To this important question I do not hesitate to give an unqualified
answer in the affirmative. The fact that criminal abortion is not
controlled by law anywhere, cannot be entertained as a valid argument to
the contrary of this assertion; for it is equally the fact, as we have
seen, that laws against abortion do not as yet exist, which are in all
respects just, sufficient, and not to be evaded.
It is evident that in aiming to suppress this crime, the law should
provide not merely for its punishment, but indirectly as well as
directly, and so far as possible, for its prevention. The punishment of
a crime cannot be just, if the laws have not endeavored to prevent that
crime by the best means which times and circumstances would allow,[242]
and this is to be accomplished by a twofold process: by rendering on the
one hand its detection more probable, and on the other its punishment
more certain.
As indirect though important measures for the former of these ends,
we have already mentioned laws for registration,[243] and against
concealment of births and secret burials. As a single proof of their
possible influence in this respect, out of many that might be adduced, we
instance the fact that in Paris the number of premature fœtuses deposited
at the Morgue, during the nine years, from 1846 to 1854, inclusive,
was found to exceed by more than two-thirds that of the full decade
just preceding, from 1836 to 1845.[244] To render this difference more
apparent, we have compiled the following table:—
Age of fœtuses deposited. Ten years: Nine years:
1836-1845. 1846-1854.
From 2 to 3 months 21 58
” 3 to 4 ” 35 73
” 4 to 5 ” 56 102
” 5 to 6 ” 69 82
--- ---
Total 181 315
Part of this advance, it is true, is attributable to the increase in the
population of Paris, and in the prevalence of criminal abortion, but in
great measure it is clearly owing to the enforcement of a more rigid law
against secret burials. The above remarks are strikingly corroborated
by the fact that of trials for the crime, and we must not forget that
these bear but a small ratio to the whole number of cases preliminarily
investigated,[245] there were in France, during the latter of these
periods, fully four times the number occurring from 1836 to 1845.
The establishment of foundling hospitals, by the State governments,
has been urged as a preventive of the crime, and, on the other hand,
fears have been expressed lest the same means should increase it. For
ourselves, however, and from some experience in such cases, we believe
that these fears are groundless, and that with equal justice might they
be entertained of every large charity having for its end the improvement,
sanitary or otherwise, of the masses of society.
We have quoted a statute existing in Massachusetts, though practically
unenforced, against one great agent in the increase of abortion, an abuse
of its license by the public press. Were such laws to become general, and
to be faithfully executed, and were it also made penal to sell any drug,
popularly known as emmenagogue, except as advised by physicians, just
as the sale of direct poisons is, or should be, controlled by law, the
present system of openly advertising by abortionists would undoubtedly be
brought to a close.
In no matter is it of more importance than in cases of suspected criminal
abortion, that coroners should be intelligent and well educated medical
men; and we could wish that this point might have received especial
attention from Dr. Semmes, in his late admirable report to the American
Medical Association.[246] In the sudden excitement of an inquest, the
guilty are more likely than at a later period to be off their guard, and
evidence may often be elicited at this time, which, at the subsequent
trial, it would be impossible to obtain. There can be no question of
the importance of this point; the coroner should be skilled in all that
pertains to obstetric jurisprudence; and if similar knowledge were more
generally possessed by other officers of justice, attorney, juror, and
judge, a far greater number of convictions, under a proper law, would be
secured.
As regards the more direct statutes, we have already considered their
important points.
“In order to render laws effectually preventive,” has wisely been said,
“they should be consistently framed, and based on justice.”[247] In
accordance with this truly axiomatic doctrine, and with various rulings
of the courts, already quoted, no proof should be demanded which is not
necessitated by the actual character of the crime. We have seen that
neither in intent nor in fact is this an attempt against the person or
life of the mother. If she die in consequence, the offender is already
amenable for it as homicide; in the absence of any special statute, at
common law. The crime, both in intent and in fact, is against the life of
the child.
The attempt being proved, it is unnecessary that it should have
been consummated, not merely the completion of a crime bringing its
punishment, but also certain overt acts with intent to the perpetration;
nor is it requisite that any injury, specific or general, should have
been inflicted upon the person of the mother.
The offence being of equal guilt throughout pregnancy, proof of
quickening, the incident, not the inception of vitality,—indicating
neither the commencement of a new stage of existence, nor an advance
from one stage to another,—[248] and, therefore an element without the
slightest intrinsic value, should not be required.
The crime of abortion should be considered to include, as it does in the
absolute fact of moral guilt, all cases of attempted or intentionally
effected destruction and miscarriage of the product of impregnation;
and this, whether it be living or dead, normal or abnormal, which
last expression equally comprehends instances of moles, hydatids,
extra-uterine conception, acephalous, anencephalous, and other monsters.
Proof should not, as now, be required of intent to destroy the
child.[249] This should be considered shown by the intent to produce
miscarriage, in the absence of lawful justification therefor; the act in
all stages of pregnancy being attended with great danger to the child,
and, in much more than a moiety of the period, necessarily fatal to it.
The attempt being considered criminal, it follows that proof of pregnancy
is not necessary, and that conviction should be had though it were proved
that pregnancy did not exist,[250] even that the woman on whom the
abortion was attempted, however unlikely, was still a virgin.[251]
No discrimination should be made as to the means criminally employed, and
an escape thus afforded to the guilty; as we have seen still obtaining in
Great Britain and many of our own States.
The mother, almost always “an accessory before the fact,” or the
principal, should not, as now, be allowed almost perfect impunity. There
is no valid reason for such exemption, there is every reason against
it. The woman is covered by the laws of most continental nations of
Europe,—France, Austria, Germany, Bavaria, and Italy,—and by many of them
her punishment, if married, is greatly increased. Similar severity is
also exercised in these countries against the father of the fœtus, if he
too is implicated in the crime.
To allow that abortion is extenuated in the unmarried, it has been said,
will “to the moral and political philosopher appear to have exalted the
sense of shame into the principle of virtue, and to have mistaken the
great end of penal law, which is not vengeance, but the prevention of
crime. Law, which is the guardian and bulwark of the public weal, must
maintain a steady and even rigid watch over the general tendencies of
human actions.”[252] But, on the other hand, “the measure of punishment
should be proportionate, as nearly as possible, to the temptation to
offend, and to the kind and degree of evil produced by the offence.”[253]
We have seen the increase in moral guilt, and of opportunity for
commission and for escape, in the case of nurses, midwives, and other
classes of persons, who, from their profession, are brought more directly
into contact with pregnant women. By the penal code of Napoleon the
First, remarkable in so many respects for the wisdom of its provisions,
an increase of punishment was enacted for abortion criminally induced or
advised by physicians, surgeons, or other officers of health, including
midwives, or by druggists;[254] their guilt being enhanced by their
greater opportunities and knowledge.
Punishments for the crime of abortion should not, as is now generally
the case, be so framed as to render the statute, in fact, if not in
name, simply nugatory. Were the murder of adults to be made answerable
by merely a year or two in prison, far more convictions than at present
would undoubtedly be secured; but it is certain that the instances of the
crime would be fearfully increased. We have reason to believe that it is
precisely thus with the case in hand.
A standard of justification for the instances of necessary abortion
should be fixed by law. If perfection in this respect be impossible,
let the nearest approach be made to it that can. Since my remarks upon
the relative rights of the mother and fœtus to the chance of life in
doubtful cases were published in a former paper of the present series, I
have received from Dr. Rattenmann, late of Tübingen, an essay, written
by himself, in which this question is discussed at length, and the
repetition of abortion upon the same individual, in the early months
of pregnancy, is defended. I have carefully considered the several
arguments advanced by the gentleman, and am compelled to adhere to the
views I have already expressed.
* * * * *
In presenting a report upon the matter, in 1857, by direction of the
Suffolk District Medical Society of Massachusetts, the writer offered the
draft of a law, prepared after much thought and consultation with legal
as well as with medical men, and embodying the suggestions made above.
This was intended for the consideration of the Legislature of the State,
in the hope that it might be of aid toward a modification of the present
defective law.
Having seen no reason to change the opinions then avowed, but, on the
contrary, receiving constant confirmation of their truth, I now present
the essential portions of that draft, acknowledging most willingly that
its wording may, perhaps, with safety, be simplified and condensed; but
contending, in all sincerity and earnestness of purpose, that its general
tenor is what justice and humanity alike, and imperatively, demand at the
hands of society.
“Whoever, with intent to cause and procure the miscarriage of a woman,
shall sell, give, or administer to her, prescribe for her, or advise,
or direct, or cause, or procure her to take any medicine, or drug, or
substance whatever, or shall use, or employ, or advise any instrument,
or other means whatever, with the like intent, unless the same shall
have been necessary to preserve the life of such woman, or of her unborn
child, and shall have been so pronounced (in consultation) by two
competent physicians; and any person, with the like intent, knowingly
aiding and assisting such offender or offenders, shall be deemed guilty
of felony,” etc. etc.; “and if such offence shall have been committed by
a physician, or surgeon, or person claiming to be such, or by a midwife,
nurse, or druggist, such punishment may be increased at the discretion of
the court.”
“Every woman who shall solicit, purchase, or obtain of any person, or
in any other way procure, or receive, any medicine, drug, or substance
whatever, and shall take the same, or shall submit to any operation or
other means whatever, or shall commit any operation or violence upon
herself, with intent thereby to procure a miscarriage, unless the same
shall have been by two competent physicians (in consultation) pronounced
necessary to preserve her own life, or that of her unborn child, shall be
deemed guilty,” etc. etc.; “and if said offender be a married woman, the
punishment may be increased at the discretion of the court.”
It was also advised that the encouragement of criminal abortion, by
publication, lecture, or otherwise, or by the advertisement, sale or
circulation of such publication, should be made penal, and that the
present well worded statute against the personal advertisements of
abortionists, and their nostrums, should be rigorously enforced.
To the words now quoted were added, and they are still applicable, the
following:—
“We have aimed at a statute, which, while it better defined this
atrocious crime, and covered the usual grounds of escape from conviction,
established also the proper standard of competence in all medical
questions involving issues of life and death. We believe that it would
be the means of preventing much of the present awful waste of human
life. But enforce such a law, and the profession would never allow its
then high place in the community to be unworthily degraded; nor, as now,
would those be permitted, unchallenged, to remain in fellowship, who were
generally believed guilty, or suspected even of this crime.”[255]
In the same belief, strengthened by nearly three years careful
reflection, that criminal abortion can, to a great extent, be controlled
by law, if but the community so will, we proceed to the last division of
our subject, and discuss the duty of the medical profession toward the
ultimate suppression of the crime.