That this could have been doubted, least of all by mothers, however
ignorant or degraded, would at first sight appear improbable. The sense
of the public, however, its practice, its laws, being each proved to
the contrary by the stubborn evidence of facts, the necessity of our
preliminary inquiry will be made manifest.
To postpone, for the present, all other considerations, we will regard
abortion in the abstract. It may be defined, best perhaps, as the violent
and premature expulsion of the product of conception, independently of
its age, viability, and normal formation. These characteristics are
eliminated as having judicially and actually nothing to do with the
essential nature of abortion, whereas in infanticide they are each
elements of great importance; a difference that will hereafter be seen.
We further, in the present investigation, set aside all cases where
abortion is the result of accident, or from natural causes, or justified
by the rules of medicine, whether to save the mother or her child. We
shall have occasion, in the subsequent course of our inquiries, to
discuss this latter question somewhat fully, and to set forth unpleasant
truths. We now confine ourselves exclusively to those instances where
the attempt at premature expulsion of the product of conception is
artificially induced and intentional, and where, so far as can be judged,
it is not necessitated and would not otherwise have occurred.
In the first place, the laws do not recognize that unnecessary abortion,
_per se_, is a crime.
This act, when unnecessarily done, must be for one of two reasons:
either to prevent the product of conception from receiving life, which
subsequent evidence will show cannot be the case, or, if living, to
destroy it.
We have said that the Common Law and many of our American statutes lose
sight of this fundamental idea. Though based upon the first of the
above alternatives,—the erroneous one, as regards the fact of their
existence,—they are so worded as almost wholly to ignore fœtal life, to
refuse it protection, to insure their own evasion, and by their inherent
contradictions to extend the very crime they were framed to prevent.
They recognize, for the most part, no offence against the fœtus; we have
just shown that such, and such alone, is always intended. They punish
an attempt, which does not exist, upon the well-being or life of the
mother; the intent being seldom or never to destroy the mother. She
is herself, in almost every case, a party to the action performed; an
accessory or the principal. To constitute a crime, a malicious or wicked
intent is supposed to exist; we have thrown aside, as does the law, every
case occurring from accident or from justifiable cause. The intent, if
existing, as of course must be always the case, is against, and only
against, the product of conception.
Again, the punishment meted by the law proves the truth of these
propositions. Unless the woman die in consequence of the offence, it
is declared, in every stage of pregnancy, a mere misdemeanor, as in
Massachusetts; or else, while called such, or by omission justified
or openly allowed in the early months when the fœtus is without other
safeguard, the law pronounces abortion a felony and increases its
penalties in more advanced pregnancy, after quickening has rendered it
infinitely more certain that the fœtus will remain undisturbed, and has
thus in the great majority of cases prevented the crime.
On the other hand, granting for the moment that the erroneous assumptions
of the law were correct, and that the attempt were upon the life of the
mother, how inconsistent to punish murder, attempted or committed, if by
injury to the throat or heart, capitally, and if by injury to the womb,
by temporary imprisonment; especially where this latter case always
necessitates the slaughter of a second human victim.
Or, granting that the attempt were only upon the mother’s health or
temporary welfare, how absurd to punish the offence in early pregnancy,
where her risks are greatest, by a trifling penalty or not at all, and
in more advanced pregnancy, where these risks are daily lessened, with
increased severity.
And, finally, if the fœtus were, as has been sometimes supposed, merely
_pars viscerum matris_, its removal would be like that of a limb, or of
any other portion of the body, whose loss is not absolutely attended with
that of life; if made with the mother’s consent, it would be unpunishable
by law; if against her will, it would be already amenable, like other
maim or mutilation, to existing statutes. In the one case, laws against
abortion were needless; in the other, unjustifiable.
In a word, then, in the sight of the common law, and, in most cases of
the statutory law, also, the crime of abortion, properly considered,
does not exist; the law discussing and punishing a wholly supposititious
offence, which not only does not exist, but the very idea of whose
existence is simply absurd.
We turn now to public opinion. It, too, both in theory and in practice,
fails to recognize the crime. Its practical denial of the true character
of the offence will be shown in the course of our remarks on its
frequency. Its theoretical denial we here consider, as proved in three
ways—by implication, by collateral testimony, and by direct.
First, the maxims of the law are based on past or present public opinion.
If merely on past, and this has totally changed, the law in matters of
such importance is compelled to change also. The fact that the laws on
this subject remain unaltered, if it be granted, as will be proved, that
they are erroneous, furnishes us at the outset, and so far, with evidence
that public opinion was formerly wrong, and that it so continues.
The frequency of the offence, and the character and standing of the
mothers upon whose persons it is practised, accessories as we have seen,
or principals, to it, furnish similar and more cogent testimony regarding
the theory upon which it is founded. We shall soon perceive how extensive
and high reaching is the frequency; we must therefore conclude that the
public do not know, or knowing deny, the criminal character of the action
performed.
Again, the direct testimony of the parties themselves is often available.
It is undoubtedly a common experience, as has certainly been that of the
writer, for a physician to be assured by his patients, often no doubt
falsely, but frequently with sincerity, that their abortions have been
induced in utter ignorance of the commission of wrong; in belief that
the contents of the womb, so long as manifesting no perceptible sign of
life, were but lifeless and inert matter; in other words, that being,
previously to quickening, a mere ovarian excretion, they might be thrown
off and expelled from the system as coolly and as guiltlessly as those
from the bladder and rectum.
It having now been shown, directly and by temporary assumption, that the
law and public sentiment, both by its theory and its practice, alike deny
to unjustifiable abortion the imputation of crime, it remains for us to
discuss this question abstractly, and to prove not merely that they are
wrong, but that the offence is one of the deepest guilt, a crime SECOND
TO NONE.
Ignorance of the law is held no excuse. The plea of ignorance of guilt
could hardly better avail where its existence is implied by common sense,
by analogy, and by all natural instinct, binding even on brutes. Were
this guilt, however, clearly shown, and its knowledge, supposed wanting,
to be spread broadcast by the press, the all-powerful arbiter of public
opinion, the last and strongest prop of the crime were gone.
It has been shown, by setting aside all accidental cases, those naturally
occurring and those necessarily, and in the absence of reasonable
evidence to the contrary, that all other abortions must be intentional,
that they must be occasioned by the “malice aforethought” of the law. It
has also been shown that in these cases, except it exist as an additional
element, the malicious intention is not against the life or person of the
mother, but that in every instance it is against the product of her womb.
Hence, the whole question of the criminality of the offence turns on
this one fact, the real nature of the fœtus in utero. If the fœtus be a
lifeless excretion, however soon it might have received life, the offence
is comparatively as _nothing_; if the fœtus be already, and from the very
outset, a human being, alive, however early its stage of development, and
existing independently of its mother, though drawing its sustenance from
her, the offence becomes, in every stage of pregnancy, MURDER.
“Every act of procuring abortion,” rules Judge King, of Philadelphia,[2]
contrary to the usual interpretation of the law, “is murder, whether
the person perpetrating such act intended to kill the woman, or merely
feloniously to destroy the fruit of her womb.”
Common sense, we have said, would lead us to the conclusion that the
fœtus is from the very outset a living and distinct being. It is alike
absurd to suppose identity of bodies and independence of life, or
independence of bodies and identity of life; the mother and the child
within her, in abstract existence, must be entirely identical from
conception to birth, or entirely distinct. Allowing, then, as must be
done, that the ovum does not originate in the uterus; that for a time,
however slight, during its passage through the Fallopian tube, its
connection with the mother is wholly broken; that its subsequent history
is one merely of development, its attachment merely for nutrition and
shelter, it is not rational to suppose that its total independence, thus
once established, becomes again merged into total identity, however
temporary; or that life, depending not on nine months’ growth, nor on
birth, because confessedly existing long before the latter period,—since
quickening at least, a time varying within wide limits,—dates from any
other epoch than conception; while it is as irrational to think that the
influence of the father, mental and moral as well as physical, so often
and so plainly manifested, can be exercised by any possibility upon the
child at any other moment than that original and only one of impregnation
itself.
Another argument is furnished us, similar, but differing. The fœtus,
previous to quickening, as after it, must exist in one of two states,
either death or life. The former cannot take place, nor can it ever
exist, except as a finality. If its signs do not at once manifest
themselves, as is generally the case, and the fœtus be retained in utero,
it must either become mummified or disintegrated; it can never again
become vivified. If, therefore, death has not taken place, and we can
conceive no other state of the fœtus save one, that, namely life, must
exist from the beginning.
These reasonings are strengthened by the evidence of analogy. The
utter loss of direct influence by the female bird upon its offspring
from the time the egg has left her, and the marked effect, originally,
of the male; the independence in body, in movement, and in life,
of young marsupial mammals, almost from the very moment of their
conception, identical analogically with the intra-uterine state of
other embryos,—nourishment by teat merely replacing that by placenta at
an earlier period; the same in birds, shown by movements in their egg
on cold immersion before the end of incubation; the permanence of low
vitality, or of impaired or distorted nervous force, arising from early
arrest or error of development, and necessarily contemporaneous with it,
are all instances in point.
Brute instincts are often thought wholly supplanted by human reason.
That this is not so is proved by what obtains in the absence of reason,
whether from the outset or subsequently occurring. Idiots and lunatics
alike show the actual identity in this respect of man and the brute,
however instinct, in the former, may normally be tempered by conscience
and reason. Whatever ideas on the subject of abortion the human mind may
have forced itself to entertain, let the slightest proof concerning the
existence of fœtal life be alleged, and maternal instinct at once makes
itself known: the parent, as after its birth, would often even perish to
preserve her child. This is not conscience, which is stirred only by an
afterthought, but instinct.
Thus far, incidental proof concerning the commencement of fœtal life, and
so the guilt of unjustifiable abortion. More decisive evidence is at hand.
That the movements of the fœtus, subsequent to quickening, whatever the
actual nature of that first sensation may be, declare the existence of
intra-uterine life, is allowed by the world; by none more than by mothers
themselves, whose statistics prove that after the perception of these
movements criminal abortions are comparatively rare.
But quickening,—a period usually occurring from the one hundred and
fifteenth to the one hundred and thirtieth day after conception, but
varying within still more appreciable limits in different women, and in
the same women in different pregnancies, from variations in the amount
of liquor amnii, the early strength of the fœtus, and other causes, and
also, if at all, owing in its first sensation to rising of the womb from
the pelvis, probably occurring a little earlier with boys than with
girls, from their relative difference in size,[3]—is often absent, even
throughout pregnancy; and fœtal movements are sometimes appreciable to
the attendant when not to the mother, or indeed to the mother alone.
Further, in premature births, where quickening has not occurred, or
before its usual period, by the movements of the fœtus, its earlier
independent and vital existence is sometimes reduced to a matter of
ocular demonstration; while to the ear, in very many instances, as early
and as conclusive evidence is afforded by the sounds these movements give
rise to.[4]
Quickening is therefore as unlikely a period for the commencement of
fœtal life as those others set by Hippocrates and his successors, varying
from the third day after conception, to that of the Stoics, namely birth,
and as false as them all.
We need not, with Dubois[5] and some earlier writers,[6] from the
manifest relation of means to the end, consider that the movements
of the fœtus in utero, and its consequent attitude and position, are
signs of an already developed and decided sentience and will, nor is it
requisite to suppose them the effect of an almost rational instinct. But
that they are wholly independent of the will and the consciousness of
the mother, and yet by no means characteristic of organic life, whether
hers or its own,—which latter is also by abundant evidence proved
independently to exist,—but decidedly animal in their character; that
they are not explainable by gravity, despite all the arguments alleged,
latest by Matthews Duncan,[7] nor on any other supposition save that of a
special and independent excito-motory system, distinct from that of the
mother,[8] brings us directly down to this—the existence of as distinct
and independent a nervous centre, self-existing, self-acting, living.
We set aside all the speculations of metaphysicians regarding moral
accountability of the fœtus, the “potential man,” and its “inanimate
vitalities,” as useless as they are bewildering. If there be life, then
also the existence, however undeveloped, of an intellectual, moral, and
spiritual nature, the inalienable attribute of humanity, is implied.
If we have proved the existence of fœtal life before quickening has
taken place or can take place, and by all analogy and a close and
conclusive process of induction, its commencement at the very beginning,
at conception itself, we are compelled to believe unjustifiable abortion
always a crime.
And now words fail. Of the mother, by consent or by her own hand, imbrued
with her infant’s blood; of the equally guilty father, who counsels
or allows the crime; of the wretches who by their wholesale murders
far out-Herod Burke and Hare; of the public sentiment which palliates,
pardons, and would even praise this so common violation of all law, human
and divine, of all instinct, of all reason, all pity, all mercy, all
love, we leave those to speak who can.