It is by no means an easy thing in all cases to obtain evidence that
an abortion has occurred; still more difficult, that it has been
intentionally induced. As most laws read, it is necessary at the outset
to prove the existence of pregnancy; as many still stand, it must be
shown that the woman has quickened. These requisitions are unwise and
unjust, and under them, if insisted on by adroit counsel, it is almost
useless to pursue prosecution. In the earlier months, before quickening
has occurred or the fœtal pulsations have become evident to the ear, it
is impossible, as I have elsewhere insisted,[110] ever to be sure of the
existence of pregnancy, and yet attempts at its termination are then in
no degree less criminal. The only infallible sign of pregnancy is the
sound of the fœtal heart, not always to be detected, even by the double
stethoscope.
Putting aside, therefore, the question of the existence of pregnancy
and of fœtal life, as taken for granted on the one hand by the attempt
at their termination, and as proved on the other by this result, it is
found that the evidence of abortion classifies itself into proofs of
its occurrence, of its commission, of the criminal intent, and of the
identity of the party accused.