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.
* * * * *