious crime, and covered the usual grounds of escape from conviction, established also the proper standard of competence in all medical questions involving issues of life and death. We believe that it would be the means of preventing much of the present awful waste of human life. But enforce such a law, and the profession would never allow its then high place in the community to be unworthily degraded; nor, as now, would those be permitted, unchallenged, to remain in fellowship, who were generally believed guilty, or suspected even of this crime.”[255]

In the same belief, strengthened by nearly three years careful reflection, that criminal abortion can, to a great extent, be controlled by law, if but the community so will, we proceed to the last division of our subject, and discuss the duty of the medical profession toward the ultimate suppression of the crime.

IX. THE DUTY OF THE PROFESSION.

I have stated that the prevalence of criminal abortion is in great measure owing to a seeming neglect of fœtal life on the part of medical practitioners, and that in other degree it is attributable to ignorance by the community of the actual character of the offence, an ignorance of physiological facts and laws; and on both these points abundant proof has been afforded of the truth of my assertions.

I have also stated that medical men, in all obstetric matters, are the physical guardians of women and their offspring; a proposition that none can deny.

We have seen that unjustifiable abortion, alike as concerns the infant and society, is a crime second to none; that it abounds, and is frightfully on the increase; and that on medical grounds alone, mistaken and exploded, a misconception of the time at which man becomes a living being, the law fails to afford to infants and to society that protection which they have an absolute right to receive at its hands, and for the absence of which every individual who has, or can exert, any influence in the matter, is rendered so far responsible.

Under these circumstances, therefore, it becomes the medical profession to look to it, lest the _whole_ guilt of this crime rest upon themselves.

And, in the first place, it might be asserted with some truth, that such is indeed the case. For, on the one hand, it was from physicians, as is proved by early medical literature, that the mistaken notions, both of the law and of the people, regarding intra-uterine vitality, were derived; and on the other, the apathy and silence still existing on this subject among medical men, though thousands and hundreds of thousands of human lives are thus directly at stake, and are annually sacrificed, can only be explained on one of two suppositions,—either that we do not yet really believe in the existence of fœtal life, though professing to do so, or that we are too timid or slothful to affirm and defend it. By the one alternative a gross lie seems proved; by the other a degrading and strange inconsistency.

But, I believe, this apparent negligence proceeds only from ignorance of the real duty of the profession. It is my aim, while setting forth a deliberate and carefully prepared opinion upon this point, to inspire, if possible, in my fellow-practitioners throughout the land, somewhat of the holy enthusiasm sure in a good cause to succeed despite every obstacle, and an earnest, uncompromising hostility to this result of combined error and injustice, the permitted increase of criminal abortion.

Enough has already been said to show that there is need of increased vigilance on the part of medical men, lest they themselves become innocent and unintentional abettors of the crime.[256] If, on the other hand, the community were made to understand and to feel that marriage, where the parties shrink from its highest responsibilities, is nothing less than legalized prostitution, many would shrink from their present public confession of cowardly, selfish and sinful lust. If they were taught by the speech and daily practice of their medical attendants, that a value attaches to the unborn child, hardly increased by the accident of its birth, they also would be persuaded or compelled to a similar belief in its sanctity, and to a commensurate respect.