CONNECTICUT.—“Every person who shall willfully and maliciously administer
to, or cause to be administered to, or taken by, any woman then being
quick with child, any medicine, drug, noxious substance, or other
thing, with intent thereby to produce the miscarriage of such woman, or
to destroy the child of which she is pregnant, or shall willfully and
maliciously use and employ any instrument or other means to produce such
miscarriage, or to destroy such child, shall suffer imprisonment in the
Connecticut State prison for a term not less than seven, nor more than
ten years.”[177]
MISSISSIPPI.—“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 the 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 a physician to be necessary for
such purpose, shall be deemed guilty of manslaughter.”[178] Punishment,
by fine not less than one thousand dollars, or imprisonment in the county
jail for not more than one year, or in the penitentiary for not less than
two years.
ARKANSAS.—“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 adjudged manslaughter.
“Every person who shall administer to any woman pregnant with a quick
child, any medicine, drug, or substance whatever, or shall employ any
instrument or other means, with intent thereby to destroy such child,
and thereby shall cause its death, unless the same shall be necessary to
preserve the life of the mother, or shall have been advised by a regular
physician to be necessary for such purpose, shall be deemed guilty of
manslaughter.”[179]
MINNESOTA.—“The willful killing of an unborn infant 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 in the first degree.
“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 in the
second degree.”[180] Punishment for first degree, imprisonment in the
territorial prison for not less than seven years; and for second degree,
not more than seven years nor less than four.
OREGON.—“Any person who shall administer to any woman pregnant with a
quick child, or prescribe for any such woman, or advise or procure any
such woman to take 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, shall, in case the death of such child, or of
such mother, be thereby produced, be deemed guilty of manslaughter.”[181]
Punishment, imprisonment in the penitentiary for not less than one or
more than ten years, and by fine not exceeding five thousand dollars.
* * * * *
II. Those acknowledging the crime throughout pregnancy, but as of
different degrees of guilt:—
MAINE.—“Whoever administers to any woman pregnant with child, whether
such child is quick or not, any medicine, drug, or other substance,
or uses any instrument or other means, unless the same were done as
necessary for the preservation of the mother’s life, shall be punished,
if done with intent to destroy such child, and thereby it was destroyed
before birth, by imprisonment not more than five years, or by fine not
exceeding one thousand dollars; if done with intent to procure the
miscarriage of such woman, by imprisonment less (_sic_) than one year,
and by fine not exceeding one thousand dollars.”[182]
NEW HAMPSHIRE.—“Every person who shall willfully administer to any
pregnant woman, any medicine, drug, substance, or thing whatever, or
shall use or employ any instrument or 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 a fine not exceeding one thousand dollars, or by both
such fine and imprisonment, at the discretion of the court.
“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 means whatever, with intent thereby to destroy such
child, 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 such purpose, shall, upon conviction, be punished by fine not
exceeding one thousand dollars, and by confinement to hard labor not less
than one year nor more than ten years.
“Any person who shall cause the death of any pregnant woman, in the
perpetration or attempt to perpetrate either of the crimes mentioned in
the two preceding sections, or in consequence of the perpetration or the
attempt to perpetrate either of said crimes, shall be taken and deemed to
be guilty of murder in the second degree, and be punished accordingly.
“Any woman who shall voluntarily submit to the violation of the
provisions of this act (this and the three preceding sections[183])
upon herself, shall be punished by imprisonment in the county jail not
exceeding one year, or by fine not exceeding one thousand dollars, or by
both said fine and imprisonment, at the discretion of the court.”[184]
NEW YORK.—“The willful killing of an unborn quick child, by an injury to
the mother of such child, which would be murder if it resulted in the
death of such mother, shall be deemed manslaughter in the first degree.
“Every person who shall administer to any woman pregnant with a quick
child, or prescribe for any such woman, or advise or procure any such
woman to take 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, shall, in case the death of such child, or of such mother be
thereby produced, be deemed guilty of manslaughter in the second degree.
“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, substance, or thing whatever, or shall use or employ any
instrument, or other means whatever, with intent thereby to procure the
miscarriage of any such woman, shall, upon conviction, be punished by
imprisonment in a county jail not less than three months nor more than
one year.
“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]
* * * * *
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]
* * * * *
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]
* * * * *
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.
* * * * *
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]
The distinction alluded to with regard to quickening, is allowed by an
acknowledged legal authority[221] to be at open variance not only with
medical experience, but with all other principles of the common law.[222]
The civil rights of an infant in utero are respected equally throughout
gestation; at every stage of which process, no matter how early, it may
be appointed executor,[223] is capable of taking as legatee[224] or under
a marriage settlement,[225] may take specifically as “a child” under a
general devise,[226] and may obtain an injunction to stay waste.[227]
When, in an attempt to procure an abortion, there is an evident intent
to produce the death of the mother, and her death does actually occur,
such attempt becomes murder at common law;[228] but when nothing more is
intended than to commit the misdemeanor, it is only manslaughter,[229]
being an instance of homicide from individual malice toward a third
party, when the fatal blow falls on the deceased by mistake. It has
been said, however, that this last is not the true doctrine, the
destruction of an infant in utero being, even at common law, in some
respects felonious, and the act in its nature malicious and deliberate,
and necessarily attended with danger to the person on whom it is
performed.[230]
The use of violence upon a woman, with an attempt to produce her
miscarriage without her consent, rules Chief Justice Shaw, of
Massachusetts, is an assault highly aggravated by such wicked purpose,
and would be indictable at common law. So where, upon a similar attempt,
the death of the mother ensues, the party making such an attempt, with
or without her consent, is guilty of murder, on the ground that it is an
act done without lawful purpose, dangerous to life, and that the consent
of the woman cannot take away the imputation of malice, any more than
in case of a duel, where in like manner there is the consent of the
parties.[231]
Though to kill the fœtus in utero is as such, by the common law, no
murder, yet if it be born alive, and die subsequently to birth from the
wounds it received in the womb, or from the means used to expel it, the
offence becomes murder in those who cause or employ them.[232] If a
person, intending to procure abortion, does an act which causes the child
to be born earlier than its natural time, and therefore in a state much
less capable of living, and it afterwards die in consequence of such
premature exposure, the person who by this misconduct brings the child
into the world, and puts it into a situation in which it cannot live, is
guilty of murder, though no direct injury to the child be proved; and the
mere existence of a possibility that something might have been done to
prevent the death, does not lessen the crime.[233]
The earlier English statutes, from their peculiar phraseology, held
pregnancy essential for the commission of the crime,[234] yet an attempt
to produce abortion is now indictable at common law,[235] though it fail
by reason of the woman being, in fact and contrary to the belief of the
party, not pregnant.[236] For though as no man would attempt what he
absolutely knew he could not in fact perform, nor would be deemed in law
to have so attempted, and as every one being conclusively presumed to
understand the law, no man can legally intend what is legally impossible,
the rule as to facts is different; for men are not conclusively held
by the law to know facts. And if a man fails in what he undertakes,
because of an impossibility in fact, which he did not know, he is just as
answerable as if the failure were from any other cause.[237]
We have seen the mistaken basis, as regards the criminality of abortion,
on which the common law is founded, and that while it recognizes the
distinct existence of the fœtus for civil purposes, it here considers its
being as totally engrossed in that of the mother.
A recent authority thus accounts for and defends the mistake. The
wealth and prosperity of the country, it is assumed, and the growth and
efficiency of its population, are alike matters of general concern, and
therefore the law takes them under its care. As to population, there
are in civil jurisprudence such rules, as that the husband may hold the
lands of his deceased wife during his life, if before her death a living
child was born, but not otherwise; the law thus offering, in effect, a
reward for issue. It does not compel matrimony, because that would be
an infringement of private rights; but for the same end, it does punish
abortions.[238]
Another writer has also implied that the common law, in making fœticide
penal, had in view the great mischiefs which would result from even its
qualified toleration: namely, the removal of the chief restraint upon
illicit intercourse, and the shocks which would be sustained thereby by
the institution of marriage and its incidents; among which the delicacy
of women.[239]
In unison with these opinions, Judge Coulter, of Pennsylvania, has ruled,
that “it is not the murder of a living child which constitutes the
offence, but the destruction of gestation.”[240]
* * * * *
If our previous assumptions of the actual character of criminal abortion
be granted, and we believe that they have been proved to a demonstration,
it must follow from the subsequent remarks that the common law, both
in theory and in practice, is insufficient to control the crime; that
in many States of this Union, the statutory laws do not recognize
its true nature; that they draw unwarrantable distinctions of guilt;
that they are not sufficiently comprehensive, directly allowing many
criminals to escape, permitting unconsummated attempts, and improperly
discriminating between the measures employed; that they require proofs
often unnecessary or impossible to afford; that they neglect to establish
a standard of justification, and thereby sanction many clear instances
of the crime; that by a system of punishments wholly incommensurate with
those inflicted for all other offences whatsoever, they thus encourage
instead of preventing its increase; and that in many respects they are
at variance, not merely with equity and abstract justice, but with the
fundamental principles of law itself.
“It is to be hoped,” has forcibly been written, “that the period is not
far remote, when laws so cruel in their effects, so inconsistent with the
progress of knowledge and civilization, and so revolting to the feelings
and claims of humanity, will be swept from our statutes.”[241]
In a similar trust, it now behooves us to consider whether, and in what
manner, the difficulties in the way of generally suppressing the crime of
abortion can be overcome.