Part 9

“Every woman who shall solicit of any person any medicine, drug, or substance, or thing whatever, and shall take the same, or shall submit to any operation, or other means whatever, with intent thereby to procure a miscarriage, shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished by imprisonment in the county jail not less than three months nor more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.”[185]

OHIO.—“Any physician, or other person, who shall willfully administer to any pregnant woman, any medicine, drug, substance, or thing whatever, or shall use any instrument, or other 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 fine not exceeding five hundred dollars, or by both such fine and imprisonment.

“Any physician, or other 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 of the death of such child or mother, in consequence thereof, be deemed guilty of a high misdemeanor, and upon conviction thereof, shall be imprisoned in the penitentiary not more than seven years, nor less than one year.”[186]

MICHIGAN.—“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 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 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.

“Every person who shall willfully administer to any pregnant woman, any medicine, drug, substance, or thing whatever, or shall employ any instrument, or other 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 a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”[187]

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III. Those not allowing this mitigation, but still requiring proof of pregnancy:—

VERMONT.—“Whoever maliciously, or without lawful justification, with intent to cause and procure the miscarriage of a woman, then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, or noxious thing, or shall cause, or procure her, with like intent, to take or swallow any poison, drug, medicine, or noxious thing; and whoever maliciously and without lawful justification, shall use any instrument, or means whatever, with the like intent, and every person, with the like intent, knowingly aiding and assisting such offenders, shall be deemed guilty of felony, if the woman die in consequence thereof, and shall be imprisoned in the State prison not more than ten years, nor less than five years; and if the woman does not die in consequence thereof, such offenders shall be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the State prison not exceeding three years, nor less than one year, and pay a fine not exceeding two hundred dollars.”[188]

MASSACHUSETTS.—“Whoever maliciously or without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, or noxious thing, or shall cause or procure her, with like intent, to take or swallow any poison, drug, medicine, or noxious thing; and whoever maliciously and without lawful justification shall use any instrument, or means whatever, with the like intent, and every person with the like intent knowingly aiding and assisting such offender or offenders, shall be deemed guilty of felony, if the woman die in consequence thereof, and shall be imprisoned not more than twenty years, nor less than five years, in the State prison; and if the woman doth not die in consequence thereof, such offender shall be guilty of a misdemeanor, and shall be punished by imprisonment not exceeding seven years, nor less than one year, in the State prison, or house of correction, or common jail, and by fine not exceeding two thousand dollars.”[189]

ILLINOIS.—“Every person who shall administer, or cause to be administered or taken, any noxious or destructive poison, substance, or liquid, with the intention to procure the miscarriage of any woman then being with child, and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years in the penitentiary, and fined in a sum not exceeding one thousand dollars.”[190]

WISCONSIN.—“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, or substance, or thing whatever, or shall use or employ any instrument, or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman, shall, upon conviction, be punished by imprisonment in a county jail, not more than one year nor less than three months, or by fine not exceeding five hundred dollars, or by both fine and imprisonment, at the discretion of the court.

“Every woman who shall take any medicine, drug, substance, or thing whatever, or who shall use or employ any instrument, or shall submit to any operation, or other means whatever, with intent to procure a miscarriage, shall, upon conviction, be punished by imprisonment in a county jail not more than six months, nor less than one month, or by a fine not exceeding three hundred dollars, or by both fine and imprisonment, at the discretion of the court.”[191]

VIRGINIA.—“Any free person who shall administer to, or cause to be taken by a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be confined in the penitentiary not less than one, nor more than five years. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.”[192]

MISSOURI.—“Every physician, or other person, who shall willfully administer to any pregnant woman, any medicine, drug, or substance whatsoever, or shall use or employ any means whatsoever, with intent thereby to procure abortion, or 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 a physician to be necessary for that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.”[193]

ALABAMA.—“Any person who willfully administers to any pregnant woman, any drug or substance, or uses and employs any instrument or other means to procure her miscarriage, unless the same is necessary to preserve her life, and done for that purpose, must, on conviction, be fined not more than five hundred dollars, and imprisoned not less than three or more than twelve months.”[194]

LOUISIANA.—“Whoever shall feloniously administer, or cause to be administered, any drug, potion, or any other thing, to any woman, for the purpose of procuring a premature delivery, and whoever shall administer, or cause to be administered, to any woman pregnant with child, any drug, potion, or any other thing, for the purpose of procuring abortion, or a premature delivery, shall be imprisoned at hard labor for not less than one, nor more than ten years.”[195]

TEXAS.—“If any person shall designedly administer to a pregnant woman, with her consent, any drug or medicine, or shall use toward her any violence, or any means whatever, externally or internally applied, and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two, nor more than five years; if it be done without her consent the punishment shall be doubled.

“Any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice.

“If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to procure abortion, provided it be shown that such means were calculated to produce that result, and shall receive one half the punishment prescribed.

“If the death of the mother is occasioned by an abortion so produced, or by an attempt to effect the same, it is murder.

“If any person shall, during parturition of the mother, destroy the vitality or life in a child, which child would otherwise have been born alive, he shall be punished by confinement in the penitentiary for life, or any period not less than five years, at the discretion of the jury.[196]

“Nothing contained in this chapter shall be deemed to apply to the case of an abortion procured or attempted to be procured by medical advice for the purpose of saving the life of the mother.”[197]

CALIFORNIA.—“Every person who shall administer or cause to be administered or taken, any medicinal substance, or shall use, or cause to be used, any instrument whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the State prison for a term not less than two years, nor more than five years; provided, that no physician shall be affected by this section, who, in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.”[198]

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IV. The State, like England, where proof of pregnancy is not required:[199]

INDIANA.—“Every person who shall willfully administer to any pregnant woman, or to any woman whom he supposes to be pregnant, anything whatever, or shall employ any means with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall be punished by imprisonment in the county jail not exceeding twelve months, and be fined not exceeding five hundred dollars.”[200]

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The impossibility of proving the existence of pregnancy, in all cases of early occurring, and in many of advanced abortion, save by its result, is undeniable. Quickening, where abortion is criminal, is seldom previously ascertained by witnesses, at least from actual examination. If the mother is dead, her own testimony, not often willingly given, is lost, and the only reliable evidence that the usual period of quickening had been reached, is from the body of the fœtus, frequently concealed or destroyed. The law requires, in proof of the existence of quickening, that the woman should herself have felt the child move within her;[201] thus discarding[202] the distinction once very properly made by a learned judge, “Quick with child, is having conceived; with quick child, is where the child is quickened.”[203]

We have already sufficiently insisted on the error, injustice, and actual wrong to society, of making this absurd distinction between the fœtus of an early and a later age, and only refer to it at the present time as foremost among the existing obstacles to conviction.

In some of the States, the offence is considered a trifling one, except as affecting the person or life of the mother; this is the case in New Hampshire, Vermont, and Massachusetts. In Ohio, Michigan, Minnesota, Wisconsin, and Oregon, the proved death of either child or mother is required to make abortion a high misdemeanor, felony or manslaughter; while in Virginia and Arkansas it is necessary to constitute an indictable offence, in the one State that the death of the child should be proved, and in the other that this or its premature discharge has actually taken place. An attempt at the crime would here seem beyond indictment, unless fœtal life were destroyed; though if this could be proved, the attempt might perhaps be reached, even though the fœtus were retained in utero, and a true abortion, its discharge, had not taken place. In Maine, the fœtus must have died before birth; if, born living, it yet die in consequence of the abortion, the crime would seem not indictable, save at common law. In other States, allowing the fact of pregnancy to be proved, and in Indiana alone this is not necessary, attempts at abortion are as indictable as the act consummated, save in Texas, where the means used must be shown to be such as “were calculated to produce the result.”

In but few instances is the crime, intrinsically considered, accounted a heinous one, and recognized in its true character—an attempt to destroy the life of the child. In Texas, the consent of the mother half palliates the crime; while in very many codes abortion is omitted from the list of offences against the person, and accounted only a breach of public decency and morality.

In Ohio, as we have seen, it is called a high misdemeanor; in New York, Michigan, Oregon, Arkansas, and Mississippi, it is styled manslaughter in the first degree. The punishment inflicted by the latter of these States, however, is ridiculously trivial, and in all of them proof of quickening is required. In New York it has been determined that under an indictment for procuring the abortion of a quick child, which by the revised statutes is a felony, the prisoner may be convicted, though it turn out that the child was not quick, and the offence therefore a mere misdemeanor;[204] as in the remaining States it is indeed either in name or by penalty considered,—a simple, trivial, and venial offence.

But it must not be forgotten that the true nature of manslaughter consists in the absence of all malice or willful intent, expressed or implied, to do personal injury: out of tenderness to the frailty of human nature,[205] the law mercifully denying to such homicide, from unlawful accident or hasty passion, the same degree of guilt with the cool, deliberate act;[206] nor that misdemeanors are specifically confined to the following category: disturbances of the public peace, trivial personal injuries, public nuisances and scandals, lewdness, and incentives to special crimes.[207] It is evident that under neither of these heads can the crime of abortion be properly made to fall.

Difficulties of conviction, similar to those we have seen obtaining in England, and arising from requirement of proof that the means employed are unlawful, also present themselves in several of our States, though in most they have been wisely avoided. In Vermont and Massachusetts the agent administered, to be indictable, must have been a “poison, drug, medicine, or noxious thing;” in Illinois, a “poison, noxious, or destructive substance, or liquid;” in Texas, a “drug or medicine;” and in California, a “medicinal substance.” In Maine, New Hampshire, Connecticut, New York, Ohio, Michigan, Minnesota, Wisconsin, Oregon, Virginia, Missouri, Arkansas, Alabama, Mississippi, and Louisiana, the wording of the statute is sufficiently comprehensive; while in Indiana, there is used the curt but significant expression “anything whatever,” it not being necessary under this statute, in an indictment for administering medicine or any other substance, to procure abortion, for the agent to be described as noxious, or even its name to be stated.[208] The use of instrumental and other violence is generally well provided against.

The truth is, as has indeed been ruled, that it should not be necessary to show, in pleading or evidence, that the drug, etc. administered is noxious or the like, the intent to procure abortion being the gist of the attempt;[209] and if a person administer a bit of bread merely, with this intent, it is sufficient to constitute the offence.[210] On the other hand, it has been laid down, that if the thing administered could of itself by no possibility produce the abortion, and it were proved that this fact were known to the person administering, the crime would not have been committed; on the ground that he must be presumed to have acted without the malicious intent which the law requires.[211] Here, however, the frequent and important physiological effect through the imagination, in producing a definite result where such is supposed to be intended, has been entirely forgotten.

In several States, a seemingly unwise discrimination has been made by the law between the various methods employed. Thus in Michigan, Mississippi, Arkansas, and Minnesota, a special statute has been enacted for cases where the crime is effected “by any injury to the mother, which would be murder if it resulted in the death of such mother.” We have seen that the surest and most efficient means of producing abortion are those where no injury whatever is necessarily inflicted upon the mother. Such statutes as the above, therefore, actually tend to encourage the crime.

Another important obstacle to conviction is found in the latitude the statutes allow, generally by omission, to the plea of justification.

In Illinois and Louisiana no justification whatever is allowed by the law. In Connecticut the offence is penal where committed “willfully and maliciously;” in Vermont and Massachusetts to the latter of these expressions are added the words, “or without lawful justification:” but in each case, decision upon this point is left in great measure or wholly to the court. In Virginia, to be allowable, the abortion must have been necessary for the life of either the mother or child. In Maine, New Hampshire, Massachusetts,[212] New York, Ohio, Indiana, Michigan, Missouri, Alabama, Mississippi, Arkansas, Texas, Minnesota, California, Oregon, and the Territories of Kansas and Washington, it must have been performed for the sake of the mother’s life alone.

In none of these States is a standard of such justification established by the statute. In Maine, New York, Indiana, Alabama, Oregon, and the Territory of Washington, this is not even attempted. In Texas, the statute acknowledges “medical advice.” In Missouri, Mississippi, California, and the Territory of Kansas, the sanction of “a physician” is allowed as excuse; in Arkansas that of “a regular physician;” in New Hampshire, Ohio, Michigan, and Minnesota, “two physicians” may decide on its necessity; but in every one of these States, the word “or” stands engrossed upon the statute, and thereby the precaution is practically invalidated; which could not have been the case had the word “and” have been used instead.

The truth is, as we have seen, that when such latitude is allowed by the law, it is inevitably abused. Medical evidence, medical sanction, and medical performance are absolutely essential for excuse in every case; if the opinion of a single physician is allowed to be sufficient, an escape is afforded for all instances where this privilege has been dishonored; the word “regular” is much more liable to be misinterpreted than the word “competent;”[213] in every case before abortion can be justified, its necessity should previously have been decided and the possibility of crime thus prevented, by a consultation of at least two competent medical men.

We have pointed out many circumstances under which premature labor is demanded, by the rules of humanity and of medicine, for the sake of the mother’s life, and have seen that in several States it is for this cause allowed. But we have also shown that it is often equally necessitated for the sake of the child. In no State save Virginia is its justifiability for this purpose yet recognized by the statute law.

By the codes of most States, the mother is not punishable, however directly implicated in the crime. New Hampshire, New York, and Wisconsin, are apparently the only exceptions to this statement; the last two of them also not requiring proof of pregnancy for conviction, while by implication New Hampshire does.

By the statute of Indiana, all other women equally with the mother would seem released from prosecution, the word “he” being used of the persons indictable. The same oversight is noticed in the first section of the statute of Texas.

Objections were formerly made, especially in England, to the severity of the penalties then inflicted, (death in case of quickening, transportation or long imprisonment otherwise,) on the erroneous ground that this severity was wholly disproportionate to the guilt of the offence, and that, therefore, juries did not convict. The mistaken character of this supposition is shown by abundant proof in this country. In many States the penalties of the law are absurdly insignificant, tending, equally with the uncertainty of their infliction, to encourage the crime, and yet the same difficulties of conviction prevail. The true nature of these difficulties we have endeavored in great measure to explain, and we think it will have appeared that however numerous and serious they may be, they are yet not insuperable.

Before concluding this subject, it is proper that we examine more fully into the doctrine of the common law, to understand more precisely its meaning. In so doing, we shall quote freely from the leading authorities of the day, especially those of this country.

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The destruction of an unborn child is not at the present day murder at the common law, though such was formerly the case;[214] to constitute which crime, the person killed must at the time of death have been alive,[215] as we have shown the fœtus to be from the time of conception, and “a reasonable creature in being,”[216] a quality in this connection denied to the child by the law, though in all other relations it inconsistently allows and affirms it; as it does also, and always, from the moment of birth, even though the funis is undivided and the placenta still attached.[217]

To cause abortion after quickening, is not, as such, murder or manslaughter at common law, but a high misdemeanor.[218]

Whether to cause, or to attempt, abortion before quickening is a penal offence at common law, has been differently decided. In several of the States, as Maine, Massachusetts, and New Jersey, it has been ruled by the Supreme Court not to be indictable, even as an assault, if done with the consent of the woman; on the ground that only in case of high crimes is the person assaulted incapable of assenting.[219] The Pennsylvania court, however, has discarded this doctrine, and has decided that the moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated.[220]