Part 6

In answer to the second plea, the importance of several points must be borne in mind. It has been well put by Tardieu that it is wrong to commence, as advised by most authorities on the subject, by enumerating all the natural and accidental causes liable to have produced the abortion. On the contrary, the signs and proofs of criminal violence should first be sought, and these compared with the allegations of witnesses and the possibility of a natural or accidental origin. The traces of falls, contusions, and wounds must be found, not believed on mere allegation; coincidences must be guarded against, equally with untruth.

We have already laid down rules here available; that the state of the fœtus often affords proof of the cause of its expulsion, this being slow and natural, and depending on disease and predisposition, or not; that in flagrant malpractice, the use of alleged specifics, or of measures likely to produce direct miscarriage, or otherwise absolutely counter-indicated by the general health and constitution of the patient, a contradiction exists to the plea offered, in itself strong presumptive evidence of criminal intent; and that in certain cases this evidence becomes positive, as where, for instance, a sponge found or proved to have been inserted into the os uteri as a dilating tent, is alleged to have been intended as a mere pessary and placed in the vagina.

If the accused be a physician, presumed as he should be, acquainted with the great principles of practice, his only plea can be, where the means used were unjustifiable and proved such, and where the pregnancy was known to others, that he was ignorant of its existence. Liable as the profession are at any time to this charge, and easy as it is in almost every case, especially of instrumental procedure, for us to take such preliminary measures as would be likely to settle the question of the existence of pregnancy, or to request the presence of a witness to our act, it is unjust to ourselves and to each other to omit these precautions.

But if, on the other hand, the charge be utterly unfounded, it is probable, as I have already remarked, that contradictions in the testimony or the alleged facts could always be shown to exist, and the perjury thus exposed. It would be self-evident, were the accused proved to have been first consulted after the abortion had terminated, though not if it had only commenced.

V. ITS PERPETRATORS.

It is interesting, and at the same time of judicial importance to ascertain, so far as possible, the standing and character of the perpetrators of this crime.

In the first place, French statistics on the large scale show that the number of criminals, principals and accomplices, in that country at least, is in large excess to the instances of the crime, there having been in 183 trials, from 1826 to 1853, not merely 417 parties accused, but 213 convicted; and that in 75 per cent. of the prosecutions and convictions occurring, where the abortion is not induced by the mother herself, the offenders are women.[130] With us the same statement is, without doubt, equally true.

The part played by the mother, herself so often a victim, is almost always that of a principal, yet as laws now stand, she can scarcely ever be reached. The cases where she is under duress, by threat of other personal violence from her husband or seducer, and thus compelled to submit to abortion, or where the act is performed by his direction but without her knowledge, are so rare, that in a general statement they may be assumed not to exist. If the mother does not herself induce the abortion, she seeks it, or aids it, or consents to it, and is, therefore, whether ever seeming justified or not, fully accountable as a principal. We have already seen the position these mothers hold in the community, high as well as low, rich as well as poor, intelligent and educated as well as ignorant, professedly religious as well as of easy belief, not single alone, but married.

We turn now to their partners in guilt, more criminal than themselves; for whatever excuse the latter may suppose themselves to possess, the former can have none.

The accomplices in criminal abortion are of several classes, distinguishable in some respects from each other, especially by the relative frequency with which their part is played. They are:

Of women, I.—Friends and acquaintance. II.—Nurses. III.—Midwives and female physicians. Of men, IV.—Husbands. V.—Quacks and professed abortionists. VI.—Druggists. VII.—And worst of all, though fortunately extremely rare, physicians in regular standing.

In many cases, such at least is judged by the writer from his own observation, the abortion is not merely advised, but induced by some female _friend_, especially by one who has herself undergone, in her own person, the crime; perhaps without appreciable evil result,—but this is not necessarily the case, for even where such result is present and plainly in consequence, its connection with the true cause is frequently unsuspected or disbelieved.

It has been said that misery loves companionship; this is nowhere more manifest than in the histories of criminal abortion. In more than one instance, from my own experience, has a lady of acknowledged respectability, who had herself suffered abortion, induced it upon several of her friends, thus perhaps endeavoring to persuade an uneasy conscience that by making an act common, it becomes right. Such ladies boast to each other of the impunity with which they have aborted, as they do of their expenditures, of their dress, of their success in society. There is a fashion in this, as in all other female customs, good and bad. The wretch whose account with the Almighty is heaviest with guilt, too often becomes a heroine. So true is the case, that the woman who dares at the present day publicly or privately to acknowledge it the holiest duty of her sex to bring forth living children, “that first, highest, and in earlier times almost universal lot,”[131] is worthy, and should receive, the highest admiration and praise.

The ease with which an accomplice is procured, provided the idea originates with the victim herself, and is not suggested by another, is found among _nurses_ to be greatly increased. We separate them as a class from midwives and female physicians, with whom, though in this country not generally acknowledged or thought identical, they not unfrequently aim to be confounded. They are usually, and rightly, thought more familiar with the laws of health and disease, than the generality of their sex; they are, if doing their duty in his sight, seen to be treated with respect by the physician; they are commonly of mature age, supposed discreet, wise, and to keep their own counsel; they have had opportunities of gaining the confidence of the mother; many of them have themselves borne families. They are therefore approached with less hesitation, and are not always found proof against an offered fee.

What we have said of nurses applies with increased pertinency to _female physicians_ and _midwives_. These make it their claim, in rivalry of the male physician, that their schools and their practice are, like his, founded on those abroad, especially of Paris. Tardieu shows, in a total of 32 cases occurring in that city and collected by himself, that in 21—no less than 66 per cent., or two-thirds of the whole number reported—the crime was perpetrated by midwives.[132] This class frequently cause abortion openly and without disguise. They claim a right to use instruments, and to decide on the necessity and consequent justifiability of any operation they may perform. Where they establish private hospitals, professedly for lying-in women or not, their chances, previously great, of committing this crime and infanticide with impunity, become more than doubled. It has been found necessary in France for the police to exercise rigid surveillance over these establishments. In one instance, occurring at Grenoble, it was proved that within three years there had happened in the house thirty-one still-births at the full time, or deaths just after birth, and that the abortions and miscarriages had been almost innumerable.[133] In another case, to conceal the evidence of these truly _corpora delicti_, and to evade the law against secret burials, the midwife had established an understanding and a current account with an undertaker, who was accustomed to smuggle her fœtuses into his coffins, by the side of the corpses confided to him for burial. In still other cases, the victims are kept on hand, preserved in jars; private collections vieing in extent with those of legalized obstetric museums.

By these remarks we would not be supposed endeavoring to excite prejudice against female physicians and midwives, as such, or advocating their suppression. We are now merely considering this crime of abortion, in relation to which they are peculiarly and unfortunately situated. At present everything favors their committing the crime; their relations to women at large, their immunities in practice, the profit of this trade, the difficulty, especially from the fact that they are women, of insuring their conviction. Let better laws be enforced, and let public opinion be enlightened concerning the guilt of abortion, and the influence for evil of this class of offenders will in great measure be done away with.

Of male abortionists we have less to say. Their number is fewer abroad, bearing the proportion, as we have seen, of but one to every four, and their liability of being applied to, or consulted, is slight in comparison.

_Husbands_, though generally knowing to the offence of their wives, and often counselling it, probably but seldom attempt its commission themselves; yet instances of this do undoubtedly occur. In but a sixteenth of the cases reported by Tardieu, was any compulsory violence exerted over women by their husbands.

_Druggists_ and _professed abortionists_ are accountable for the greater number of the cases of the crime attributable to men. The latter class, though proportionally rare, yet abound in every city, and take all means of making themselves known. A knowledge of their alleged specifics, against the use of which, “at certain times,” the public are “earnestly cautioned,” etc. etc., is brought home to all our women, no matter how purely minded, and despite every care to the contrary, through the medium of the daily press; few papers, however professedly respectable or religious, proving able to refuse the bribe.

Druggists, as a class, are little more than the confessed agents of these villains. Even should they not directly recommend their nostrums, as, however, is frequently the case, they almost universally keep them on sale, labelled to catch the eye, and placarded on their walls. Like the publishers and vendors of obscene literature, they conceive they are not to blame for supplying a public demand, however much they themselves may have done toward its creation.

And in this connection we must again allude to the guilt of the public press, which has proved itself so constantly and so dangerously an accessory to the crime. It would be thought that in Massachusetts, for instance, a statute like the following might do something to check this license:[134]

“Every person who shall knowingly advertise, print, publish, distribute, or circulate, or knowingly cause to be advertised, printed, published, distributed, or circulated, any pamphlet, printed paper, book, newspaper, notice, advertisement, or reference, containing words or language, giving or conveying any notice, hint, or reference to any person, or to the name of any person, real or fictitious, from whom, or to any place, house, shop, or office where any poison, drug, mixture, preparation, medicine or noxious thing, or any instrument or means whatever, or any advice, directions, information, or knowledge, may be obtained for the purpose of causing or procuring the miscarriage of any woman pregnant with child, shall be punished,” etc. etc.[135]

The above statute, however, such is the public sentiment on this point, is not enforced, or is daily evaded. The press, if it choose, may almost annihilate the crime; it now openly encourages it.

It has been often alleged, and oftener supposed, that _physicians in good standing_ not unfrequently and without lawful justification, induce criminal abortion. This statement, whatever exceptional cases may exist, is wickedly false. The pledge against abortion, to the observance of which Hippocrates compelled his followers by oath,[136] has ever been considered binding, even more strongly of late centuries. The crime is recognized as such in almost every code of medical ethics; its known commission has always been followed by ignominious expulsion from medical fellowships and fraternity. If this direct penalty be at any time escaped, it is only through lack of decisive proof, bare suspicion even of the crime insuring an actual sundering of all existing professional friendships and ties; a loss that subsequent proof of innocence could hardly restore. Such is the unanimous feeling of the profession; to its credit be it said, that with but a single exception,[137] and this to his eternal disgrace, its writers are all agreed, abstractly considering the subject, on the sanctity of fœtal life. The instances where physicians in good standing are guilty of the crime, are of rare occurrence; the error that has prevailed on this point, originating from the self-assumed titles of notorious quacks and knaves. But no condemnation can be too strong for the physician who has thus forgotten his honor; who has used to destroy life, that sacred knowledge by which he was pledged to preserve it.

The criminal abuses likely to arise from the procurement of justifiable abortion by medical men, are so numerous, their own liability to be thought by the public criminally careless of fœtal life, or skeptical concerning its existence, is so great, that the subject is worthy special consideration. This I shall now devote to it.

VI. ITS INNOCENT ABETTORS.

We have referred to an apparent disregard of fœtal life, obtaining in the medical profession, as a prominent cause of the prevalence of criminal abortion. We now proceed to show that the opinion is not unfounded.

* * * * *

Premature labor, or obstetric abortion, may be justifiably induced by the physician for one of two reasons; either to save the life of the mother or that of her child. In each case it must be, absolutely and only, to save a life.

* * * * *

Performed for the child’s sake, it is evident that the operation can be only available during the last three months of pregnancy, for then only can the fœtus with any degree of probability be considered viable. We grant that there are a few cases on record where, born during the sixth month and even in the fifth, the child has survived; but it is equally certain, despite the popular notion concerning the mortality of eighth-month children, that the later the operation can be safely delayed, the better the chance for the infant’s life.

The rules for the induction of premature labor must, of course, vary for different cases. In this early stage of the inquiry, it is perhaps impossible to state them precisely, but they may still be approximately arrived at.

1. The operation, performed for the child’s sake, is but seldom required; and in general,

(2.) only after the commencement of the seventh month of pregnancy.

3. It must be clearly indicated; and

(4.) must be delayed as long as is consistent with the child’s safety.

5. Its means must be those which are most efficient, and safest for the child.

We have already stated that the induction of abortion before the seventh month, undertaken for the child’s sake, must be generally useless; and therefore, as attended with some degree of danger to the mother, generally unjustifiable. As the profession are nearly united on this point, its further discussion is here unnecessary.

We have asserted that the cases where prematurely induced labor is required for the child, are comparatively rare. We now add that while in some respects they are more frequent, in others they are less so than is generally supposed. To necessitate it, there must be disease or deformity on the part of the mother, or disease on the part of the fœtus or its appendages.

It is most frequently performed to avoid the alternative of craniotomy, the necessity of which, unless extreme, can manifestly only be known with certainty, before the expiration of pregnancy, from the experience of past labors. But here too much caution cannot be exercised; the rules of the books and of accepted authorities are not to be blindly followed.

Craniotomy at the full time is still too frequently performed:

Where it has been suggested by the character of a previous labor, children are often, or might be, born living;

Where it seems indicated by direct exploration, as ruled even by recent writers, children are sometimes, or might be, born living;

Where it was formerly thought absolutely essential, the progress of obstetric science has now rendered it often unnecessary.

It is proper that we consider these points, for they bear directly on the question at issue concerning criminal abortion.

It is known that the sex of children exercises an appreciable influence upon the result of labors at the full time, as regards the possibility of their passing alive, unaided or at all, through the pelvis, and as regards the length of the labor, which also progressively endangers the life of the mother and their own; the average female fœtus, in cases at all difficult, having the advantage over the male by its inferiority in size, especially important in the cranial diameters. It is unnecessary for us to do more than refer to the facts by which these assumptions are proved.[138] Where, therefore, craniotomy has been found necessary in a former labor, the child then being male, in another labor a female fœtus may often pass uninjured. However this argument may be lessened in value by the impossibility of previously ascertaining the sex, it is strengthened in the doctrine of chances, by the number of the labor and the sex of the former children; and by the fact that first labors are generally most difficult, whatever the sex of the child.

Furthermore, cases will suggest themselves to most practitioners of experience, in which from difference in the character of the labor or without apparent reason, children are born living at the full time, males, of large size, and presenting by the vertex, where craniotomy had previously, perhaps repeatedly, been performed. An instance of this has occurred to the writer, where the patient had been advised to early abortions from alleged physical incapacity of ever bearing living children; he delivered her, without difficulty, of a large-sized and living boy, at the full time.

Again, it may happen that in labor at the full period, craniotomy may seem decidedly indicated and advisable, but for one reason or another may not be performed, and yet the child, unaided, be born living. The writer’s experience furnishes him with two illustrations of this class: one of them occurred in 1851, the patient his own, Drs. S. sen., and C., in consultation; the other was seen at Edinburgh, in 1854, in the practice of his friend, Dr. G. W. In both cases, permission was refused to operative procedures, the patients being Catholic, and the physicians unable conscientiously to pronounce the fœtus already dead, while the possibility of intra-uterine baptism was not recollected; in both instances the children were born living, and without instrumental aid.

In other cases, where from deformity previously diagnosticated, craniotomy is pronounced necessary if the patient should go her full time, she may do so, the labor be unassisted, and the child yet escape with its life. I instance a remarkable case for some time under my own charge at the Boston Lying-in Hospital, delivered by one of my colleagues, Dr. Dupee, and subsequently reported by Dr. Read.[139] The pelvis was here equably contracted, and to a great degree, but from some difference of opinion, partly as regarded the justifiability of premature labor as compared with craniotomy, the patient was allowed to go her full time. Both mother and child did well.

Finally, by turning, the use of the long forceps and of anæsthesia, children are now constantly saved, where formerly craniotomy and their consequent destruction would have been absolutely indicated. These processes, with the introduction of each of which as an alternative a single name is imperishably connected, are now successfully employed by very many of the profession;[140] they have each of them saved to the writer the disagreeable necessity of fœtal destruction. Where, however, one life is thus preserved, there are still multitudes unnecessarily, and, therefore, unjustifiably, sacrificed.

The comparative frequency of craniotomy in the different countries of Europe is in this connection worth noticing.

The operation is performed, in

Germany once in every 1944 labors; Paris ” ” 1628 labors; France, at large ” ” 1200 labors; Vienna ” ” 688 labors; England ” ” 220 labors; Ireland, formerly ” ” 128 labors;[141] ” at present, Dublin Hospital, 1854, ” ” 105.7 labors.[142]

The remarkable difference between the practice on the continent and in England, so suggestive to us in this country, is undoubtedly owing to the fact that in Catholic States greater value is attached to the life of the child than “in Protestant States, as Britain, where the child is always sacrificed to save the mother.”[143] The immense excess of embryotomy cases in Catholic Dublin furnishes no exception to this rule, drawn as they are from hospital practice under Protestant control.

So far proof by deduction. In many cases involving the question of craniotomy, that operation is not required; in some of them, not even the induction of premature labor.

Two classes of cases remain, each affording more direct evidence; those where craniotomy being absolutely indicated if the patient were allowed to go her full time, that operation is, and those where it is not performed.

Craniotomy, being necessarily fatal to the fœtus, is indicated only to save the mother’s life; to be avoided when any other alternative giving the fœtus a chance of life, and not more than equally hazardous to the mother, can be resorted to. Especially is this the case when it is compared with the induction of premature labor, attended as is the latter, despite a certain amount of danger of its own, with great probability of saving the child, and with decidedly lessened risk to the mother; for craniotomy not merely requires the use of murderous instruments, dangerous to all tissues they may approach or be in contact with, but the operation is usually, though often very improperly, delayed till late in labor, and therefore till the mother’s chances of recovery have been proportionally lessened. Premature labor, on the other hand, though of course involving some risk to the child, is not necessarily fatal to it; nor is it usually so, when properly performed. That there is a choice in this respect between the means employed, will hereafter be shown.