Part 8

Again, it is undoubtedly the case that in all cases of maternal death during pregnancy, where the fœtus has arrived at the period of viability, its immediate extraction by the Cæsarean section should be effected. We have already referred to this subject, and Kergaradec, who has well written upon it, lays down the maxim that the operation should always be performed, even in the fifth month of pregnancy.[159] In some cases, of placenta prævia, for instance, where the chances are always more or less against the child’s life, success is less probable; but this in no wise invalidates the necessity of the operation. The writer has himself performed it in the complication instanced, and in vain; but he would none the more hesitate, on this account, to repeat it. There can be no reason against the procedure in any case, and by it the child may possibly be saved. In the words of an older writer, “Est enim inhumanum, post obitum matris, fœtui pereunti et suffocari parato manus auxiliares denegare, et sæpè viventem adhuc cum matre mortuâ eodem tumulo contegere et obruere. Idcirco jurisconsulti eum _necis_ reum damnant, qui gravidam sepelierit non prius extracto fœtu.”[160]

A question has been raised concerning the rights of relatives in preventing the physician from such discharge of his duty. It has been asserted that “the father has not only the natural right of his relationship, but legal power; for Dr. Lever recently mentioned that he had consulted Dr. Alfred Taylor to know whether he would be justified in performing Cæsarean section after the death of the mother, without the consent of the father, as it appeared unjustifiable homicide to allow the infant to die. Dr. Taylor gave his opinion that, in law, the infant belonged to the father,—the infant with the life thereof,—and that if Dr. Lever touched it, even to rescue it from death, an action would lie against him.”[161] I must, however, declare such doctrine to be false and pernicious. If signs of the child’s life remain, no physician should hesitate endeavoring to preserve it, unless restrained by actual force. I reiterate my conviction that such neglect, or seeming neglect, of fœtal life is an actual wrong, both against the individual and against society.

Similar points in which physicians are directly interested, as tending by their apparent disregard of fœtal life to render themselves innocent abettors of criminal abortion, are not uncommon. Such are neglect of efforts to prevent miscarriage when threatening, or where it has become an established habit; and of attempts at resuscitating still-born children where there is the slightest chance of success, and success has now been rendered much more probable by the methods of Marshall Hall and Silvester; the performance of operations of any kind upon a pregnant woman, even tooth-drawing,[162] that might be delayed; the careless or unnecessary use of ergot; the relying upon a single and unaided opinion, where not one life only, but two, may be endangered.

Other instances might be adduced; but enough has already been said to prove that the importance of the subject we are considering, and the responsibilities resting upon the profession regarding it, demand as I have elsewhere suggested,[163] that physicians should possess, should acknowledge, and should govern themselves by, an _Obstetric Code_—the necessity of which will be made even more manifest, as we proceed in our investigation of questions pertaining to Obstetric Jurisprudence. We have referred to some of its leading principles, but have done no more than faintly foreshadow them.

Distressing in the retrospect, inconvenient frequently in the present,[164] such a Code would undoubtedly prove; but it is demanded of the profession by the progress of our science, by humanity, morality and religion. Were the facts in the case more generally known, and the existence and sanctity of fœtal life more universally appreciated, it would be also demanded by public opinion.

We have now seen that “the absurd enactments still remaining on the statute book, the careless indifference with which society views the crime, the reluctance with which means are adopted to prevent its occurrence, its increase, and its frequent induction by obstetricians, are all evils which loudly and imperatively call for the closest investigation.”[165]

We proceed to the other relations of criminal abortion, more especially to those immediately pertaining to the claims and course of justice.

VII. ITS OBSTACLES TO CONVICTION.

We have already seen that there are special, though, it is to be hoped, not wholly insurmountable causes for the existing prevalence of abortion. It now becomes our duty to consider some of these reasons in detail, in so far as they relate to and obstruct the course of justice.

It would seem, from what has been previously said, that little doubt could be entertained of the inefficacy of our present statutes against abortion. There are few of the States whose laws on this point are so wisely and completely drawn as in Massachusetts; yet, as they there stand, they cannot, as such, be enforced. In that Commonwealth, according to the reports of the attorney-general, during the eight years from 1849 to 1857, omitting 1853—as there seems to have been no report rendered for that year—there were, as we have seen, 32 trials for abortion, and not a single conviction!

A committee of the State Medical Society of Massachusetts, to whom the propriety of a professional appeal to the Legislature for more protective statutes had been referred by the District Society of Boston, having reported against such action, on the ground “that the laws of the Commonwealth are already sufficiently stringent, provided that they are executed,”[166] it becomes the more necessary for us to strike at the root of the whole matter, and to show, if possible, why conviction, unless in case of the death of the mother, cannot at present be obtained.

It has been thought, even publicly argued, that in the fact that statutes against abortion are almost everywhere not only not enforced, but not attempted to be enforced, there is afforded strong evidence of the existence of an ultimate and absolute impossibility of thus meeting the crime. The idea, though a fallacious one, is yet attributable to an important and evident cause.

That the prevalence of abortion is in great measure owing to ignorance of guilt, on the part of the community at large, we have shown. We now assert that its futile prohibition by the law, its toleration, are plainly in consequence of similar ignorance on the part of legislators, and of officers of justice.

Our communities form their own laws, and, therefore, as was pointed out at the commencement of our remarks, these must necessarily bear the stamp of public opinion; while the officers by whom they are to be enforced—juror, attorney, judge—looking to the only source possible for their enlightenment on this subject, to medical men, have hitherto found but few bold and honest statements,[167] and these unindorsed by the mass of the profession; or, in the total silence, a practical sanction of the popular belief. This is no exaggeration; the assertion is fully borne out by facts. Need we wonder, then, that the laws are not enforced, that indeed their enforcement is not attempted? But this first and great cause, it is apparent, is by no means an essential one.

We need add nothing to what we have already said, of those obstacles to conviction, arising from circumstances common in greater or less degree to other crimes;—the difficulties of detection and of obtaining proof, however great these are allowed to be,—but we proceed at once to consider the laws themselves by which in this country the crime of abortion is attempted, or is expected to be suppressed.[168]

The arguments by which we have shown the mistaken premise on which the common law of England, as covering this crime, is founded, and by adoption, the common law of this country, will not have been forgotten. We shall perceive that similar reasoning applies with equal force to the special statutes, where such exist, of almost every State in the Union.

* * * * *

In the following States, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, Florida, Kentucky, Tennessee, Iowa, and the District of Columbia, there appear to exist no statutes against abortion, and the crime can only be reached at common law and by the rulings of the courts.

In the case of the District of Columbia, all rulings are based on the common law, the old English statutes, from Elizabeth to George II., and the old colonial statutes of the Province of Maryland, down to 1800, the period of cession to the United States of that portion of Maryland lying on the north side of the Potomac, now included in the federal district.

The later English statutes, even those of George IV., being enacted subsequent to the separation from the mother country, are not recognized in the District. In the State courts, so far as the rules and principles of the common law are applicable to the administration of criminal law, and have not been altered or modified by acts of the colonial or provincial government, or by the State Legislature, they have the same force and effect as laws formally enacted.[169] In the States referred to, therefore, as having no special statutes of their own, the later English statutes, though not of absolute force, are to a certain extent undoubtedly acknowledged.

* * * * *

By the common law of England, as stated by Blackstone:—

“If a woman is quick with child, and by a potion or otherwise, killeth it in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was by the ancient law homicide, or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor.”[170] “But if the child be born alive, and afterwards die in consequence of the potion or beating, it will be murder.”[171]

By this law it is necessary to furnish proof not merely of pregnancy, but of quickening; no one besides the mother can be reached, save in the rare instance of beating; it is often impossible to prove that a child, born living, has died in consequence of means used upon itself or its mother before the birth.

* * * * *

The Ellenborough act,[172] passed in 1803, runs thus:—

“If any person shall willfully and maliciously administer to, or cause to be administered to, or take any medicine, drug, or other substance or thing whatsoever, or use, or cause to be used or employed, any instrument, etc., with intent to procure the miscarriage of any woman, not being, or not being proved to be, quick with child at the time of committing such thing, or using such means, then, and in every such case, the persons so offending, their counselors, aiders and abettors, shall be and are declared guilty of felony, and shall be liable,” etc. etc.; if before quickening, to fine, the pillory, stripes, or transportation; if after quickening, to death;—but in the clause providing for the latter case, mention of instruments was omitted.

* * * * *

Punishment was thus extended to the crime prior to quickening; and besides the actual perpetrator, to those counseling and assisting therein. For its commission after quickening, capital punishment was restored; but by a strange oversight, no penalty was provided for the cases occurring at this period, where the abortion was induced by instrumental or other mechanical violence.

To remedy this defect another act, that of Lord Lansdowne,[173] was substituted in 1828:—

“If any person, with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument, or other means whatever, with the like intent; every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon;” if the woman were “not, or not proved to be, then quick with child,” the offence was still felony, and punished by transportation, or imprisonment and stripes.

By this enactment, the mistaken belief in a difference of guilt, according to the period of fœtal life, was still retained. For which reason, and in the false hope that by again abolishing capital punishment, juries would more frequently decide in accordance with fact, the English law has later, and during the present reign, still further been modified and rendered more just, simple, and comprehensive.[174]

* * * * *

“Whosoever, with the intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, shall be guilty of felony, and being convicted thereof, shall be liable,” etc. etc., to transportation or imprisonment.

* * * * *

By the present English statute, the woman herself can hardly yet be reached; many convictions must still be lost from failure to prove the agent either a poison or noxious thing; in other respects, however, it is well drawn. Attempts at the crime are covered, and proof is not required of pregnancy, or of actual injury to the mother.

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So far the instances in this country of an absence of special statutes. Where such exist, they may be variously classified. Reserving for a little all other considerations, we find them at once falling into four great divisions.

I. Those acknowledging the crime only after quickening has occurred:—

Connecticut, Mississippi, Arkansas, Minnesota, Oregon.

II. Those acknowledging the crime throughout pregnancy, but supposing its guilt to vary with the period to which this has advanced:—

Maine, New Hampshire, New York, Ohio, Michigan.[175]

III. Those acknowledging the crime throughout pregnancy, unmitigated; but still requiring proof of the existence of this state:—

Vermont, Massachusetts, Illinois, Wisconsin, Virginia, Missouri, Alabama, Louisiana, Texas, California.[176]

IV. That, like the present English statute, requiring no such proof, and punishing also the attempt, even though pregnancy do not exist:—

Indiana.

Briefly to recapitulate these groups:—

Maine, Class II. New Hampshire, ” II. Vermont, ” III. Massachusetts, ” III. Rhode Island, no statute. Connecticut, Class I. New York, ” II. New Jersey, none. Pennsylvania, none. Delaware, none. Maryland, none. District of Columbia, none. Virginia, Class III. North Carolina, none. South Carolina, none. Georgia, none. Florida, none. Alabama, Class III. Mississippi, ” I. Louisiana, ” III. Texas, ” III. Ohio, Class II. Indiana, ” IV. Illinois, ” III. Michigan, ” II. Kentucky, none. Tennessee, none. Missouri, Class III. Arkansas, ” I. Wisconsin, Class III. Iowa, none. Minnesota, Class I. California, ” III. Oregon, ” I.

We now proceed to the consideration of these statutes in detail, and for this purpose, present them at length.

* * * * *

I. States acknowledging the crime only after quickening:—

CONNECTICUT.—“Every person who shall willfully and maliciously administer to, or cause to be administered to, or taken by, any woman then being quick with child, any medicine, drug, noxious substance, or other thing, with intent thereby to produce the miscarriage of such woman, or to destroy the child of which she is pregnant, or shall willfully and maliciously use and employ any instrument or other means to produce such miscarriage, or to destroy such child, shall suffer imprisonment in the Connecticut State prison for a term not less than seven, nor more than ten years.”[177]

MISSISSIPPI.—“The willful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be deemed manslaughter.

“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for such purpose, shall be deemed guilty of manslaughter.”[178] Punishment, by fine not less than one thousand dollars, or imprisonment in the county jail for not more than one year, or in the penitentiary for not less than two years.

ARKANSAS.—“The willful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter.

“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall employ any instrument or other means, with intent thereby to destroy such child, and thereby shall cause its death, unless the same shall be necessary to preserve the life of the mother, or shall have been advised by a regular physician to be necessary for such purpose, shall be deemed guilty of manslaughter.”[179]

MINNESOTA.—“The willful killing of an unborn infant child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.

“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.”[180] Punishment for first degree, imprisonment in the territorial prison for not less than seven years; and for second degree, not more than seven years nor less than four.

OREGON.—“Any person who shall administer to any woman pregnant with a quick child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child, or of such mother, be thereby produced, be deemed guilty of manslaughter.”[181] Punishment, imprisonment in the penitentiary for not less than one or more than ten years, and by fine not exceeding five thousand dollars.

* * * * *

II. Those acknowledging the crime throughout pregnancy, but as of different degrees of guilt:—

MAINE.—“Whoever administers to any woman pregnant with child, whether such child is quick or not, any medicine, drug, or other substance, or uses any instrument or other means, unless the same were done as necessary for the preservation of the mother’s life, shall be punished, if done with intent to destroy such child, and thereby it was destroyed before birth, by imprisonment not more than five years, or by fine not exceeding one thousand dollars; if done with intent to procure the miscarriage of such woman, by imprisonment less (_sic_) than one year, and by fine not exceeding one thousand dollars.”[182]

NEW HAMPSHIRE.—“Every person who shall willfully administer to any pregnant woman, any medicine, drug, substance, or thing whatever, or shall use or employ any instrument or means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment, at the discretion of the court.

“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or means whatever, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for such purpose, shall, upon conviction, be punished by fine not exceeding one thousand dollars, and by confinement to hard labor not less than one year nor more than ten years.

“Any person who shall cause the death of any pregnant woman, in the perpetration or attempt to perpetrate either of the crimes mentioned in the two preceding sections, or in consequence of the perpetration or the attempt to perpetrate either of said crimes, shall be taken and deemed to be guilty of murder in the second degree, and be punished accordingly.

“Any woman who shall voluntarily submit to the violation of the provisions of this act (this and the three preceding sections[183]) upon herself, shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both said fine and imprisonment, at the discretion of the court.”[184]

NEW YORK.—“The willful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.

“Every person who shall administer to any woman pregnant with a quick child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child, or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.

“Every person who shall administer to any pregnant woman, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug, substance, or thing whatever, or shall use or employ any instrument, or other means whatever, with intent thereby to procure the miscarriage of any such woman, shall, upon conviction, be punished by imprisonment in a county jail not less than three months nor more than one year.