We shall hereafter discuss the perpetrators of the crime, and the
emergencies which can alone justify the induction of premature labor
or obstetric abortion. We shall see that by none save medical men can
such necessity ever be known; it is, therefore, apparent that the intent
may frequently be judged from the relation of the parties implicated,
and the excuses offered by them. It will also often appear from the
other circumstances of the case. That the child was likely to be born a
bastard, and to be chargeable to the reputed father, would be evidence to
that effect; and proof of the clandestine manner in which the drugs were
procured or administered would tend the same way.[119]
On the part of the mother, bastardy also, the having denied the existence
of pregnancy, concealed its expelled product, expressed an intention
or desire to abort, made a known application for this purpose, visited
a notorious abortionist, taken alleged specifics, or given similar
advice to a friend, are all presumptive evidence; as are also the having
neglected to send for aid when needed, or refused to take precautions or
remedies when prescribed. In like manner, evidence of criminal intent
would seem apparent, if drugs generally supposed abortive had been
advised or given to a pregnant woman, or violence of any kind usually
productive of the effect in question, even to tooth-drawing, had been
hastily or unnecessarily used.
Here, as in many other cases where no malice is expressed or openly
indicated, the law will imply it; if, for instance, a man wilfully
poisons another, in such a deliberate act the law presumes malice, though
no particular enmity can be proved.[120] Malice is not confined in its
legal definition to ill-will toward one or more individual persons,
but is intended to denote an action flowing from any wicked or corrupt
motive, a thing done _malo animo_, where the fact has been attended with
such circumstances as carry in them the plain indications of a heart
regardless of social duty and fatally bent on mischief; and, therefore,
it is implied from any deliberate or cruel act against another.[121] The
rule is, that the implication of malice arises in every such case, and
all the circumstances of accident, necessity, or infirmity are to be
satisfactorily established by the party charged, unless they arise out
of the evidence and attending circumstances; if they do not, there is
nothing to rebut the natural presumption of malice. This rule is founded
on the plain and obvious principle that a person must be presumed to
intend to do that which he voluntarily and wilfully does in fact do, and
that he must intend all the natural, probable, and usual consequences of
his own act.[122]
The standing in society of the accused, unless notoriously bad, should
of course be allowed to weigh but little; the less the likelihood of the
crime, the greater, from example and previous education, its guilt.
If violent purging or vomiting have been resorted to without any apparent
reason, or to a greater extent than ordinarily prescribed or required; or
if leeches have been applied to the thighs, to the number of an hundred
or more, as instanced by Tardieu, or the like, there is certainly ground
for strong suspicion. And here it is that the criminal liability of
careless or ignorant physicians becomes evident. In cases such as we
have referred to, it would be very difficult for a successful defence
to be offered, providing the pregnancy had been suspected by those not
implicated, were the statutes on abortion properly drawn and enforced.
It has been ruled, and very justly, that attempts at the crime,
though unsuccessful; or effective, yet the ovum retained as mole,
hydatids, skeleton, mummy, or putrilage; and whether the woman be
pregnant or not, and if pregnant, whether the child be alive, dead, or,
abnormally developed or degenerated, should be amenable as though fully
consummated.[123] We have seen the frequent difficulty in proving fœtal
life; the attempt at its destruction shows the belief in its existence,
and the intent. The proofs will here of course be of a different nature.
The signs of delivery will be absent, and all evidence from the product
of conception, unless the mother’s death ensue; in which event, as in
the other fatal cases we have considered, and on the principle just
laid down, procedure might be had on the charge either of abortion or
homicide; but it must not be forgotten, as we early pointed out, that
immediate death from the shock may occur, and no lesion of any kind be
found. The patient or parties interested are proved by the attempt to
have supposed pregnancy existing, and to have behaved as though this were
the fact.
The age of the patient is not of consequence; nor is that of the fœtus,
save as corresponding with the alleged period of pregnancy, in case any
doubt exist as to its own identity or that of the mother, and as bearing
on the statement we have already attempted to prove, that criminal
abortion is comparatively rare after the period of quickening, and,
therefore, on the probability of intent. The number of the pregnancy
is also wholly immaterial, different as are the causes alleged for its
criminal induction, and equally liable in youth and age, as women seem
to be, to accident or placental disease. Whitehead and West are of
opinion that abortion naturally resulting is most common after the sixth
pregnancy,[124] but the point needs further investigation.
Among the proofs of intent must be included, as we have seen, the excuses
offered by the accused or suspected party, and the means resorted to for
consummation. These we now proceed to examine.
It will be evident that the plea of necessity can be made by none but a
medical man. We shall show that the cases where abortion is legitimated
by the rules of science are extremely few, and that for safety’s sake
their applicability should in no instance be allowed to rest upon a
single opinion.[125] For all others beside the physician there can be
no allowable excuse except, in the mother’s case, insanity; which,
however common in the true puerperal state, and often no doubt then
showing itself by infanticide, has in early pregnancy, and to any extent,
still to be observed. Other pleas as offered by the mother, ignorance
of pregnancy or of fœtal life, duress, personal health or that of her
family, accident, carelessness, fear of child-bed, malpractice on part
of the attendant, we have already considered at sufficient length. It is
sometimes effected in hatred of the husband or in jealousy, sometimes
for concealment of shame; excuses of little more value than those of
extravagance or fashion. Constitutional predisposition can hardly be
asserted, unless the miscarriage have been preceded by others; very
many ineffectual attempts are on record, although the existence of such
predisposition was evident. It will often be alleged that the measures
instituted were to prevent instead of to effect the miscarriage, and that
this has resulted in consequence merely of an excess of good-will; the
sophistry is generally apparent.
The means resorted to are for two purposes: on the one hand, to prepare
the patient for the abortion and preliminarily to lessen her danger,
or to conceal the character of those, on the other hand, which really
occasion it, and for this end used prior or subsequently to them. We may
yet take occasion to consider these several agents in some detail; it
remains only to remark that their use in any given case must be compared
with what was then actually needed, or would have been required had the
abortion been justifiable and necessary.
Certain drugs, ergot and savin for instance, the class of so-called
abortives, popularly considered specific, are always suggestive of
evil intent. They would not be used, were abortion necessary, by a
well-informed practitioner, caring for the life of the parent or fœtus.
The same is true, though of course to a more limited extent, of all
over-drugging, over-manipulation, or over-exertion by a pregnant woman,
by whomsoever advised or performed. In every instance it is necessary to
compare the cause alleged with the effects observed, and to judge of it
from these. Where direct operative manœuvres are suspected or charged,
the processes or instruments, the results, immediate and consecutive as
well as remote, the period elapsing before their occurrence, must all be
taken into careful consideration.
But, on the other hand, it is immaterial what was the agent, and whether
or not it would produce abortion, if it was believed capable of this
effect, and employed or administered with that intent. If the person
charged knew that the woman was with child, and the probable effect of
the agent administered, this is good presumptive evidence that the intent
was to produce the miscarriage, and where the effect of abortion is
actually thus produced, it will materially aid the presumption of such
intent.[126]
It was stated early in this inquiry that a difference existed between
the methods of investigation, as regards the examination of the fœtus,
proper in abortion and infanticide. The reason of this has been pointed
out by Tardieu.[127] In the latter case, the whole matter turning upon
the questions whether the child was born living or dead, and in which
of these states it was injured, it becomes necessary to prove one or
the other of the alternatives, but in abortion they are intrinsically
of no importance whatever. The only points then to be decided are, was
the birth premature, and if so, was it intentional, and if so, was it
absolutely essential and to save either maternal or fœtal life. Except as
bearing on these questions, therefore, it is of no consequence whether
wounds were inflicted, whether the lungs had been inflated, whether the
fœtus was viable, or even whether it was ever discovered.
In their place, however, these points are each important, but only as
bearing on the main facts to be determined. In a case, for instance, as
that related by Ollivier d’Angers, where the fœtus, though very immature,
lives several hours after its expulsion, this fact alone will preclude
the idea of a slow and progressively acting cause like most forms of
abortive disease, and will point to some direct interference, by means
suddenly terminating the pregnancy without injuring the fœtus.
And so in other cases, especially of sudden maternal death, it is of
importance to ascertain as nearly as possible the period at which death
of the fœtus took place. If the two were coincident, the deduction
might be other than if the latter were proved to have preceded the
former by several days. The differences observed between putrefaction
and decomposition _in utero_ and in the open air must not be lost sight
of. In the one case, according to Orfila, Devergie and Martin, Moreau,
P. Dubois, Danyau, Cazeaux, Tardieu, and my own experience, a uniform
and characteristic reddish-brown hue obtains in proportion to the time
of retention after death, varied perhaps by the action of the amniotic
fluid;[128] the fœtus wrinkles, dries, and becomes mummified, unless in
earliest pregnancy, when it generally resolves itself into a gelatinous
mass.
If the cervix, the portion of the uterus most frequently wounded, is
found punctured or lacerated, while the ovum is still retained, there is
reason for suspicion; if the membranes are torn and extensively detached,
while the cervix is but little dilated, such is increased; and it is made
almost a certainty, if with the latter condition, nothing remain of the
ovum in the uterine cavity but lacerated fragments. Here the abortion
would probably not merely have been intentionally induced, but by the
direct introduction and agency of instruments.
Wounds of the fœtus are much rarer than those of the mother, and
are usually simple pricks of the skin marked by blackish coagula or
extravasations; which, if upon the skull and unless care be used,
are liable to be simulated by clots casually adhering to the hair or
scalp. If the wound be deeper, its course may be traced by dissection.
Its situation varies; Devergie thinking it always on the back and
buttocks, while Tardieu, with some warmth, would restrict its location
to the top of the cranium. This difference is easily explained by
variations in the time of pregnancy, and in consequence partly, as may
also depend on its life or death, in the presentation of the child.
The rarity of their occurrence, though denied by Taylor[129] and other
medical jurists, might, however, be expected, and is readily accounted
for; the instruments used by ignorant persons seldom entering the os,
however severely wounding the cervix, and where they do enter, usually
only piercing the membranes; against which, except toward the end of
pregnancy, in a deficiency of liquor amnii, or in labor, the fœtus can
hardly be said to forcibly press.