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Title: On criminal abortion in America
Author: Storer, Horatio R.
Language: English
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AMERICA ***
ON
CRIMINAL ABORTION
IN AMERICA.
BY
HORATIO R. STORER, M.D.,
OF BOSTON.
MEMBER OF THE AMERICAN MEDICAL ASSOCIATION.
“And let the legislator and moralist look to it; for as sure
as there is in any nation a hidden tampering with infant life,
whether frequent or occasional, systematic or accidental, so
sure will the chastisement of the Almighty fall on such a
nation.”—GRANVILLE, _on Sudden Death_.
[From the North American Medico-Chirurgical Review, January to
November, 1859.]
PHILADELPHIA:
J. B. LIPPINCOTT & CO.
1860.
TO
THOSE WHOM IT MAY CONCERN,
PHYSICIAN, ATTORNEY, JUROR, JUDGE,—AND PARENT,—
These Pages
ARE RESPECTFULLY INSCRIBED.
CONTRIBUTIONS TO OBSTETRIC JURISPRUDENCE.
NO. I.
CRIMINAL ABORTION.
_By the Common Law and by many of our State Codes, fœtal life, per se, is
almost wholly ignored and its destruction unpunished_; abortion in every
case being considered an offence mainly against the mother, and as such,
unless fatal to her, a mere misdemeanor, or wholly disregarded.
_By the Moral Law_, THE WILFUL KILLING OF A HUMAN BEING AT ANY STAGE OF
ITS EXISTENCE IS MURDER.
In undertaking the discussion at length of this subject, three
preliminary facts must be assumed:—
_First._—That if abortion be ever a crime, it is, of necessity, even
in isolated cases, one of no small interest to moralist, jurist, and
physician; and that when general and common, this interest is extended to
the whole community and fearfully enhanced.
_Secondly._—That if the latter assumption be true, both in premise and
conclusion, neglected as the crime has been by most ethical writers and
political economists, hastily passed over by medical jurists,[1] and
confessedly everywhere the great opprobrium of the law, often indeed
by taunt that of medicine, either it cannot in the nature of things be
suppressed, as by these facts implied, or its suppression has not been
properly attempted. Discarding the former of these alternatives as alike
unworthy of belief and proved false by facts hereafter to be shown, it
will appear,
_Thirdly._—That the discussion now broached is neither supererogatory nor
out of place; further, that it is absolutely and necessarily demanded.
Moreover, in order that the importance and various bearings of the
subject may be better appreciated, and that the writer’s position and
aims may be more fairly understood, it must be borne in mind that there
exist to this discussion certain positive and apparent objections, which
have, in a measure, given rise to much of the silence and omission
alluded to above, and are, in the main, as follows:—
1. The natural dislike of any physician to enter upon a subject on some
points of which it is probable that a portion of the profession is at
variance with him, either from disbelief in the alleged increase of
criminal abortion, unnoticed for reasons shown hereafter, or from a blind
reliance on Providence of itself to abate the evil.
2. His fear, lest by any possible chance, by showing the frequency of the
crime and its means, he may unhappily cause its still further increase.
3. The reluctance on the part of many of the profession to attack a
powerful and acknowledged moneyed interest;
4. And to tell their patients, more commonly than is yet general,
most unwelcome truth; thus not merely condemning, but, to their own
consciences at least, criminating them;
5. And individually to risk losing practice, if thought more scrupulous
than others;
6. And to be brought into more frequent contact with the law, even though
for ends of justice;
7. And to exercise greater care and discretion in diagnosis and
treatment, lest themselves be brought to answer for malpractice, or worse;
8. And publicly to discuss matters supposed to be generally unknown, and
thus seem to throw open professional secrets to the world.
And, finally, grave doubts lest the statements made, though simple and
true, should yet appear so astounding as to shock belief, or so degrading
as to tend to lessen all faith in natural affection and general morality.
But these objections, so far at least as regards the profession, are
undoubtedly but of limited existence; and, on the other hand, as more
than counterbalancing them all, are the following arguments:—
That medical men are the physical guardians of women and their offspring;
from their position and peculiar knowledge necessitated in all obstetric
matters to regulate public sentiment and to govern the tribunals of
justice.
That the discussion by them of this crime may very probably be the
means, in great measure, of ultimately restraining or suppressing its
perpetration.
That such will undoubtedly tend to save much health to the community and
many human lives.
And, that, were there no other reason, it is clearly a duty.
I shall accordingly proceed to prove, so far as possible, the truth of
every premise as yet stated, and to show the real nature and frequency
of the crime: its causes; its victims; its perpetrators and its innocent
abettors; its means and its proofs; its excuses, the deficiencies and
errors of existing laws, and the various other obstacles to conviction;
and, above all, so far as the present series of papers is concerned, the
duty of the profession toward its general suppression.
I. IS ABORTION EVER A CRIME?
That this could have been doubted, least of all by mothers, however
ignorant or degraded, would at first sight appear improbable. The sense
of the public, however, its practice, its laws, being each proved to
the contrary by the stubborn evidence of facts, the necessity of our
preliminary inquiry will be made manifest.
To postpone, for the present, all other considerations, we will regard
abortion in the abstract. It may be defined, best perhaps, as the violent
and premature expulsion of the product of conception, independently of
its age, viability, and normal formation. These characteristics are
eliminated as having judicially and actually nothing to do with the
essential nature of abortion, whereas in infanticide they are each
elements of great importance; a difference that will hereafter be seen.
We further, in the present investigation, set aside all cases where
abortion is the result of accident, or from natural causes, or justified
by the rules of medicine, whether to save the mother or her child. We
shall have occasion, in the subsequent course of our inquiries, to
discuss this latter question somewhat fully, and to set forth unpleasant
truths. We now confine ourselves exclusively to those instances where
the attempt at premature expulsion of the product of conception is
artificially induced and intentional, and where, so far as can be judged,
it is not necessitated and would not otherwise have occurred.
In the first place, the laws do not recognize that unnecessary abortion,
_per se_, is a crime.
This act, when unnecessarily done, must be for one of two reasons:
either to prevent the product of conception from receiving life, which
subsequent evidence will show cannot be the case, or, if living, to
destroy it.
We have said that the Common Law and many of our American statutes lose
sight of this fundamental idea. Though based upon the first of the
above alternatives,—the erroneous one, as regards the fact of their
existence,—they are so worded as almost wholly to ignore fœtal life, to
refuse it protection, to insure their own evasion, and by their inherent
contradictions to extend the very crime they were framed to prevent.
They recognize, for the most part, no offence against the fœtus; we have
just shown that such, and such alone, is always intended. They punish
an attempt, which does not exist, upon the well-being or life of the
mother; the intent being seldom or never to destroy the mother. She
is herself, in almost every case, a party to the action performed; an
accessory or the principal. To constitute a crime, a malicious or wicked
intent is supposed to exist; we have thrown aside, as does the law, every
case occurring from accident or from justifiable cause. The intent, if
existing, as of course must be always the case, is against, and only
against, the product of conception.
Again, the punishment meted by the law proves the truth of these
propositions. Unless the woman die in consequence of the offence, it
is declared, in every stage of pregnancy, a mere misdemeanor, as in
Massachusetts; or else, while called such, or by omission justified
or openly allowed in the early months when the fœtus is without other
safeguard, the law pronounces abortion a felony and increases its
penalties in more advanced pregnancy, after quickening has rendered it
infinitely more certain that the fœtus will remain undisturbed, and has
thus in the great majority of cases prevented the crime.
On the other hand, granting for the moment that the erroneous assumptions
of the law were correct, and that the attempt were upon the life of the
mother, how inconsistent to punish murder, attempted or committed, if by
injury to the throat or heart, capitally, and if by injury to the womb,
by temporary imprisonment; especially where this latter case always
necessitates the slaughter of a second human victim.
Or, granting that the attempt were only upon the mother’s health or
temporary welfare, how absurd to punish the offence in early pregnancy,
where her risks are greatest, by a trifling penalty or not at all, and
in more advanced pregnancy, where these risks are daily lessened, with
increased severity.
And, finally, if the fœtus were, as has been sometimes supposed, merely
_pars viscerum matris_, its removal would be like that of a limb, or of
any other portion of the body, whose loss is not absolutely attended with
that of life; if made with the mother’s consent, it would be unpunishable
by law; if against her will, it would be already amenable, like other
maim or mutilation, to existing statutes. In the one case, laws against
abortion were needless; in the other, unjustifiable.
In a word, then, in the sight of the common law, and, in most cases of
the statutory law, also, the crime of abortion, properly considered,
does not exist; the law discussing and punishing a wholly supposititious
offence, which not only does not exist, but the very idea of whose
existence is simply absurd.
We turn now to public opinion. It, too, both in theory and in practice,
fails to recognize the crime. Its practical denial of the true character
of the offence will be shown in the course of our remarks on its
frequency. Its theoretical denial we here consider, as proved in three
ways—by implication, by collateral testimony, and by direct.
First, the maxims of the law are based on past or present public opinion.
If merely on past, and this has totally changed, the law in matters of
such importance is compelled to change also. The fact that the laws on
this subject remain unaltered, if it be granted, as will be proved, that
they are erroneous, furnishes us at the outset, and so far, with evidence
that public opinion was formerly wrong, and that it so continues.
The frequency of the offence, and the character and standing of the
mothers upon whose persons it is practised, accessories as we have seen,
or principals, to it, furnish similar and more cogent testimony regarding
the theory upon which it is founded. We shall soon perceive how extensive
and high reaching is the frequency; we must therefore conclude that the
public do not know, or knowing deny, the criminal character of the action
performed.
Again, the direct testimony of the parties themselves is often available.
It is undoubtedly a common experience, as has certainly been that of the
writer, for a physician to be assured by his patients, often no doubt
falsely, but frequently with sincerity, that their abortions have been
induced in utter ignorance of the commission of wrong; in belief that
the contents of the womb, so long as manifesting no perceptible sign of
life, were but lifeless and inert matter; in other words, that being,
previously to quickening, a mere ovarian excretion, they might be thrown
off and expelled from the system as coolly and as guiltlessly as those
from the bladder and rectum.
It having now been shown, directly and by temporary assumption, that the
law and public sentiment, both by its theory and its practice, alike deny
to unjustifiable abortion the imputation of crime, it remains for us to
discuss this question abstractly, and to prove not merely that they are
wrong, but that the offence is one of the deepest guilt, a crime SECOND
TO NONE.
Ignorance of the law is held no excuse. The plea of ignorance of guilt
could hardly better avail where its existence is implied by common sense,
by analogy, and by all natural instinct, binding even on brutes. Were
this guilt, however, clearly shown, and its knowledge, supposed wanting,
to be spread broadcast by the press, the all-powerful arbiter of public
opinion, the last and strongest prop of the crime were gone.
It has been shown, by setting aside all accidental cases, those naturally
occurring and those necessarily, and in the absence of reasonable
evidence to the contrary, that all other abortions must be intentional,
that they must be occasioned by the “malice aforethought” of the law. It
has also been shown that in these cases, except it exist as an additional
element, the malicious intention is not against the life or person of the
mother, but that in every instance it is against the product of her womb.
Hence, the whole question of the criminality of the offence turns on
this one fact, the real nature of the fœtus in utero. If the fœtus be a
lifeless excretion, however soon it might have received life, the offence
is comparatively as _nothing_; if the fœtus be already, and from the very
outset, a human being, alive, however early its stage of development, and
existing independently of its mother, though drawing its sustenance from
her, the offence becomes, in every stage of pregnancy, MURDER.
“Every act of procuring abortion,” rules Judge King, of Philadelphia,[2]
contrary to the usual interpretation of the law, “is murder, whether
the person perpetrating such act intended to kill the woman, or merely
feloniously to destroy the fruit of her womb.”
Common sense, we have said, would lead us to the conclusion that the
fœtus is from the very outset a living and distinct being. It is alike
absurd to suppose identity of bodies and independence of life, or
independence of bodies and identity of life; the mother and the child
within her, in abstract existence, must be entirely identical from
conception to birth, or entirely distinct. Allowing, then, as must be
done, that the ovum does not originate in the uterus; that for a time,
however slight, during its passage through the Fallopian tube, its
connection with the mother is wholly broken; that its subsequent history
is one merely of development, its attachment merely for nutrition and
shelter, it is not rational to suppose that its total independence, thus
once established, becomes again merged into total identity, however
temporary; or that life, depending not on nine months’ growth, nor on
birth, because confessedly existing long before the latter period,—since
quickening at least, a time varying within wide limits,—dates from any
other epoch than conception; while it is as irrational to think that the
influence of the father, mental and moral as well as physical, so often
and so plainly manifested, can be exercised by any possibility upon the
child at any other moment than that original and only one of impregnation
itself.
Another argument is furnished us, similar, but differing. The fœtus,
previous to quickening, as after it, must exist in one of two states,
either death or life. The former cannot take place, nor can it ever
exist, except as a finality. If its signs do not at once manifest
themselves, as is generally the case, and the fœtus be retained in utero,
it must either become mummified or disintegrated; it can never again
become vivified. If, therefore, death has not taken place, and we can
conceive no other state of the fœtus save one, that, namely life, must
exist from the beginning.
These reasonings are strengthened by the evidence of analogy. The
utter loss of direct influence by the female bird upon its offspring
from the time the egg has left her, and the marked effect, originally,
of the male; the independence in body, in movement, and in life,
of young marsupial mammals, almost from the very moment of their
conception, identical analogically with the intra-uterine state of
other embryos,—nourishment by teat merely replacing that by placenta at
an earlier period; the same in birds, shown by movements in their egg
on cold immersion before the end of incubation; the permanence of low
vitality, or of impaired or distorted nervous force, arising from early
arrest or error of development, and necessarily contemporaneous with it,
are all instances in point.
Brute instincts are often thought wholly supplanted by human reason.
That this is not so is proved by what obtains in the absence of reason,
whether from the outset or subsequently occurring. Idiots and lunatics
alike show the actual identity in this respect of man and the brute,
however instinct, in the former, may normally be tempered by conscience
and reason. Whatever ideas on the subject of abortion the human mind may
have forced itself to entertain, let the slightest proof concerning the
existence of fœtal life be alleged, and maternal instinct at once makes
itself known: the parent, as after its birth, would often even perish to
preserve her child. This is not conscience, which is stirred only by an
afterthought, but instinct.
Thus far, incidental proof concerning the commencement of fœtal life, and
so the guilt of unjustifiable abortion. More decisive evidence is at hand.
That the movements of the fœtus, subsequent to quickening, whatever the
actual nature of that first sensation may be, declare the existence of
intra-uterine life, is allowed by the world; by none more than by mothers
themselves, whose statistics prove that after the perception of these
movements criminal abortions are comparatively rare.
But quickening,—a period usually occurring from the one hundred and
fifteenth to the one hundred and thirtieth day after conception, but
varying within still more appreciable limits in different women, and in
the same women in different pregnancies, from variations in the amount
of liquor amnii, the early strength of the fœtus, and other causes, and
also, if at all, owing in its first sensation to rising of the womb from
the pelvis, probably occurring a little earlier with boys than with
girls, from their relative difference in size,[3]—is often absent, even
throughout pregnancy; and fœtal movements are sometimes appreciable to
the attendant when not to the mother, or indeed to the mother alone.
Further, in premature births, where quickening has not occurred, or
before its usual period, by the movements of the fœtus, its earlier
independent and vital existence is sometimes reduced to a matter of
ocular demonstration; while to the ear, in very many instances, as early
and as conclusive evidence is afforded by the sounds these movements give
rise to.[4]
Quickening is therefore as unlikely a period for the commencement of
fœtal life as those others set by Hippocrates and his successors, varying
from the third day after conception, to that of the Stoics, namely birth,
and as false as them all.
We need not, with Dubois[5] and some earlier writers,[6] from the
manifest relation of means to the end, consider that the movements
of the fœtus in utero, and its consequent attitude and position, are
signs of an already developed and decided sentience and will, nor is it
requisite to suppose them the effect of an almost rational instinct. But
that they are wholly independent of the will and the consciousness of
the mother, and yet by no means characteristic of organic life, whether
hers or its own,—which latter is also by abundant evidence proved
independently to exist,—but decidedly animal in their character; that
they are not explainable by gravity, despite all the arguments alleged,
latest by Matthews Duncan,[7] nor on any other supposition save that of a
special and independent excito-motory system, distinct from that of the
mother,[8] brings us directly down to this—the existence of as distinct
and independent a nervous centre, self-existing, self-acting, living.
We set aside all the speculations of metaphysicians regarding moral
accountability of the fœtus, the “potential man,” and its “inanimate
vitalities,” as useless as they are bewildering. If there be life, then
also the existence, however undeveloped, of an intellectual, moral, and
spiritual nature, the inalienable attribute of humanity, is implied.
If we have proved the existence of fœtal life before quickening has
taken place or can take place, and by all analogy and a close and
conclusive process of induction, its commencement at the very beginning,
at conception itself, we are compelled to believe unjustifiable abortion
always a crime.
And now words fail. Of the mother, by consent or by her own hand, imbrued
with her infant’s blood; of the equally guilty father, who counsels
or allows the crime; of the wretches who by their wholesale murders
far out-Herod Burke and Hare; of the public sentiment which palliates,
pardons, and would even praise this so common violation of all law, human
and divine, of all instinct, of all reason, all pity, all mercy, all
love, we leave those to speak who can.
We have next to prove—
II. ITS FREQUENCY, AND THE CAUSES THEREOF.
Though we cannot at once, and in exact figures, show the yearly amount
of criminal abortion in this country, statistics on the subject being
necessarily imperfect or wanting, we may yet arrive at an approximate
result. This is done by an easy and reliable process of induction,
the several factors of which, each of itself rendering probable the
conclusion, tend, when combined, to make it almost absolutely certain.
We are to consider, in this connection, the evidence afforded by—
I.—The comparative increase of population.
II.—The published records of still-births.
III.—The number of arrests, or trials for abortion.
IV.—The published number of immediate maternal deaths.
V.—The pecuniary success of abortionists, and
abortion-producing nostrums.
VI.—The comparative size of families in present and past times.
VII.—The experience of physicians—direct from applications for
abortion and actual cases, and indirect from their results.
Several of these points are as yet almost wholly uninvestigated. They are
stated, therefore, with care, as bearing decidedly on the question at
issue, and as tending to provoke still further research.
To go into an elaborate comparison of our national and state censuses
with themselves, past and present, with each other, and with those
of similar communities abroad, involving, as it would do, intricate
calculations regarding the effect of emigration from state to state, and
from nation to nation, the increase of urban population, and the frequent
decrease of rural, is not our present intention, nor is it necessary. By
considering this point in connection with that immediately succeeding it,
with which it is intimately related, its bearing and importance will at
once be seen.
Statistics in this country are as yet so imperfect, that we are
necessitated to a process of deduction. If it can be shown that a state
of things prevails elsewhere to a certain extent, explainable only on
one supposition, and that the same state of things prevails in this
country to a greater extent, all other causes, save the one referred to,
being in great measure absent, little doubt can be entertained of the
part this plays; but if it can, in addition, be proved that this cause
must necessarily be stronger with us than elsewhere, then its existence
becomes morally certain. Accordingly, if we find that in another
country living births are steadily lessening in proportion alike to the
population and to its increase, that natural or preventive causes are
insufficient to account for this, while the proportion of still-births
and of known abortions is constantly increasing, and these last bear an
evident yet increasing ratio to the still-births; that in this country
the decrease of living births, and the increase of still-births, are in
much greater ratio to the population, and the proportion of premature
births is also increasing; that these relations are constant and yearly
more marked, we are justified in supposing that abortions are at least as
frequent with us, and probably more so.
In many countries of Europe, it has been ascertained that the “fecundity”
of the population, or the rate of its annual increase, is rapidly
diminishing.[9]
In Sweden, it has lessened by one-ninth in 61 years. In Prussia, by a
third in 132 years. In Denmark, by a quarter in 82 years. In England,
by two-sevenths in a century. In Russia, by an eighth in 28 years. In
Spain, by a sixth in 30 years. In Germany, by a thirteenth in 17 years.
In France, by a third in 71 years.[10]
Or, in other words:
In Sweden it has lessened by a fifth; in Prussia, by a fourth; in Denmark
and England, by a third; and in Russia, Spain, Germany, and France by a
half, in a single century.
For the sake of convenience, larger bodies of statistics existing
concerning it, and from the fact that it represents the extreme of the
alleged decrease, we take France for our comparisons.
In France at large, according to the official returns as analyzed by
Legoyt, the increase of the population which, from 1801 to 1806, was at
the rate of 1.28 per cent. annually, from 1806 to 1846 had fallen to
about .5 per cent.[11] The exact ratio of decrease after this point is
better shown by the figures themselves. The increase from 1841 to 1846
was 1,200,000; from 1846 to 1851, 380,000; from 1851 to 1856, 256,000.
In England, during this latter period, with a population of but one-half
the size, the returns of the Registrar-General show a relative increase
nine times greater.[12] In thirty-seven years, from 1817 to 1854, the
mean annual increase in France was not more than 155,929, yet in five
years, from 1846 to 1851, it had fallen to 76,000 yearly, and from 1851
to 1856, to 51,200, and this with a population ranging from twenty-nine
to thirty-four millions.
A comparison of these facts, with those obtaining in other European
States, will make the above still more evident. We now quote from Rau.[13]
Rate of Increase.
Per Cent.
Hungary, according to Rohrer 2.40
England, from 1811 to 1821 1.78
” from 1821 to 1831 1.60
Prussia, from 1816 to 1827 1.54
” from 1820 to 1830 1.37
” from 1821 to 1831 1.27
Austria, (Rohrer) 1.30
Scotland, from 1821 to 1831 1.30
Netherlands, from 1821 to 1828 1.28
Saxony, from 1815 to 1830 1.15
Baden (Heunisch,) from 1820 to 1830 1.13
Bavaria, from 1814 to 1828 1.08
Naples, from 1814 to 1824 0.83
France (Mathieu,) from 1817 to 1827 0.63
France, more recently, (De Jonnés) 0.55
A similar and corroborative table, containing additional matter, is given
by Quetelet;[14] its differences from the preceding are owing to its
representing a series of different years.
Rate of Increase.
Per Cent.
Ireland 2.45
Hungary 2.40
Spain 1.66
England 1.65
Rhenish Prussia 1.33
Austria 1.30
Bavaria 1.08
Netherlands 0.94
Naples 0.83
France 0.63
And more recently, Legoyt brings up these results to the close of
1846.[15] As shown by the census, the rate of increase was, in
Per Cent.
Great Britain, exclusive of Ireland 1.95
Prussia 1.84
Saxony 1.45
Norway 1.36
Sardinia 1.08
Holland 0.90
Austria 0.85
Sweden 0.83
France 0.68
Or, as shown by the annual excess of births over deaths, and therefore
more reliable—
Per Cent.
Norway 1.30
Prussia 1.18
Sweden 1.14
Holland 1.03
Wurtemberg 1.00
Great Britain, exclusive of Ireland 1.00
Denmark 0.95
Austria 0.90
Saxony 0.90
Hanover 0.85
Belgium 0.76
Bavaria 0.71
Russia 0.61
France 0.50
In four departments of France, among which are two of the most thriving
of Normandy, the deaths actually exceed the births.[16]
From the above facts, it would naturally be supposed that the percentage
of births to the whole population must be smaller than in other European
countries, and from the lessened annual rate of increase of the
population, that the proportionate number of births must be decreasing in
similar ratio. This is found, indeed, to be the case.
From large statistics furnished by De Jonnés, we have compiled the
following table of the comparative ratios of births to the population in
the principal countries of Europe:—
Ratio.
Venice and Dependencies, 1827 1 to 23
Tuscany, 1834 ”
Lombardy, 1828 1 to 24
Russia, 1835 1 to 25
Wurtemberg, 1821 to 1827 ”
Prussia, 1836 ”
Mecklenburg, 1826 1 to 26
Sardinia, 1820 ”
Naples and Dependencies, 1830 ”
Greece, 1828 ”
Poland, 1830 1 to 27
Ireland, 1821 to 1831 ”
Germany, 1828 ”
Switzerland, 1828 ”
Spain, 1826 ”
Portugal, 1815 to 1819 1 to 27.5
Sweden, 1825 1 to 28
Holland, 1832 ”
Austria, 1829 ”
Belgium, 1836 ”
Bavaria, 1825 ”
Two Sicilies, 1831 ”
Sweden and Norway, 1828 1 to 30
Denmark, 1833 ”
Roman States, 1836 ”
Turkey, 1835 ”
Hanover, 1835 1 to 31
Sicily, 1832 ”
Austria, 1828 to 1830 1 to 32
Great Britain, 1821 to 1831 ”
Scotland, 1821 to 1831 1 to 34
England, 1821 to 1831 1 to 35
Norway, 1832 ”
France, 1771 to 1851 1 to 25
to 1 to 37
In a total population, at different periods, of 232,673,000, there were
8,733,000 births; whence an average on the grand scale of one birth to
every 26.6 individuals.
In France, however, the ratio has been steadily lessening, as seen by the
following table:—
Ratio of births.
1771 to 1775 1 to 25
1801 to 1810 1 to 30
1811 to 1825 1 to 32
1826 to 1836 1 to 33
1836 to 1840 1 to 34
1841 to 1845 1 to 35
1846 to 1850 1 to 37
The position of France, as compared with the rest of Europe, in respect
to the ratio of births to the population at different periods, is made
still more manifest by another table:—
Annual ratio of births.
1 to 23 Venetian Provinces, 1827; Tuscany, 1834.
1 to 23.5 Kingdom of Naples, 1822 to 1824.
1 to 24 Tuscany, 1818; Sicily, 1824; Lombardy, 1827 to 1828;
Russia, 1831.
1 to 24.5 Prussia, 1825 to 1826.
1 to 25 France, 1781; Austria, 1827; Russia, 1835; Prussia, 1836.
1 to 26 Sardinia, 1820; Hanover, Wurtemberg and Mecklenburg, 1826;
Greece, 1828; Naples, 1830.
1 to 27 Spain, 1826; Germany and Switzerland, 1828; Poland, 1830;
Ireland, 1831.
1 to 27.5 Portugal, 1815 to 1819.
1 to 28 Holland, 1813 to 1824; Bavaria and Sweden, 1825; Austria,
1829; Belgium, 1836.
1 to 29 Canton Lucerne, 1810; Holland, 1832.
1 to 29.8 France, 1801.
1 to 30 Sweden and Norway, 1828; Belgium, 1832; Denmark, 1833;
Turkey, 1835; States of the Church, 1836.
1 to 31 Sicily, 1832; Hanover, 1835.
1 to 31.4 France, 1811.
1 to 31.6 France, 1821.
1 to 32 Austria, 1830; Great Britain and Switzerland, 1831.
1 to 33 France, 1828 to 1831.
1 to 34 Norway and Holstein, 1826; Scotland, 1831; France, 1834
to 1841.
1 to 35 Denmark, 1810; England, 1831; Norway, 1832.
1 to 37 France, 1851.
In Paris, strange to say, the decrease in the ratio of births to the
population, though decided and steady, has not, in actual proportion,
been as great as in the empire at large, showing that the cause, whatever
we find it to be, is not one depending on the influence of a metropolis
alone for its existence.
From 1817 to 1831 there averaged, in Paris, one birth to 26.87
inhabitants; but from 1846 to 1851, one to 31.98.[17]
Again, as might have been expected, we find that the proportion of
still-births, in which we must include abortions, as has hitherto been
done, however improperly, in all extensive statistics, is enormous, and
is steadily increasing. To show this the more plainly, we first present
a table of the ratio of still-births to the living births in the various
countries of Europe.[18]
Geneva,[19] 1824 to 1833 1 to 17
Berlin Hospitals, 1758 to 1774 1 to 18
Paris Maternité,[20] 1816 to 1835 1 to 20
Sweden, 1821 to 1825 1 to 23.5
Denmark, 1825 to 1834 1 to 24
Belgium,[21] 1841 to 1843 1 to 24.2
Prussia,[22] 1820 to 1834 1 to 29
Iceland, 1817 to 1828 1 to 30
Prague, 1820 1 to 30
London Hospitals, 1749 to 1781 1 to 31
Vienna, 1823 1 to 32
Austria, 1828 1 to 49
France at large, 1853 1 to 24
Department of Seine 1 to 15
Paris,[23] 1836 to 1844 1 to 14.3
” 1845 to 1853[24] 1 to 13.8
The proportion of still-births in the rural districts of France is
governed by the same laws as in the metropolis.
In 363 provincial towns the ratio was, from
1836 to 1845 1 to 19.55
1846 to 1850 1 to 18.8
While districts more thinly populated gave, from
1841 to 1845 1 to 29
1846 to 1850 1 to 27[25]
In Belgium, during a similar period, the ratio was much the same.[26]
1841 to 1843, in towns 1 to 16.1
1841 to 1843, in country 1 to 29.4
The apparent discrepancy between city and country, noticed as equally
obtaining in Belgium and France, is chiefly owing to greater negligence
of the country officials in registering the still-births, and to
the fact, as we have seen in Paris, that the ratio of births to the
population is greater in the city than in the country at large.
Finally, while the proportion of still-births to the whole number is
greatly increasing in Paris, so is the number of known abortions.
We omit, for the present, the evidence afforded by arrests and trials,
which we might here have turned to account. At the Morgue, which
represents but a very small fraction of the fœtal mortality of Paris,
and in this matter almost only crime, there were deposited during the
eighteen years preceding 1855, a total of 1115 fœtuses,[27] of which 423
were at the full term, and 692 were less than nine months; and of these
last, 519, or five-sixths, were not over six months, a large proportion
of them showing decided marks of criminal abortion.
Again, of the 692 fœtuses of less than nine months, deposited at the
Morgue during these eighteen years, 295 were between 1836 to 1845, an
average, at that time, of 32.7 yearly; and from 1846 to 1855 there were
397, an average of 44.1. During the means of these periods the births in
France were as follows[28]:—In 1841, 1,005,203, and in 1851, 1,037,040,
from which it is evident that there was deposited at the Morgue, in 1841,
one infant, dead from abortion, to every 30,700 births; and in 1851, one
to every 23,500. The increased ratio is seen to be striking; it will
hereafter become apparent that the increase is far greater in reality.
We turn now to our own country, to which the City of New York holds much
the same relation, as respects public opinion no less than in other
matters, that Paris holds to France.
Since 1805, when returns were first made to the Registry of New York,
the number, proportionate as well as actual, of fœtal deaths, has
steadily and rapidly increased. With a population at that time (1805) of
76,770, the number of still and premature births was 47; in 1849, with
a population estimated at 450,000, the number had swelled to 1320.[29]
Thus, while the population had increased only _six_ times since 1805,
the annual number of still and premature births had multiplied over
_twenty-seven_ times.
The following table shows the rapidity of this increase:—The ratio of
fœtal deaths to the population, was in
1805 1 to 1633.40
1810 1 to 1025.24
1815 1 to 986.46
1820 1 to 654.52
1825 1 to 680.68
1830 1 to 597.60
1835 1 to 569.88
1840 1 to 516.02
1845 1 to 384.68
1849 1 to 340.90
In the three years preceding 1849, there were registered in New York
400 premature births, and 3139 children still-born; a total of 3539,
representing at that time a yearly average of some 1200 fœtal deaths.
While it will be shown hereafter that a large proportion of the reported
premature births must always be from criminal causes, and that though
almost all the still-births at the full time, even from infanticide,
are necessarily registered, but a small proportion of the abortions and
miscarriages occurring are ever reported to the proper authorities, it
will immediately be made apparent that at the present moment the abortion
statistics of New York are far above those of 1849.
In the three years preceding 1857, there were registered in New York 1196
premature, and 4735 still-births,[30] a total of 5931, representing a
yearly average of some 2000 fœtal deaths; showing that in the short space
of seven years, the number of fœtal deaths in New York, already enormous,
had very nearly doubled.
Again, in 1856, the total number of births at the full time in New York,
was 17,755; of these, 16,199 were living;[31] proving that of children at
the full time alone, setting aside the great number of viable children
born prematurely, and the innumerable earlier abortions not recorded, one
in every 11.4 is born dead.
From foreign statistics on a large scale, it is found that the proportion
of still-births, even allowing a wide margin for criminal causes, does
not, in those countries, drop below 1 in 15, and this in France, ranging
from that number up to 1 in 30 or 40 of the whole number of births
reported. We have already given a table upon this point.
In Geneva, out of 10,925 births occurring from 1824 to 1833, 1221 of them
being _illegitimate_, and therefore to be supposed liable to a large
percentage of deaths from criminal causes, there were only 646 fœtal
deaths; a proportion of 1 in 17.
In Belgium there were 29,574 _illegitimate_ births from 1841 to 1843, and
of these, 1766 were born still;[32] 1 in 16.8.
In New York, from 1854 to 1857, there were 48,323 births, and 5931
still-births, at the full time and prematurely; or in other words, 1 to
every 8.1 was born dead.
The ratio of still-births in New York, including, as we have seen,
abortions, is steadily increasing, as seen by the following table,[33] in
which we have compared the still-births, supposable perhaps of accidental
value, with the general mortality, whose value is at least as accidental,
if not more so. The evidence, like that already furnished, is astounding.
Total mortality. Still-births. Ratio.
1804 to 1809 13,128 349 1 to 37.6
1809 to 1815 14,011 533 1 to 26.3
1815 to 1825 34,798 1,818 1 to 19.1
1825 to 1835 59,347 3,744 1 to 15.8
1835 to 1855 289,786 21,702 1 to 13.3
1856[34] 21,658 1,943 1 to 11.1
The frequency of abortions and premature births reported from the
practice of physicians, and thus to a certain extent, but not entirely,
likely to be of natural or accidental origin, is as follows:—
In 41,699 cases registered by Collins, Beatty, La Chapelle, Churchill,
and others,[35] there were 530 abortions and miscarriages. Here all the
abortions were known; their proportion was 1 in 78.5.
In New York, from 1854 to 1857, there were 48,323 births at the full time
reported, and 1196 premature. Here all the abortions were not known,
probably but a very small fraction of them; the proportion was 1 in 40.4.
Finally, we compare the recorded premature still-births of New York, with
those still at the full time.
In the seventeen years from 1838 to 1855,[36] there were reported 17,237
still-births at the full time, and 2710 still prematurely; the last
bearing the proportion of 1 to 6.3.
In the nine years, from 1838 to 1847, omitting 1842 for reasons stated
below, there were 632 premature still-births, and 6445 still at the full
time; a yearly average of 1 in 10.2.
In the eight years, from 1848 to 1855, there were 2078 premature
still-births, and 10,792 still at the full time; an average of 1 in 5.
While in 1856 there were 387 still prematurely, and 1556 at the full
time; or 1 in 4.02.
From these figures there can be drawn but one conclusion, that criminal
abortion prevails to an enormous extent in New York, and that it is
steadily and rapidly increasing. “We cannot refer,” was well said by a
former inspector of that city,[37] “such a hecatomb of human offspring
to natural causes.” We shall now endeavor to prove this point by other
reasoning.
That our deductions concerning the population and births of France are
perfectly legitimate, is admitted beforehand by the leading political
economists of the day; ignorant as they were in its various relations of
much of the evidence now brought forward, and of the conclusion to which
the whole matter, directly and with almost mathematical exactness, is
proved to tend.
“In France,” remarks De Jonnés,[38] “the fecundity of the people is
restrained within the strictest limits.”
“The rate of increase of the French population,” says Mill, “is the
slowest in Europe;[39] the number of births not increasing at all,
while the proportion of births to the population is considerably
diminishing.”[40]
We have seen, moreover, that in France the actual ratio of living births
is constantly and rapidly diminishing, while the still-births, actual and
proportional, are as fast increasing; that the premature births progress
in similar ratio, and by deduction and actual statistics, the criminal
abortions; and that these facts obtain not merely in the metropolis, but
throughout the country.
What are the causes of these remarkable facts, need it now be asked? Let
all allowances be made for certain conjugal habits extensively existing
among the French, and by no means rarely imitated in this country,
but the proportionate decrease of living births is too enormous, the
actual and proportionate increase of premature and still-births is too
frightful to be wholly explained thus, or as West,[41] Husson,[42] and De
Jonnés[43] have thought, to be attributed to a mere progressive lack of
fecundity. Reason and the evidence alleged compel us to believe that in
great measure they are owing to criminal abortion.
Political economists allow the facts in France to be as we have stated.
Their interpretation of the causes, unwilling as they would be to confess
its ultimate bearing, we now compel to serve as evidence.
“They depend,” according to one writer,[44] “either on physical agents,
especially climate, or on the degree of civilization of a people, their
domestic and social habits.” “In France the climate is favorable to an
increase of population, and this obstacle, this restraint, is found in
its advanced civilization.”[45]
“This diminution of births,” says Legoyt,[46] “in the presence of a
constant increase of the general population and of marriages, can be
attributed to nothing else than wise and increased foresight on the part
of the parent.”
“The French peasant is no simple countryman, no downright ‘Paysan du
Danube;’ both in fact and in fiction he is now ‘le rusé paysan.’ That
is the stage which he has reached in the progressive development which
_the constitution of things has imposed on human intelligence and human
emancipation_.”[47]
“These facts are only to be accounted for in two ways. Either the whole
number of births which nature admits of, and which happen in some
circumstances, do not take place, or if they do, a large proportion of
those who are born, die. The retardation of increase results either
from mortality or prudence; from Mr. Malthus’s positive, or from his
preventive check; and one or the other of these must and does exist, and
very powerfully too, in all old societies. Wherever population is not
kept down by the prudence of individuals or of the State, it is kept down
by starvation or disease.”[48]
But on the other hand, it has been forgotten that the alternative
supposed does not exist in the case we have instanced. Marriages in
France, unlike some other continental States, are continually increasing,
and starvation and disease are yearly being shorn of their power. The
authors quoted are therefore forced to a single position; that the
lessening of births can only be owing to “prudence” on the part of the
community.
Moreover, it is allowed by Mill and by Malthus himself,[49] that so
much of the decrease as cannot thus be explained, must be attributed to
influences generally prevalent in Europe in earlier ages, and in Asia to
the present time. “Throughout Europe these causes have much diminished,
but they have nowhere ceased to exist.”[50] Several of them have been
named by the authority now quoted. Another, and greater than them all, he
leaves unspoken; we are compelled to supply for him the omission.
The practice of destroying the fœtus in utero, to say nothing of
infanticide, history declares to have obtained among all the earlier
nations of the world, the Jews alone excepted, and to a very great
extent. Aristotle defends it,[51] and Plato.[52] It is mentioned by
Juvenal,[53] Ovid,[54] Seneca, and Cicero, and is denounced by the
earlier Christians.[55] It was common in Europe through the middle ages,
and still prevails among the Mohammedans,[56] Chinese,[57] Japanese,[58]
Hindoos,[59] and most of the nations of Africa and Polynesia,[60] to such
an extent, that we may well doubt whether more have ever perished in
those countries by plague, by famine, and the sword.
It is evident, therefore, that the actual and proportionate increase of
still-births, and, by induction, setting aside all probable cases of
infanticide, of abortion, and the comparative increase of a population
reciprocally influence and govern each other so completely, that from the
one it may in any given case be almost foreseen what the other must prove.
It is impossible that the results quoted from the Registry of New York,
any more than those of France, even if so far, can in any great measure
be owing to natural causes alone. They are wholly inexplicable on any
principles, “which do not recognize an amount of guilt at which humanity
shudders.” In comparing that city with Paris, certain allowances must
indeed be made; abroad, for the effects of wars and conscription,
of despotism, and of migration outward; at home, for the effects of
governmental laxity, and of migration inward. In both cities the amount
of prostitution, an element not to be lost sight of, must be nearly
the same; and in both, under the steady progress of science, medical
and hygienic, the ratio of fœtal mortality, unless induced by criminal
causes, may year by year be supposed to have been steadily diminished.
We have seen that in New York, in the absence of all influences that
tend to keep down population in foreign countries, old and crowded, and
under the yoke of despotism, the effects, attributable elsewhere to these
causes, exist, and to a greater degree than in any other country;
That the ratio of fœtal deaths to the population had swelled from 1 in
1633, in 1805, to 1 in 340, in 1849; while in France, at a later period,
1851, they were only about 1 in 1000;
That the actual number of fœtal deaths in seven years, from 1850 to 1857,
had very nearly doubled;
That the fœtal deaths, as compared with the total of births, elsewhere in
cases of illegitimacy, where the results are the very worst, and where
crime is confessed to have produced them, being 1 in 16.8,[61] had here,
legitimate and natural, reached the frightful ratio of 1 in 8.1;
That the fœtal deaths, as compared with the total mortality, had
increased from 1 in 37, in 1805, to 1 in 13, in 1855;
That the reported early abortions, of which the greater number of course
escape registry, bear the ratio to the living births of 1 in 40.4, while
elsewhere they are only 1 in 78.5;
And finally, that early abortions, bearing the proportion to the
still-births at the full time of 1 in 10.2, in 1846, had increased to 1
in 4.02, in 1856.
It must be borne in mind that these statistics are positive, proving the
existence of a certain number of pregnancies abruptly terminated. They
cannot therefore be controverted by any argument regarding means for the
prevention of pregnancy, no matter to what extent these may be used.
Nor should it be forgotten that for every registered premature birth or
abortion, innumerable ones occur that are never recorded.
Almost doubling therefore, as does New York, the worst of those fearful
ratios of fœtal mortality existing in Europe, it is not strange that our
metropolis has been held up, even by a Parisian, to the execration of the
world. “On le voit (l’avortement)” says Tardieu, “en Amérique, dans une
grande cìté comme New York, constituer une industrie véritable et non
poursuivie.”
In this description of New York, we have that of the country.[62] The
relative annual increase of the population existing throughout America,
depending as this does chiefly on immigration, must not mislead us.
The ratio of fœtal death in the metropolis surpasses what has ever
been dreamed to obtain even in old countries, where innumerable more
legitimate causes for it might be thought to exist. At Boston, which for
morals is allowed to compare favorably with any city of its size in the
Union, “undoubtedly more than a hundred still-births yearly escape being
recorded, a large proportion of which, no doubt, result from criminal
abortion.”[63] And our public prints, far and wide, even in the smaller
towns and villages, constantly chronicle deaths from the commission of
the crime.
In the State of Massachusetts at large, it has been found of late years
that “the increase of the population, or the excess of the births over
the deaths, has been _wholly_ of those of _recent foreign origin_;”[64]
this in 1850. In 1853 “it is evident that the births within the
Commonwealth, with the usual increase, have resulted in favor of foreign
parents in an increased ratio.”[65] In other words, it is found that
in so far as depends upon the American and native element, and in the
absence of the existing immigration from abroad, the population of
Massachusetts is stationary or decreasing.[66]
“This result will doubtless surprise many, who will hardly think it
possible. Is it general, or is it accidental? If it be general, how has
it happened? What causes have been in operation to produce it? How is it
to be accounted for?”[67] These questions have hitherto been unanswered.
We shall find, however, their solution only too easy.
Amid such general thrift and wealth, there has been every reason for the
native, like the foreign population, to increase. The preventive check
of the economists, though undoubtedly present, can have played but an
inferior part, as we shall prove. Emigration westward, the only apparent
positive check, though extensive, cannot wholly account for the result.
But statistics exist by whose light, if acknowledged, we may read this
important problem.[68]
In 1850, the ratio of births to the population in Massachusetts, foreign
and American combined, was 1 in 36,[69] and in 1855, 1 in 34;[70] a ratio
much smaller than that obtaining in most countries of Europe, and about
equaling that of France, which, in 1850, was 1 in 37.
In 1855, the ratio of still-births, at the full time and premature, as
compared with the living births, was 1 to 15.5.[71] In France it is 1 to
24; in Austria, 1 to 49.
In 1851, the ratio of fœtal deaths to the general mortality, was 1 to
13.3;[72] in 1855,1 to 10.4.[73] In New York City, in 1856, it was 1 to
11. In any city we should expect to find the proportion much greater than
in a State at large; we here find it less.
The ratio of premature births to those at the full time, during the
period from 1850 to 1856, was 1 to 26.1.[74] In New York, in 1857, it was
1 to 40, and in good medical practice it is found, as we have seen, to be
1 in 78.
In comparing the recorded abortions and premature births in the City of
New York, with the still-births there occurring at the full time, we
found that the former had varied from 1 in 10, in 1838, to 1 in 4, in
1856.
In the State of Massachusetts it appears, that during the fourteen years
and eight months preceding 1855, there were recorded 4570 still-births,
and 11,716 premature births and abortions,[75] the ratio being 1
abortion to .3 still-birth; or, in other words, it would appear from
the statistics quoted, that the comparative frequency of abortions in
Massachusetts is _thirteen_ times as great as in the worst statistics of
the City of New York. We are willing, however, we rejoice, to modify this
statement, as in the earliest of the years quoted, returns from the City
of Boston seem to have been imperfect or wanting,—and to confine our
calculations to a more recent period.
From 1850 to 1855, the registration being much more accurate than
before, and its results compiled with the greatest care, three years of
the five by a noted statistician, Dr. Shurtleff, there were recorded
in Massachusetts, 2976 still-births, and 5899 premature births and
abortions,[76] the ratio being 1 abortion to .5 still-birth; in other
words, the frequency of abortions as compared with still-births at the
full time, seems at least eight times as great in Massachusetts as in the
worst statistics of the City of New York.[77]
It must not be forgotten that while nearly every still-birth at the full
time is necessarily recorded, there must be but very few registrations of
the premature births and abortions actually occurring; that though the
contrary seems here the case, such occurrences are generally, as they
would be supposed, far more frequent in crowded cities than in country
districts, or in a State at large; and that however great may be the
influence of the prevention of pregnancy in repressing a population,
these constitute proofs of pregnancies actually occurring, and frequently
criminally terminated.
Few persons could have believed possible the existence of such frightful
statistics, the result toward which they must be confessed inevitably to
tend, or the dread cause from which they spring. Either these statistics
must be thrown aside as utterly erroneous and worthless, or they must be
accepted with their conclusions. We would gladly do the former, but they
present too many constant quantities, in other respects,[78] for this to
be allowed. Our own calculations have been made with care, and we have
presented the elements on which they rest. In asserting the results, at
once so awful and astounding, we desire to fix upon them the attention
and scrutiny of the world.
We have seen that the increase of the population of Massachusetts by
living births, is almost exclusively among its resident foreigners,
Catholics, the rules of whose church will hereafter be shown to exercise
an important influence in preventing the destruction of fœtal life. The
conclusion cannot therefore well be avoided, that in these facts there
exists the evident relation here intimated, of effects to cause.
With some certainty, then, even though statistics are as yet so
imperfect, can we assert this conclusion, that frightful as is the extent
to which the crime of abortion is perpetrated abroad, there is reason to
believe that it prevails to an equal, if not even greater extent at home.
The frequency of arrests or trials for abortion afford, save indirectly,
no criterion of the actual frequency of the crime. Our laws on this
subject are at present so easily evaded, that officers of justice find
it useless to trouble themselves with its prosecution; it is indeed “non
poursuivie.” During the eight years from 1849 to 1858, no report for 1853
being rendered by the Attorney-General, there were 32 trials for abortion
in Massachusetts; and in these there was not a single conviction.[79]
An estimate that for every arrest for this crime, a thousand instances
of its commission escape the vigilance or at least the hand of the law,
would probably be within the truth. That such is the fact, is shown by
the statistics of France, where, from 1846 to 1850, out of 188 cases that
came to the knowledge of the police, for lack of decisive evidence, only
22 went to trial,[80] or about one-ninth of those legally investigated.
From 1826 to 1853, there were in France 183 trials for abortion. At the
above ratio this will give about 1700 cases judicially examined, a yearly
average throughout the empire of between 50 and 60. Comparing this fact
with the statistics of the Morgue already given, and with those of the
actual decrease of the rate of increase of the population in Paris and
in New York, and the increase of premature births, our statement of its
frequency will not seem exaggerated.
The number and success of professed abortionists is notorious. If
arrested, they are always ready with bribes or abundant bail. Hardly
a newspaper throughout the land that does not contain their open and
pointed advertisements, or a drug-store whose shelves are not crowded
with their nostrums, publicly and unblushingly displayed: the supply
of an article presupposes its demand. From these facts we may fairly
estimate the extent of their nefarious traffic.
That families are seldom now found of the size formerly common, is also
a matter of general remark. It were foolish to attempt to explain this
by supposing that the present is an age of more moderate desire, or less
unbridled lust; there is too much collateral proof against any such plea.
Nor is it reasonable to think that women are generally becoming less
productive of offspring than formerly, from any natural cause; or that
the mass of our population, whatever the exceptions, are already so far
advanced in knowledge, physiological or mechanical, or in practice, as
in most cases to be able to regulate impregnation at will. The number
of pregnancies must be nearly as abundant as ever; who can doubt what
becomes of the offspring? We deny, simply and decidedly, the statement
of some writers, that of every seven pregnancies, at least one always
_naturally_ terminates in abortion; this is uncorroborated by any
reliable evidence, and is without doubt untrue.
Of the experience of physicians, there can be but one opinion. If each
man of the profession were honestly to investigate this matter, and as
honestly to avow the result, the mass of evidence would be overwhelming.
This statement is in nowise invalidated by the experience alleged by
many, especially among older practitioners; their evidence, based chiefly
on lack of inquisition, or on the acknowledged less prevalence of the
crime in former years, is merely negative, and as such only to be valued.
“We blush,” says Prof. Hodge, “while we acknowledge the fact, that in
this city, (Philadelphia,) where literature, science, morality, and
Christianity are supposed to have so much influence; where all the
domestic and social virtues are reported as being in full and delightful
exercise, even here” it prevails.[81]
Dr. Blatchford, of Troy, N. Y., writes me thus: “A crime which forty
years ago, when I was a young practitioner, was of rare and secret
occurrence, has become frequent and bold.” But why multiply instances of
what must be the almost universal experience?
Applications for abortion are in many neighborhoods of constant
occurrence, by no means among the poorer classes alone; and few women,
unless also convinced by their physician of the enormity and guilt of
that they intend, are deterred by his refusal from going elsewhere for
aid, or from inducing abortion upon themselves.
But far greater proof than this we all possess, or can, if we desire.
In but few of the abortions criminally induced is an application ever
made to the physician in regular standing. He is oftener called upon
after the crime has already been committed, to treat its acute and
immediate effects. If he choose to take for granted in every case, that
it has occurred from a perfectly natural cause, even where attending
circumstances clearly point to the contrary, or to ask no questions,
or to shut his eyes and his ears to evident and patent facts, he can of
course do so, and perhaps persuade himself that the crime is rare; but if
he reflect that upon himself more than on clergyman or legislator, often
rests the standard of public morals, and act accordingly, he may arrive
at a different result.
But this is not only the fact in acute cases of abortion. The same
statement holds true, perhaps even to a greater extent, with regard to
chronic obstetric disease. It is now acknowledged that much of this is
really the consequence of past difficult or abnormal labors; that the
more complicated or improperly interfered with the labor has been, the
more certain are unfortunate sequelæ; and that the earlier in pregnancy
its occurrence, the greater, as a general rule, the danger, not merely
to the mother’s life, but to her subsequent health. In the treatment of
these results, even more marked perhaps at a late period than earlier,
the dependence of effect on cause, and their evident connection, can
often be learned by a faithful inquirer, and in no small proportion of
cases does the history go back without turn or the shadow of a doubt, to
an induction of criminal abortion.
As a mere matter of individual experience, and from a practice by no
means exceptional, the writer some time since reported no less than
fifteen such cases as occurring to himself within hardly six months; and
of these, all without exception were married and respectable women,[82]
many of them of wealth and high social standing; and subsequently he
was able, in consultation, to point out similar cases in the practice
of gentlemen who, at that time, had denied the legitimacy of his
conclusions. This experience must be a common one, only some lack the
courage, as others lack the will, to investigate the matter; should they
do so, they can come but to one result.
The frequency of maternal deaths, confessedly from criminal abortion,
as gathered from published statements and mortuary reports, is also an
item of importance in our summary of evidence. It is probable that in
but few of the fatal cases really occurring, is foul play ever thought
of, especially if the standing of the victim, and her previous history,
have been such as to prevent or disarm suspicion; and on the other
hand, while immediate death is undoubtedly a frequent result of induced
abortion, it is, in proportion to the cases of its later occurrence, or
of confirmed and chronic ill health, comparatively rare. From which it
must be granted, that for every case thus made known, very many others
must necessarily exist.
We are compelled, from the preceding considerations, to acknowledge not
merely that criminal abortion is of alarming frequency among us, but that
its frequency is rapidly increasing; this having been made apparent by
each link in the chain of evidence that has been presented. Every effort
that might possibly check this flood of guilt will, if delayed, have so
much the more to accomplish. The crime is fast becoming, if it has not
already become, an established custom, less honored in the breach than in
the observance.
* * * * *
What are the causes of this general turpitude?
They also may be classified—
I.—The low _morale_ of the community as regards the guilt of
the crime.
II.—The ease with which its character, in individual cases, may
be concealed.
III.—The unwillingness of its victims to give testimony that
would also criminate themselves.
IV.—The possibility of their inducing abortion upon themselves
without aid.
V.—The ease with which the laws, as at present standing, may
be evaded.
VI.—The lack or inefficacy of judicial preventives; such as
statutes for registration, and those against concealment
of birth and secret burials.
VII.—The prevalent ignorance of the true principles of its
jurisprudence in both government officials and medical
witnesses.
VIII.—Social extravagance and dissipation.
IX.—The doctrines of political economists.
X.—The fear of child-bed.
* * * * *
That public opinion should at present attach so little importance to the
value of fœtal life, has already been shown to be owing in great measure
to ignorance respecting its actual existence in the earlier months of
pregnancy. Two other, and no less general, physiological errors prevail,
extensively inculcated by popular authors and lecturers for their own
sinister purposes.
One of these is the doctrine that it is detrimental to a woman’s
health to bear children beyond a certain number, or oftener than at
certain stated periods, and that any number of abortions are not merely
excusable, as preventives, but advisable; it being entirely forgotten
that the frequency of connection may be kept within bounds, and the times
of its occurrence regulated, by those who are not willing to hazard its
consequences; that if women will, to escape trouble or for fashion’s
sake, forego the duty and privilege of nursing, a law entailed upon
them by nature, and seldom neglected without disastrous results to their
own constitutions, they must expect more frequent impregnation; that the
habit of aborting is generally attended with the habit of more readily
conceiving; and that abortions, accidental, and still more if induced,
are generally attended by the loss of subsequent health, if not of life.
This error is one which would justify abortion as necessary for the
mother’s own good; a selfish plea. The other is based on a more generous
motive. It is that the fewer one’s children, the more healthy they are
likely to be, and the more worth to society. It is, however, equally
fallacious with the first, and is without foundation in fact. The
Spartans and Romans, so confidently appealed to, gave birth probably to
as many weakly children as do our own women; that they destroyed many
for this reason in infancy, is notorious. The brawny Highlanders are
not the only offspring of their parents; the others cannot endure the
national processes of hardening by exposure and diet, and so die young
from natural causes. But were this theory true even so far as it goes,
the world, our own country, could ill spare its frailer children, who
oftenest, perhaps, represent its intellect and its genius.
In asserting that the doctrines of the leading political economists for
the last half century are accountable for much of the prevalence and
increase of the crime, ignorant or careless as these writers all seem
of the dire means that would be resorted to for the attainment of their
ends, I have in no way exaggerated. Malthus remarks in his well-known
Essay on Population, that “in the average state of a well-peopled
territory, there cannot well be a worse sign than a large proportion of
births, nor can there well be a better sign than a small proportion;”[83]
and he endorses the assertion of Hume, subsequently proved false by
Sadler,[84] that the permission of child-murder, by removing the fear of
too numerous a family in case of marriage, tends to encourage this step,
and thereby the increase of population; “the powerful yearnings of nature
preventing parents from resorting to so cruel an expedient, except in
extreme cases.”[85]
Sismondi[86] and a host of others might also be quoted, but a few
extracts from a later writer, standard in this country at present, and
taught in our universities, till very lately in that at Cambridge, for
instance, will suffice.
“We greatly deprecate,” says Mill, “an increase of population, as rapid
as the increase of production and accumulation.”[87]
“There is room in the world, no doubt, and even in old countries, for
an immense increase of population. But although it may be innocuous, I
confess I see very little reason for desiring it.”
“I sincerely hope, for the sake of posterity, that they will be content
to be stationary long before necessity compels them to it.”[88]
“If the opinion were once generally established among the laboring
class, that their welfare required a due regulation of the numbers of
their families, only those would exempt themselves from it who were in
the habit of making light of social obligations generally.”[89] “The
principles contended for include not only the laboring classes, but all
persons, except the few who being able to give their offspring the means
of independent support during the whole of life, do not leave them to
swell the competition for employment.”[90]
“When persons are once married, the idea never seems to enter any one’s
mind, that having or not having a family, or the number of which it shall
consist, is at all amenable to their own control. One would imagine that
it was really, as the common phrases have it, God’s will and not their
own, which decided the number of their offspring.”[91]
“In a place where there is no room left for new establishments,” says
Sismondi, entirely ignoring the escapes offered by emigration and the
increased importation of food, “if a man has eight children, he should
believe that unless six of them die in infancy, these, and three of
his own contemporaries of each sex, will be compelled to abstain from
marriage in consequence of his own imprudence.”[92]
The direct result of remarks like these last, so pointed and plainly to
be understood, is seen in the statistics I have so largely given. Would
mankind, in following such advice, merely resort to greater abstinence
before their means allow the expense of children, and to greater prudence
after that period, no fault could be found; but when we discover criminal
abortion thus justified and almost legitimated, we may well oppose to
such doctrine the words of the indeed admirable Percival, “To extinguish
the first spark of life is a crime of the same nature, both against our
Maker and society, as to destroy an infant, a child, or a man.”[93]
Fear of child-bed, in patients pregnant for the first time, or who
had suffered or risked much in previous labors, might formerly have
been allowed some weight in excuse, but none at all in these days of
anæsthesia. It has been urged, and not so absurdly as would at first
sight appear, that the present possibilities of painless and so much
safer delivery, by changing thus completely the primal curse, from
anguish to a state frequently of positive pleasure, remove a drawback of
actual advantage, and by offering too many inducements for pregnancy,
tend to keep women in that state the greater part of their menstrual
lives.
* * * * *
The consideration in detail of the various other causes to which I have
alluded as accounting for the prevalence of abortion, together with that
of the many special reasons offered in individual cases by way of excuse,
I postpone for the present; merely premising that where ignorance is
so evidently and so extensively its foundation, those who, possessing,
yet withhold the knowledge which by any chance or in any way would
tend to prevent it, themselves become, directly, and in a moral sense,
responsibly accountable for the crime.
III. ITS VICTIMS.
We have hitherto discussed abortion in the abstract, as a crime, and in
its relations to the community at large. We have seen its heinous nature,
and its awful extent.[94]
The division of the subject now to be examined naturally presents itself
under a fourfold aspect, numerical, relational, social, and medical;
representing respectively the multitude of the victims of abortion, their
character as parent and child, their standing in the community, and the
degree, whether unto death or otherwise, of their suffering.
So far as statistics will at present allow, the numerical relations of
the victims of abortion have already been fully discussed, the yearly
thousands of fœtal and the frequent maternal deaths; one sacrifice at
least, that of the child, being implied in every case.
Various incidental questions suggest themselves in this connection,
curious, and by some, though erroneously, thought to be of judicial
importance. Two of them will be here adverted to; they are the age or
the mother and that of the fœtus.
It was formerly supposed, as in infanticide, that criminal abortion was
seldom resorted to save for the concealment of shame; and as seductions,
confessedly frequent in comparison with adultery, are most common in
youth, it was laid down as probable that wilful abortions are most
frequent between the years corresponding, from sixteen to twenty-five.
Subsequent experience, however, has disproved this conclusion, and it is
evident that the only real limit to its later occurrence is the menstrual
climacteric. In many instances of marriage, abortions are resorted to at
once, in others after the family has reached a certain point, and are
thence regularly continued.
The age of the fœtus is of much more interest; not, as will ultimately
appear, for the same reason as in cases of infanticide, but as proving to
a certain extent one of the facts we have already considered, the error
prevalent regarding the commencement of fœtal life.
It was Orfila’s opinion that criminal abortion was most frequent in the
two first months of pregnancy. This would naturally have been supposed
the case, as then some doubt might always obtain regarding its existence,
and the excuse that the measures resorted to were for the purpose of
preventing ill effect from an abnormal menstrual suppression would be
more available. Devergie, on the other hand, was inclined to put the
limits of greatest frequency at from three months to four and a half;
while Briand and Chaudé thought the crime more common in the third month
than the fifth, and in this last month much more frequent than even in
the first or second. Tardieu also came to a similar conclusion.[95] He
ascertained, that of 34 cases investigated by himself, 25 were in from
the third to the sixth month, most in the third; 5 in the first two
months; 4 in the seventh and eighth; or that the cases in the third
month, or shortly after, were five times as numerous as at either an
earlier or a later period, and nearly three times as numerous as in both
combined.
Upon examining the Register of the Morgue, we find its statistics
strikingly corroborative of these deductions. We have already seen that
from 1837-54 there had been deposited at the Morgue 692 fœtuses of less
than nine months. Of these,
23 were from the first to the second month;
79 ” ” second to the third;
108 ” ” third to the fourth;
158 ” ” fourth to the fifth;
150 ” ” fifth to the sixth;
97 ” ” sixth to the seventh;
48 ” ” seventh to the eighth;
29 ” ” eighth to the ninth.
It has been stated that 519, or five-sixths of them all, were not over
six months, and it now appears that on a scale twenty times larger
than that given by Tardieu from his own experience, nearly two-thirds
of the fœtal deaths induced by abortion were in from the third to the
sixth month of pregnancy; the three periods included giving a much
larger proportion than any others, and the two last of them being almost
identical. The extreme paucity shown by the above table in the first
and ninth months, and the decrease in the seventh and eighth from those
preceding, are worthy of remark. It is probable that the sudden increase
may be attributed to mental reaction after the first shock occasioned
by the absolute certainty of pregnancy is past; and the subsequent
decrease to the fact that in many attempted criminal abortions during the
later months children are born alive, the mother’s courage then proving
insufficient for infanticide and its greater and more probable punishment.
The truth seems to be that while frequently the crime is committed in
the very earliest period of pregnancy, in the belief that possibly all
alarm may be false, in most cases the woman waits a month or two to be
sure that she really is pregnant. After the sixth month the comparative
rarity of the crime is undoubtedly owing to the fact that fœtal life is
then rendered certain by the perceived movements of the child, the more
strongly as pregnancy advances.
It was formerly thought that the induction of criminal abortion was
confined to the unmarried alone; there exists, however, abundant proof
to the contrary. Had such been the fact it would be reasonable to
suppose that with the increase of marriages, the number of premature
and still-births would have lessened. In proportion, however, as the
number of marriages has increased, so has the number of fœtal deaths,
and in similar ratio the number of living births has declined; proving,
as Husson was compelled to acknowledge of Paris, “a decrease in the
fecundity of legitimate unions,”[96] explainable in nowise but by a
criminal cause. Direct statistics on this point are still wanting, and
must come, almost entirely, from medical men. The writer’s published
experience has been already referred to; subsequent practice has only
confirmed it.
Again, the victims of abortion are not confined to the inhabitants of
cities. Of the prosecutions in France during 1851-53, it appears that but
little more than a tenth of the whole number occurred in the Department
of Seine.[97] But we have already furnished much stronger evidence on
this point.
Finally, though the excessive extravagance of the day, entailing as it
does to so many an annual expenditure incommensurate with their income,
is accountable in no small degree for the crime, yet it cannot always be
alleged. There is too much reason to believe that with our communities
it is as with others. In France it appears that the poor and uneducated
have on the whole the largest families, contrary in some respects to
established hygienic rules; while, on the other hand, the rich are
inclined as far as possible to restrict the number of their children,
often indeed stipulating beforehand, at marriage or previously, that such
shall be few or none.[98]
But not only must we believe that this crime prevails in our midst
to an almost incredible extent among the wealthy and educated and
married; we are compelled to admit that Christianity itself, or at least
Protestantism, has failed to check the increase of criminal abortion. It
is not astonishing to find that the crime was known in ancient times, as
shown by evidence previously given, nor that it exists at the present
day among savage tribes, excused by ignorance and superstition; but that
Christian communities should especially be found to tolerate and to
practice it, does almost exceed belief.
In the previous remarks, the French have been compared with our own
people, not merely because of their published statistics, but because
from their loose morals and habits of life they might be thought to
represent the extreme to which the crime would be likely to obtain among
civilized nations. We have shown reason to suppose that we equal them
in guilt, if we do not exceed them. Now it must be borne in mind that
the French are Catholic; that the rules of that church do not, as has
been generally supposed, permit abortion in the earlier months,[99] but
that they rigidly exercise over fœtal life throughout pregnancy the
most absolute guard and supervision;[100] instances of this in cases
where craniotomy is supposed to be indicated, are familiar to every
practitioner. The church, here omnipotent against the physician, and
desiring that every created human being should receive the benefit of
baptism, demands that fœtal death must have taken place previously to
the operation proposed. It does not seek for the signs of fœtal life,
but takes this for granted, and requires that its absence must be proved
before allowing the removal of the child, even though this is necessary
to save the mother’s life.
The rule runs thus: “Sedulam operam dent sacerdotes, ut quantum poterunt,
impediant nefandum illud scelus quo adhibitis chirurgicis instrumentis
infans in utero interficitur. Omnis fœtus quocumque tempore gestationis
editus baptizetur, vel absolute, si constet de vitâ; vel sub conditione,
nisi evidenter pateat eum vitâ carere.”[101]
In cases where instrumental delivery is absolutely necessary, the
ceremony of baptism as ordinarily administered is of course impossible.
But as this is deemed so important by the Catholic Church,[102] even to
the sacrifice of the mother, any means of overcoming this obstacle, fatal
to countless maternal lives, should be accounted, if found practicable,
of the utmost importance. For this purpose, therefore, I do not hesitate
to recommend intra-uterine baptism, the consecrated element being carried
to the child, if too high to be reached by the hand, by a sponge and
staff, or if necessary, by a syringe, as was long ago sanctioned by the
theologists of the Sorbonne;[103] in the absence of a clergyman, if the
case is urgent, the rite accounted so sacred being performed by the
physician in attendance rather than to allow the death of the mother. I
know that many of the profession, from fear of ridicule or dislike to
sanction what they do not believe in, would shrink from such a duty. Is
it not, however, due to humanity in every way to prevent this frequent
murder? for such, by our apathy and neglect, the mother’s death in these
cases becomes. Can we, as Christians, refuse _any_ aid? I am not ashamed
to acknowledge that for myself, though no Catholic, I have performed this
intra-uterine baptism, where delivery without mutilation was impossible.
I could neither conscientiously assert the child’s death, nor allow the
mother to linger till it should occur, while the friends, in the absence
of a priest, whose presence it was impossible to procure for many hours,
would not permit the operation. Remonstrance was useless; had I refused I
should have been morally responsible for the almost inevitable death of
the woman; it was, therefore, simply my duty.
I shall now quote from an admirable letter I have lately received from
the Catholic Bishop of Boston. The extracts are couched in so forcible
language, and their spirit is so thoroughly Christian, that I need not
apologize for their length, or that they recapitulate arguments I have
already advanced.
“The doctrine of the Catholic Church,” remarks Bishop Fitzpatrick, “her
canons, her pontifical constitutions, her theologians without exception,
teach, and constantly have taught, that the destruction of the human
fœtus in the womb of the mother, _at any period from the first instant
of conception_, is a heinous crime, equal, at least, in guilt to that
of murder. We find it distinctly condemned as such even as far back as
the time of Tertullian, (at the end of the second century,) who calls
it _festinatio homicidii_, a hastening of murder. The Pope, Sixtus the
Fifth, in a bull published in 1588, subjects those guilty of the crime to
all the penalties, civil and ecclesiastical, inflicted on murderers. It
is denounced and reprobated in many other canons of the church.
“The reason of this doctrine (apart from the authority of the church)
must, it seems to me, appear evident upon a little reflection. The very
instant conception has taken place, there lies the vital germ of a man.
True, it is hidden in the darkness of the womb, and it is helpless;
but it has sacred rights, founded in God’s law, so much the more to be
respected because it is helpless. It may be already a living man, for
neither mothers nor physicians can tell when life is infused; they can
only tell when its presence is manifested, and there is a wide difference
between these two things. At any rate, it is from the first moment
potentially and _in radice_ a man, with a body and a soul destined most
surely by the will of the Creator and by his law, to be developed into
the fullness of human existence. No one can prevent that development
without resisting and annulling one of the most sacred and important laws
established by the Divine Author of the universe, and he is a criminal,
a murderer, who deals an exterminating blow to that incipient man, and
drives back into nothingness a being to whom God designed to give a
living body and an immortal soul.
“From this it follows that the young woman whose virtue has proved an
insufficient guardian to her honor, when she seeks by abortion to save in
the eyes of man that honor she has forfeited, incurs the additional and
deeper guilt of murder in the eyes of God, the judge of the living and
the dead. Who can express what follows with regard to those women, who,
finding themselves lawfully mothers, prefer to devastate with poison or
with steel their wombs, rather than bear the discomforts attached to the
privilege of maternity, rather than forego the gaieties of a winter’s
balls, parties, and plays, or the pleasures of a summer’s trips and
amusements?
“But abortion,” the Bishop continues, “besides being a direct crime
against a positive law of God, is also an indirect crime against society.
Admit its practice, and you throw open a way for the most unbridled
licentiousness, you make woman a mere instrument for beastly lust. Every
woman is somebody’s mother or daughter or sister or wife; or she bears
all these relations at once. Whatever protection, therefore, we would
claim for a woman because she stands in any of these relations to us,
we should also extend to all women, because they bear some one of all
these relations to others. Most assuredly, then, we should remove none
of the safeguards that protect female virtue. But if we take away the
responsibility of maternity, we destroy one of its strongest bulwarks.
“It affords me pleasure,” he concludes, “to learn that the American
Medical Association has turned its attention to the prevention of
criminal abortion, a sin so directly opposed to the first laws of nature,
and to the designs of God, our Creator, that it cannot fail to draw down
a curse upon the land where it is generally practiced.”[104]
Such being the doctrine of the Catholic Church, and statistics
nevertheless proving that its so stringent statutes against the
destruction of fœtal life, enforced alike by denouncement and
excommunication, are constantly broken in Catholic France, it is more
than probable, from the existence of this fact, in addition to all the
various causes of the crime we have seen equally prevailing there and
in this country, that the actual number of abortions is much greater
with ourselves; at least with the American and native portion of
our population. We have indeed shown that this is really the case in
Massachusetts.[105]
Viewing this subject in a medical light, we find that death, however
frequent, is by no means the most common or the worst result of the
attempts at criminal abortion. This statement applies not to the mother
alone, but, in a degree, to the child.
We shall perceive that many of the measures resorted to are by no means
certain of success, often indeed decidedly inefficacious in causing the
immediate expulsion of the fœtus from the womb; though almost always
producing more or less severe local or general injury to the mother, and
often, directly or by sympathy, to the child.
The membranes or placenta may be but partially detached, and the ovum
may be retained. This does not necessarily occasion degeneration, as
into a mole or hydatids, or entire arrest of development. The latter
may be partial, as under many forms, from some cause or another, does
constantly occur; if from an unsuccessful attempt at abortion, would
this be confessed, or indeed always suggest itself to the mother’s own
mind? Fractures of the fœtal limbs prior to birth are often reported,
unattributable in any way to the funis, which may amputate indeed, but
seldom break a limb. A fall, or a blow, is recollected; perhaps it was
accidental, perhaps not, for resort to these for criminal purposes is
very common. In precisely the same manner may injury be occasioned to
the nervous system of the fœtus, as in a hydrocephalic case long under
the writer’s own observation, where the cause and effect were plainly
evident. Intra-uterine convulsions have been reported; as induced by
external violence they are probably not uncommon, and the disease thus
begun may eventuate in epilepsy, paralysis, or idiocy.
To the mother there may happen correspondingly frequent and serious
results. Not alone death, immediate or subsequent, may occur, from
metritis, hemorrhage, peritonitic or phlebitic inflammation, from
almost every cause possibly attending not merely labor at the full
period, comparatively safe, but miscarriage,—increased and multiplied by
ignorance, by wounds and violence; but if life still remain, it is too
often rendered worse than death.
The results of abortion from natural causes, as obstetric disease,
separate or in common, of mother, fœtus or membranes, or from a morbid
habit consequent on its repetition, are much worse than those following
the average of labors at the full period. If the abortion be from
accident, from external violence, mental shock, great constitutional
disturbance from disease or poison, or even necessarily induced by the
skilful physician in early pregnancy, the risks are worse. But if, taking
into account the patient’s constitution, her previous health and the
period of gestation, the abortion has been criminal, these risks are
infinitely increased.[106] Those who escape them are few.
In thirty-four cases of criminal abortion reported by Tardieu, where
the history was known, twenty-two were followed, as a consequence, by
death, and only twelve were not. In fifteen cases necessarily induced by
physicians, not one was fatal.[107]
It is a mistake to suppose, with Devergie, that death must be
immediate, and owing only to the causes just mentioned. The rapidity
of death, even where directly the consequence, greatly varies; though
generally taking place almost at once if there be hemorrhage, it may
be delayed even for hours where there has been great laceration of the
uterus, its surrounding tissues, and even of the intestines;[108] if
metro-peritonitis ensue, the patient may survive for from one to four
days, even indeed to seven and ten. But there are other fatal cases,
where on autopsy there is revealed no appreciable lesion; death, the
penalty of unwarrantably interfering with nature, being occasioned by
syncope, by excess of pain, or by moral shock from the thought of the
crime.[109]
That abortions, even when criminally induced, may sometimes be safely
borne by the system, is of little avail to disprove the evidence of
numberless cases to the contrary. We have instanced death. Pelvic
cellulitis, on the other hand; fistulæ, vesical, uterine, or between
the organs alluded to; adhesions of the os or vagina, rendering liable
subsequent rupture of the womb, during labor or from retained menses, or,
in the latter case, discharge of the secretion through a Fallopian tube
and consequent peritonitis; diseases and degenerations, inflammatory or
malignant, of both uterus and ovary; of this long and fearful list, each,
too frequently incurable, may be the direct and evident consequence, to
one patient or another, of an intentional and unjustifiable abortion.
We have seen that in some instances the thought of the crime, coming upon
the mind at a time when the physical system is weak and prostrated, is
sufficient to occasion death. The same tremendous idea, so laden with
the consciousness of guilt against God, humanity, and even mere natural
instinct, is undoubtedly able, where not affecting life, to produce
insanity. This it may do either by its first and sudden occurrence
to the mind; or, subsequently, by those long and unavailing regrets,
that remorse, if conscience exist, is sure to bring. Were we wrong in
considering death the preferable alternative?
IV. ITS PROOFS.
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.
1. _The Occurrence._
The abortion may perhaps be known to have taken place by confession or
witness; in either case requiring no further demonstration. Instances are
not rare, however, where suspicion merely may exist, and the fact must be
proved by collateral testimony; and this in two cases, where the woman is
still alive, and where she is dead.
The general history of the case, even if pregnancy and delivery be
equally denied, may throw some light on its true nature. This as given,
no matter how affected by the evidence of interested or implicated
witnesses, may be probable or improbable; as in an instance related by
Burns,[111] where her sudden lessening in bulk was ascribed by a patient
to a night’s profuse sweating, of course an impossible result. But, on
the other hand, care is necessary lest from its rarity of occurrence or
its improbability, the reality should be disbelieved. Cases are on record
where innocent women, suffering from retention of menses or from ovarian
disease, and suddenly relieved by a critical and spontaneous discharge,
have on suspicion of abortion lost character and even their lives. If
the statements contradict each other, this fact of itself may reveal the
truth.
There are at times difficulties in proving delivery at the full period
of pregnancy, as is well known. The earlier in gestation, if the patient
survive, the more these difficulties are enhanced. The occurrence of
normal labor cannot be discovered with any certainty by a personal
examination after eight days have elapsed,[112] those of an early
abortion not even after only one or two.[113] The signs of delivery that
are well marked at the full period, the general symptoms then obtaining,
the size of the uterus, ascertained by the hand and sound, lacerations of
the perineum and cervix, the lochia, the state of the breasts, abdomen,
vagina, and vulva, all of little value except in conjunction with each
other, are proportionately less defined as we go back, until near the
commencement of pregnancy it becomes impossible to distinguish the
abortion from severe hemorrhage or from menorrhagia, unless by detecting
the impregnated ovum.
If the patient is dead, and too long time have not elapsed since the
supposed occurrence, decision is often more easy; many facts in the
case being generally known, and concealment being less possible. If
the ovum, but partially detached, be still retained, the fact is
self-evident; if it has been discharged, and concealed or lost, there
will still be present the recent corpus luteum and other well-known
signs, in proportion to the period of the pregnancy. Allowance, in this
latter respect, must be made for the possibility of partial uterine
contraction after death, as is sometimes known to occur at the full
period;[114] the writer has seen it to a marked degree some time previous
to the expiration of pregnancy, at a Cæsarean section after death from
laryngitis, occurring in the Edinburgh Maternity Hospital.
2. _The Commission._
Allowing the fact of the occurrence of an abortion to be proved or
granted, it becomes necessary to discover its cause, whether accidental,
natural, or intentional. Of this it will be found that the proofs are
both positive and negative; drawn from the history of the case and from
personal examination of the patient and the fœtus. The value of each of
these elements is increased in proportion as it is compared with the
other; but “this I wish most especially to have noted, that WHEREVER
THERE IS A MISCARRIAGE, THERE IS ALWAYS PRESENT SOME ACTUAL, PERCEPTIBLE,
AND OFTEN TANGIBLE CAUSE.”[115]
The story of the patient may be to one effect, and that of other parties
involved, to a very different one; if the first is corroborated by the
second, it may again, as has already been remarked, present or not the
likelihood of truth. If the habit of aborting at a certain period has
existed, which of course cannot be alleged in a first pregnancy, if
the patient has had sudden fright or grief, or is known to have been
accidentally injured, the chances are to be considered in her favor, in
the absence of proof to the contrary. The converse of this statement,
however, must not be considered as always and necessarily true. Women
have time and again suffered shipwreck, undergone torture, been thrown
from a height, and otherwise severely injured, and yet have escaped
miscarriage; while, on the other hand, they may repeatedly have aborted
before, and yet passing safely their usually critical point, may without
trouble go on to the full period. In still other cases there may exist
local disease, pelvic or uterine, which, if left alone, would of itself
occasion miscarriage.
The character of the abortion is not without its value, whether occurring
suddenly and without apparent cause, or preceded by maternal disease or
the signs of fœtal death.
Examination of the mother, though proof that she has herself been
injured is not necessary to establish the crime, may reveal local wounds
and mutilations; or their absence, which, however, by no means goes
to prove that violence may not have been inflicted; and, on the other
hand, as in a case lately reported by the writer to the Boston Society
for Medical Observation, traces of former violence in instrumental or
other labors may remain, and to such an extent as to give to the touch
every character of a recent and criminal interference.[116] The fœtus
may show pre-existing and natural disease sufficient to account for
the effect apparent, or may present the signs of direct and intentional
interference. Recent scars of venesection on the arms and feet, and of
leech-bites, especially on the upper and inner parts of the thighs, are
suspicious in a patient who has aborted, unless they were evidently
required by the state of her previous health. If signs of irritant
injections into the vagina are present, they are ground for more than
suspicion.
The instrument, where used, with which the operation has been performed,
may sometimes be identified; though this is almost impossible unless
by confession or direct testimony. The weapons resorted to by the
unprofessional are various; knitting kneedles, pen handles, skewers,
goose quills, pieces of whale-bone, and even curtain rods, are among the
number. The finger alone, except where the uterus is prolapsed or can
be depressed, and the os is very soft and patulous, is seldom if ever
sufficient for the deed. If a physician be accused, it is important to
notice with what instrument the crime is said to have been performed, if
before witnesses, and whether it was introduced openly or under pretence
of a digital examination.
The sensations of the patient at the time, are also in different cases
unlike each other. In some instances nothing unusual is observed, in
others a prick or probing, but in most an acute and tearing uterine pain,
often followed by syncope or an hysterical attack. Slight but immediate
hemorrhage generally occurs, save in professional cases, increased by
compelled exercise, prolonged baths or ergot.
The time ensuing before the expulsion of the fœtus is an element not to
be lost sight of. In 34 cases reported by Orfila, the minimum observed
was 13½ hours, the maximum 6 days; in 36 cases by Tardieu, the minimum
was 5 hours, the maximum 11 days. Of these last cases, however, 29 were
within 4 days.
It cannot be alleged in excuse that the sex of the child, so fatal in
advanced pregnancy, has any influence in producing early abortion. In 293
premature still-births reported by Collins,[117] 146 were male and 147
female, bearing the proportion of 100 to 100. Nor can the plea of Drs.
Gordon Smith, Good, Paris, and Copeland, that as a fœtus born before the
seventh month has a slender chance of surviving, its murder should be
viewed with leniency,[118] be allowed. Such arguments, that the perils
and dangers to which the fœtus is naturally subjected should lessen the
criminality of attempts at its destruction, are without foundation, and
when advanced by physicians are utterly unworthy the profession.
3. _The Intent._
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.
4. _The Identity of the Party Accused._
Most of the points here involved having already been incidentally
considered, we will not repeat them. The circumstances and history of the
case, the relative correspondence of different testimony, the allegations
of the accused, will all bear directly upon the question at issue.
In trials for abortion, of all others, the medical witness and the
advocate should bear in mind their liability to error; the juror and the
judge the fact that innocent persons are at times wrongly accused, often
by the true criminals themselves.
* * * * *
In defence, it must either be pleaded that the alleged abortion did not
occur, that it was accidental or natural, that it was necessitated, or
that it was induced by another than the individual charged.
The first of these pleas is seldom offered except in the earliest months
of pregnancy, and would be invalid if an attempt at the abortion could
be proved. In default of this, however, where the ovum has been lost,
or has passed unnoticed, the fact that the sanguineous effusion was
hemorrhagic and attended with clots, would, in the absence of any uterine
disease sufficient to account for this, be so far presumptive evidence;
to be corroborated or not by the history of the case. Moles and hydatids
are now generally allowed to be mere transformations of the product of
conception; their premature discharge, therefore, equally an abortion.
In answer to the second plea, the importance of several points must
be borne in mind. It has been well put by Tardieu that it is wrong to
commence, as advised by most authorities on the subject, by enumerating
all the natural and accidental causes liable to have produced the
abortion. On the contrary, the signs and proofs of criminal violence
should first be sought, and these compared with the allegations of
witnesses and the possibility of a natural or accidental origin. The
traces of falls, contusions, and wounds must be found, not believed on
mere allegation; coincidences must be guarded against, equally with
untruth.
We have already laid down rules here available; that the state of the
fœtus often affords proof of the cause of its expulsion, this being slow
and natural, and depending on disease and predisposition, or not; that in
flagrant malpractice, the use of alleged specifics, or of measures likely
to produce direct miscarriage, or otherwise absolutely counter-indicated
by the general health and constitution of the patient, a contradiction
exists to the plea offered, in itself strong presumptive evidence
of criminal intent; and that in certain cases this evidence becomes
positive, as where, for instance, a sponge found or proved to have been
inserted into the os uteri as a dilating tent, is alleged to have been
intended as a mere pessary and placed in the vagina.
If the accused be a physician, presumed as he should be, acquainted
with the great principles of practice, his only plea can be, where the
means used were unjustifiable and proved such, and where the pregnancy
was known to others, that he was ignorant of its existence. Liable as
the profession are at any time to this charge, and easy as it is in
almost every case, especially of instrumental procedure, for us to take
such preliminary measures as would be likely to settle the question of
the existence of pregnancy, or to request the presence of a witness
to our act, it is unjust to ourselves and to each other to omit these
precautions.
But if, on the other hand, the charge be utterly unfounded, it is
probable, as I have already remarked, that contradictions in the
testimony or the alleged facts could always be shown to exist, and the
perjury thus exposed. It would be self-evident, were the accused proved
to have been first consulted after the abortion had terminated, though
not if it had only commenced.
V. ITS PERPETRATORS.
It is interesting, and at the same time of judicial importance to
ascertain, so far as possible, the standing and character of the
perpetrators of this crime.
In the first place, French statistics on the large scale show that the
number of criminals, principals and accomplices, in that country at
least, is in large excess to the instances of the crime, there having
been in 183 trials, from 1826 to 1853, not merely 417 parties accused,
but 213 convicted; and that in 75 per cent. of the prosecutions and
convictions occurring, where the abortion is not induced by the mother
herself, the offenders are women.[130] With us the same statement is,
without doubt, equally true.
The part played by the mother, herself so often a victim, is almost
always that of a principal, yet as laws now stand, she can scarcely ever
be reached. The cases where she is under duress, by threat of other
personal violence from her husband or seducer, and thus compelled to
submit to abortion, or where the act is performed by his direction but
without her knowledge, are so rare, that in a general statement they
may be assumed not to exist. If the mother does not herself induce the
abortion, she seeks it, or aids it, or consents to it, and is, therefore,
whether ever seeming justified or not, fully accountable as a principal.
We have already seen the position these mothers hold in the community,
high as well as low, rich as well as poor, intelligent and educated as
well as ignorant, professedly religious as well as of easy belief, not
single alone, but married.
We turn now to their partners in guilt, more criminal than themselves;
for whatever excuse the latter may suppose themselves to possess, the
former can have none.
The accomplices in criminal abortion are of several classes,
distinguishable in some respects from each other, especially by the
relative frequency with which their part is played. They are:
Of women, I.—Friends and acquaintance.
II.—Nurses.
III.—Midwives and female physicians.
Of men, IV.—Husbands.
V.—Quacks and professed abortionists.
VI.—Druggists.
VII.—And worst of all, though fortunately extremely
rare, physicians in regular standing.
In many cases, such at least is judged by the writer from his own
observation, the abortion is not merely advised, but induced by some
female _friend_, especially by one who has herself undergone, in her own
person, the crime; perhaps without appreciable evil result,—but this
is not necessarily the case, for even where such result is present and
plainly in consequence, its connection with the true cause is frequently
unsuspected or disbelieved.
It has been said that misery loves companionship; this is nowhere
more manifest than in the histories of criminal abortion. In more
than one instance, from my own experience, has a lady of acknowledged
respectability, who had herself suffered abortion, induced it upon
several of her friends, thus perhaps endeavoring to persuade an uneasy
conscience that by making an act common, it becomes right. Such ladies
boast to each other of the impunity with which they have aborted, as they
do of their expenditures, of their dress, of their success in society.
There is a fashion in this, as in all other female customs, good and bad.
The wretch whose account with the Almighty is heaviest with guilt, too
often becomes a heroine. So true is the case, that the woman who dares at
the present day publicly or privately to acknowledge it the holiest duty
of her sex to bring forth living children, “that first, highest, and in
earlier times almost universal lot,”[131] is worthy, and should receive,
the highest admiration and praise.
The ease with which an accomplice is procured, provided the idea
originates with the victim herself, and is not suggested by another,
is found among _nurses_ to be greatly increased. We separate them
as a class from midwives and female physicians, with whom, though in
this country not generally acknowledged or thought identical, they not
unfrequently aim to be confounded. They are usually, and rightly, thought
more familiar with the laws of health and disease, than the generality
of their sex; they are, if doing their duty in his sight, seen to be
treated with respect by the physician; they are commonly of mature age,
supposed discreet, wise, and to keep their own counsel; they have had
opportunities of gaining the confidence of the mother; many of them
have themselves borne families. They are therefore approached with less
hesitation, and are not always found proof against an offered fee.
What we have said of nurses applies with increased pertinency to _female
physicians_ and _midwives_. These make it their claim, in rivalry of
the male physician, that their schools and their practice are, like
his, founded on those abroad, especially of Paris. Tardieu shows, in
a total of 32 cases occurring in that city and collected by himself,
that in 21—no less than 66 per cent., or two-thirds of the whole
number reported—the crime was perpetrated by midwives.[132] This class
frequently cause abortion openly and without disguise. They claim a
right to use instruments, and to decide on the necessity and consequent
justifiability of any operation they may perform. Where they establish
private hospitals, professedly for lying-in women or not, their chances,
previously great, of committing this crime and infanticide with impunity,
become more than doubled. It has been found necessary in France for the
police to exercise rigid surveillance over these establishments. In one
instance, occurring at Grenoble, it was proved that within three years
there had happened in the house thirty-one still-births at the full time,
or deaths just after birth, and that the abortions and miscarriages had
been almost innumerable.[133] In another case, to conceal the evidence
of these truly _corpora delicti_, and to evade the law against secret
burials, the midwife had established an understanding and a current
account with an undertaker, who was accustomed to smuggle her fœtuses
into his coffins, by the side of the corpses confided to him for burial.
In still other cases, the victims are kept on hand, preserved in jars;
private collections vieing in extent with those of legalized obstetric
museums.
By these remarks we would not be supposed endeavoring to excite prejudice
against female physicians and midwives, as such, or advocating their
suppression. We are now merely considering this crime of abortion, in
relation to which they are peculiarly and unfortunately situated. At
present everything favors their committing the crime; their relations to
women at large, their immunities in practice, the profit of this trade,
the difficulty, especially from the fact that they are women, of insuring
their conviction. Let better laws be enforced, and let public opinion be
enlightened concerning the guilt of abortion, and the influence for evil
of this class of offenders will in great measure be done away with.
Of male abortionists we have less to say. Their number is fewer abroad,
bearing the proportion, as we have seen, of but one to every four,
and their liability of being applied to, or consulted, is slight in
comparison.
_Husbands_, though generally knowing to the offence of their wives,
and often counselling it, probably but seldom attempt its commission
themselves; yet instances of this do undoubtedly occur. In but a
sixteenth of the cases reported by Tardieu, was any compulsory violence
exerted over women by their husbands.
_Druggists_ and _professed abortionists_ are accountable for the greater
number of the cases of the crime attributable to men. The latter class,
though proportionally rare, yet abound in every city, and take all means
of making themselves known. A knowledge of their alleged specifics,
against the use of which, “at certain times,” the public are “earnestly
cautioned,” etc. etc., is brought home to all our women, no matter how
purely minded, and despite every care to the contrary, through the medium
of the daily press; few papers, however professedly respectable or
religious, proving able to refuse the bribe.
Druggists, as a class, are little more than the confessed agents of these
villains. Even should they not directly recommend their nostrums, as,
however, is frequently the case, they almost universally keep them on
sale, labelled to catch the eye, and placarded on their walls. Like the
publishers and vendors of obscene literature, they conceive they are not
to blame for supplying a public demand, however much they themselves may
have done toward its creation.
And in this connection we must again allude to the guilt of the public
press, which has proved itself so constantly and so dangerously an
accessory to the crime. It would be thought that in Massachusetts, for
instance, a statute like the following might do something to check this
license:[134]
“Every person who shall knowingly advertise, print, publish, distribute,
or circulate, or knowingly cause to be advertised, printed, published,
distributed, or circulated, any pamphlet, printed paper, book, newspaper,
notice, advertisement, or reference, containing words or language, giving
or conveying any notice, hint, or reference to any person, or to the name
of any person, real or fictitious, from whom, or to any place, house,
shop, or office where any poison, drug, mixture, preparation, medicine
or noxious thing, or any instrument or means whatever, or any advice,
directions, information, or knowledge, may be obtained for the purpose of
causing or procuring the miscarriage of any woman pregnant with child,
shall be punished,” etc. etc.[135]
The above statute, however, such is the public sentiment on this point,
is not enforced, or is daily evaded. The press, if it choose, may almost
annihilate the crime; it now openly encourages it.
It has been often alleged, and oftener supposed, that _physicians in
good standing_ not unfrequently and without lawful justification, induce
criminal abortion. This statement, whatever exceptional cases may exist,
is wickedly false. The pledge against abortion, to the observance of
which Hippocrates compelled his followers by oath,[136] has ever been
considered binding, even more strongly of late centuries. The crime is
recognized as such in almost every code of medical ethics; its known
commission has always been followed by ignominious expulsion from medical
fellowships and fraternity. If this direct penalty be at any time
escaped, it is only through lack of decisive proof, bare suspicion even
of the crime insuring an actual sundering of all existing professional
friendships and ties; a loss that subsequent proof of innocence could
hardly restore. Such is the unanimous feeling of the profession; to its
credit be it said, that with but a single exception,[137] and this to his
eternal disgrace, its writers are all agreed, abstractly considering the
subject, on the sanctity of fœtal life. The instances where physicians
in good standing are guilty of the crime, are of rare occurrence; the
error that has prevailed on this point, originating from the self-assumed
titles of notorious quacks and knaves. But no condemnation can be too
strong for the physician who has thus forgotten his honor; who has
used to destroy life, that sacred knowledge by which he was pledged to
preserve it.
The criminal abuses likely to arise from the procurement of justifiable
abortion by medical men, are so numerous, their own liability to be
thought by the public criminally careless of fœtal life, or skeptical
concerning its existence, is so great, that the subject is worthy special
consideration. This I shall now devote to it.
VI. ITS INNOCENT ABETTORS.
We have referred to an apparent disregard of fœtal life, obtaining in the
medical profession, as a prominent cause of the prevalence of criminal
abortion. We now proceed to show that the opinion is not unfounded.
* * * * *
Premature labor, or obstetric abortion, may be justifiably induced by the
physician for one of two reasons; either to save the life of the mother
or that of her child. In each case it must be, absolutely and only, to
save a life.
* * * * *
Performed for the child’s sake, it is evident that the operation can
be only available during the last three months of pregnancy, for then
only can the fœtus with any degree of probability be considered viable.
We grant that there are a few cases on record where, born during the
sixth month and even in the fifth, the child has survived; but it is
equally certain, despite the popular notion concerning the mortality
of eighth-month children, that the later the operation can be safely
delayed, the better the chance for the infant’s life.
The rules for the induction of premature labor must, of course, vary
for different cases. In this early stage of the inquiry, it is perhaps
impossible to state them precisely, but they may still be approximately
arrived at.
1. The operation, performed for the child’s sake, is but seldom required;
and in general,
(2.) only after the commencement of the seventh month of pregnancy.
3. It must be clearly indicated; and
(4.) must be delayed as long as is consistent with the child’s safety.
5. Its means must be those which are most efficient, and safest for the
child.
We have already stated that the induction of abortion before the seventh
month, undertaken for the child’s sake, must be generally useless;
and therefore, as attended with some degree of danger to the mother,
generally unjustifiable. As the profession are nearly united on this
point, its further discussion is here unnecessary.
We have asserted that the cases where prematurely induced labor is
required for the child, are comparatively rare. We now add that while in
some respects they are more frequent, in others they are less so than is
generally supposed. To necessitate it, there must be disease or deformity
on the part of the mother, or disease on the part of the fœtus or its
appendages.
It is most frequently performed to avoid the alternative of craniotomy,
the necessity of which, unless extreme, can manifestly only be known
with certainty, before the expiration of pregnancy, from the experience
of past labors. But here too much caution cannot be exercised; the rules
of the books and of accepted authorities are not to be blindly followed.
Craniotomy at the full time is still too frequently performed:
Where it has been suggested by the character of a previous labor,
children are often, or might be, born living;
Where it seems indicated by direct exploration, as ruled even by recent
writers, children are sometimes, or might be, born living;
Where it was formerly thought absolutely essential, the progress of
obstetric science has now rendered it often unnecessary.
It is proper that we consider these points, for they bear directly on the
question at issue concerning criminal abortion.
It is known that the sex of children exercises an appreciable influence
upon the result of labors at the full time, as regards the possibility
of their passing alive, unaided or at all, through the pelvis, and as
regards the length of the labor, which also progressively endangers the
life of the mother and their own; the average female fœtus, in cases at
all difficult, having the advantage over the male by its inferiority in
size, especially important in the cranial diameters. It is unnecessary
for us to do more than refer to the facts by which these assumptions
are proved.[138] Where, therefore, craniotomy has been found necessary
in a former labor, the child then being male, in another labor a female
fœtus may often pass uninjured. However this argument may be lessened
in value by the impossibility of previously ascertaining the sex, it is
strengthened in the doctrine of chances, by the number of the labor and
the sex of the former children; and by the fact that first labors are
generally most difficult, whatever the sex of the child.
Furthermore, cases will suggest themselves to most practitioners of
experience, in which from difference in the character of the labor or
without apparent reason, children are born living at the full time,
males, of large size, and presenting by the vertex, where craniotomy
had previously, perhaps repeatedly, been performed. An instance of
this has occurred to the writer, where the patient had been advised to
early abortions from alleged physical incapacity of ever bearing living
children; he delivered her, without difficulty, of a large-sized and
living boy, at the full time.
Again, it may happen that in labor at the full period, craniotomy may
seem decidedly indicated and advisable, but for one reason or another
may not be performed, and yet the child, unaided, be born living. The
writer’s experience furnishes him with two illustrations of this class:
one of them occurred in 1851, the patient his own, Drs. S. sen., and
C., in consultation; the other was seen at Edinburgh, in 1854, in the
practice of his friend, Dr. G. W. In both cases, permission was refused
to operative procedures, the patients being Catholic, and the physicians
unable conscientiously to pronounce the fœtus already dead, while the
possibility of intra-uterine baptism was not recollected; in both
instances the children were born living, and without instrumental aid.
In other cases, where from deformity previously diagnosticated,
craniotomy is pronounced necessary if the patient should go her full
time, she may do so, the labor be unassisted, and the child yet escape
with its life. I instance a remarkable case for some time under my
own charge at the Boston Lying-in Hospital, delivered by one of my
colleagues, Dr. Dupee, and subsequently reported by Dr. Read.[139] The
pelvis was here equably contracted, and to a great degree, but from some
difference of opinion, partly as regarded the justifiability of premature
labor as compared with craniotomy, the patient was allowed to go her
full time. Both mother and child did well.
Finally, by turning, the use of the long forceps and of anæsthesia,
children are now constantly saved, where formerly craniotomy and their
consequent destruction would have been absolutely indicated. These
processes, with the introduction of each of which as an alternative a
single name is imperishably connected, are now successfully employed by
very many of the profession;[140] they have each of them saved to the
writer the disagreeable necessity of fœtal destruction. Where, however,
one life is thus preserved, there are still multitudes unnecessarily,
and, therefore, unjustifiably, sacrificed.
The comparative frequency of craniotomy in the different countries of
Europe is in this connection worth noticing.
The operation is performed, in
Germany once in every 1944 labors;
Paris ” ” 1628 labors;
France, at large ” ” 1200 labors;
Vienna ” ” 688 labors;
England ” ” 220 labors;
Ireland, formerly ” ” 128 labors;[141]
” at present, Dublin
Hospital, 1854, ” ” 105.7 labors.[142]
The remarkable difference between the practice on the continent and in
England, so suggestive to us in this country, is undoubtedly owing to the
fact that in Catholic States greater value is attached to the life of the
child than “in Protestant States, as Britain, where the child is always
sacrificed to save the mother.”[143] The immense excess of embryotomy
cases in Catholic Dublin furnishes no exception to this rule, drawn as
they are from hospital practice under Protestant control.
So far proof by deduction. In many cases involving the question of
craniotomy, that operation is not required; in some of them, not even the
induction of premature labor.
Two classes of cases remain, each affording more direct evidence; those
where craniotomy being absolutely indicated if the patient were allowed
to go her full time, that operation is, and those where it is not
performed.
Craniotomy, being necessarily fatal to the fœtus, is indicated only
to save the mother’s life; to be avoided when any other alternative
giving the fœtus a chance of life, and not more than equally hazardous
to the mother, can be resorted to. Especially is this the case when
it is compared with the induction of premature labor, attended as is
the latter, despite a certain amount of danger of its own, with great
probability of saving the child, and with decidedly lessened risk to
the mother; for craniotomy not merely requires the use of murderous
instruments, dangerous to all tissues they may approach or be in contact
with, but the operation is usually, though often very improperly, delayed
till late in labor, and therefore till the mother’s chances of recovery
have been proportionally lessened. Premature labor, on the other hand,
though of course involving some risk to the child, is not necessarily
fatal to it; nor is it usually so, when properly performed. That there is
a choice in this respect between the means employed, will hereafter be
shown.
Craniotomy, when absolutely indicated at the close of pregnancy, must be
for one of two reasons: that the fœtus cannot pass through the pelvis
at the full time alive, though it may do so unmutilated, the operation
being performed to save the mother the greater risks of protracted
labor; or that it cannot pass at the full time unmutilated, even when
dead. We defer the consideration of another supposable instance, where
the fœtus in the outset of its viability may pass, but not alive, for
this pertains to the consideration of the mother’s safety alone, no
alternative availing for the child. In the other cases, if the necessity
could be learned in season, from the previous history of the patient
or by pelvic exploration, labor should most certainly be prematurely
induced, as affording some positive chance of life to the child, and as
less dangerous to the mother. It were here worse than foolish, if not
criminal, blindly to imitate nature, when, her course being obstructed,
she would kill the child.
I have alluded for a double reason to cases, fortunately few, where
craniotomy, and much more decidedly premature labor being indicated,
the practitioner decides from the outset to perform neither, to give
his patient or her child no aid. Such conduct is as cruel and wicked as
it is unprofessional, and were not instances occasionally reported, its
existence could hardly be believed. We acknowledge with Blundell the
evils of meddlesome midwifery, but there are extremes to all things;
certainly to the powers of nature and the limits of justifiable delay.
I am aware that I have referred to a reported case, which might in this
connection be quoted against the opinion now expressed; but even by its
exceptions do we prove the rule. Where chances are so greatly against
both mother and child as in these cases if left unaided, it would be the
office of the physician, were there no better procedure, by craniotomy
to save the one;[144] but at the present day it is no less plainly his
duty, where possible, to anticipate labor, and thus save both. I have
elsewhere discussed this question at some length,[145] and can only
repeat, as is indeed allowed by Churchill,[146] that this is no matter
on which to select one’s words; the deliberately sacrificing an unborn,
but still living child, in cases where statistics go to prove that the
adoption of another mode of delivery, nothing counter-indicating, would
give that child a good chance of successful birth, is nothing short of
_wilful murder_, no matter by what schools or by what eminent men it may
be sanctioned, and it should be branded as such by the profession.
But, undertaken for the child’s sake, not merely should premature labor
be resorted to for the purpose of preventing craniotomy, but often in
cases of incurable disease, acute and chronic, of the mother, where it
is evident that she must inevitably, or even probably, perish before
the full period of pregnancy has been attained. Instances of such acute
disease will readily suggest themselves. The question here is merely
between the operation under consideration, the Cæsarean section, and
doing nothing. The last, suppose the fœtus viable and to be still living,
would in many instances be decidedly unprofessional and unjustifiable.
Cæsarean section after the mother’s death is comparatively unsuccessful;
and before it, is so much more severe and in all probability so much
more quickly fatal, that the other should be preferred, unless death be
already close at hand.
Instances of chronic incurable disease necessitating the induction
of premature labor, may not so readily occur to the mind. The shock
of an abortion being frequently greater to the maternal system than
that of labor at the full time, it is evident that this rule cannot be
universally applied. It cannot in every case of thoracic disease, of the
heart, for example, unless its own peculiar symptoms become so aggravated
from progressing pregnancy as to render probable earlier decease of the
mother, the operation then being performed partly on her account; not
so much to save her life as to delay a little her death. But there are
other and extreme cases, as cancer of the lower segment of the uterus,
or indeed of its fundus, which may have been diagnosticated previously
to pregnancy by the use of expansible tents, or of my uterine dilator
hereafter referred to, where the mother would probably perish in labor at
the full period, with most probably the loss of the child also. Here, by
premature labor, the child may be saved, and the mother’s life, greater
expansion of the uterus and its more probable laceration being prevented,
possibly prolonged.
So far complications on the part of the mother necessitating premature
labor for the sake of the child. There are others equally imperative,
afforded by itself. Excessive size of the fœtus in comparison with a
normal pelvis, as evidenced and rendered probable by previous labors, is
hardly of less importance in connection with craniotomy, than where the
pelvis is distorted or contracted, and the fœtus of natural size; but the
operation in question, as compared with premature labor, we have already
sufficiently discussed.
Diseases of the placenta, congestive, inflammatory or degenerative, are
no less an indication, where known to exist, for an early delivery. Their
diagnosis may be difficult, but yet not wholly impossible. The occurrence
of the same disease in past labors, and evident intra-uterine disturbance
as discovered by auscultation or by unnaturally frequent and strong
fœtal movements, are, taken together, frequently sufficient to establish
the fact. The impropriety of allowing such cases to proceed unaided,
cannot be too strongly insisted upon. By early delivery, if the fœtus
have formerly perished after the period of viability, and in addition,
by special medication of the parent, if its death had usually occurred
before that time, many valuable lives might annually be saved.
Premature labor as resorted to on the mother’s behalf alone, putting
aside the cases we have incidentally considered, where the lives of both
herself and her offspring are of necessity taken into account, includes
also its induction in the earlier months of pregnancy before the fœtus is
viable. It may be required by diagnosticated malformation or monstrosity
of the fœtus and by malformations on the part of the mother; by extreme
pelvic contraction, congenital or from rickets or malacosteon, preventing
the natural passage of a fœtus after viability, by tumors incapable of
elevation or displacement, by contraction of the vagina, or by other
severe obstetric complications, either recent or of long standing. Of
this last class of causes, obstinate vomiting, puerperal convulsions,
which are by no means confined to the full period of pregnancy, dropsies,
irreducible displacements of the uterus, varix of the external labial
vessels, sometimes fatal by laceration from tension, are all instances
in point. With regard to each, the necessity of the abortion must be
determined with the greatest caution, and resort be had to it, the child
still living, with reluctance; especially should this be the case if the
complication be supposed on the part of the fœtus, so important is it to
avoid its sacrifice, if possible, and the semblance of disregarding its
own important claims.
The rules for the operation when performed for the mother are the same as
when for the child, save that if absolutely required, it may be resorted
to at an earlier period. If the child must necessarily be lost, the labor
should not be long delayed.
* * * * *
There are several subordinate questions arising in this connection,
neither metaphysical nor merely casuistic, but practical, and because
bearing on the increase of criminal abortion, directly involving human
life to an indefinite extent. One of them we shall now mention.
Let physical incapacity to the birth of a living or viable child through
the natural passages be supposed to exist on the part of the mother; that
this has been proved by examination, or by the result of a former labor,
induced or at the full time. To save the mother’s life, early abortion
is once brought on and the child destroyed; the woman and her husband
being of course informed of the true state of the case. Is it right or
justifiable, again to destroy the fœtus, and as often as sexual lust may
repeat impregnation? Or should the patient be left to the risks of a
subsequent Cæsarean section, which would at least give the chance of life
to her child?
I am aware on which side of this question lies at present the opinion
and the practice of the mass of the profession; that Nægele[147] and
others[148] have ruled it right always to destroy the fœtus when a
refusal to undergo the Cæsarean operation shall have been formally
expressed by the mother; and that reports of instances where early
abortion has been repeated, even to nine times upon the same patient,
are still unblushingly published by men of the standing of Lever and
Oldham.[149]
But, on the other hand, in his late admirable justification of craniotomy
where absolutely necessitated, Churchill makes use of the following
language, which though offered in another connection, is none the
less pertinent here: “It is the due appreciation of these relative
responsibilities (regarding mother and child) in difficult cases, that
distinguishes the wise and experienced accoucheur; he preserves a just
counterpoise between them so long as it is possible to fulfil both, and
recognizes the proper moment when one ceases. _One_, I say, not _either_;
for I protest against the notion that _we choose which of the two lives
we shall save_, a notion as false in theory as it is in practice. _No man
dare make such a choice_, for we have neither the necessary knowledge,
nor the right, nor the authority, to decide which is the more important
life and best worth preserving.”[150]
“My own opinion is that such a course (the repetition of abortion)
ought not to be adopted, but that pregnancy should be allowed to
proceed, without interruption, to the full period; and when labor
declares itself, that the infant should invariably be extracted by the
Cæsarean section,”[151] which, when performed in season, is by no means
necessarily fatal to the mother, and may preserve life to the child.
The question now so plainly put, is one for the profession soberly to
discuss and to answer.
* * * * *
We have already shown that in many cases where instrumental delivery or
the induction of premature labor is apparently requisite, the mother, if
a Catholic, is sacrificed to the supposed impossibility of administering
the right of baptism to the child. We do not, with some, allow that the
physician is here justified in deliberately and falsely asserting the
child’s death, where such has not taken place, but we have revived the
suggestion of a method by which this great and fundamental obstacle may
be overcome. We assert that the negligence too often shown by physicians
in these cases, the custom of practically leaving the mother and her
child to their fate when instrumental delivery shall have been refused
upon religious grounds sincerely entertained,[152] is, however wide
it may appear from the point, directly incentive to the increase of
criminal abortion. Provided the question of necessity is determined, but
one course in these cases should be pursued, and that the performance of
intra-uterine baptism.
* * * * *
The objections usually made to the induction of premature labor,
namely, the uncertainty of all pelvic measurements and of the exact
period of gestation, the greater liability to malpresentation, and,
from the uninvoluted state of the cervix, to the evils of a lingering
labor, lose much of their force when tested by our preceding remarks.
If resorted to, the means of its induction are various, and, as regards
their justifiability, they present a decided choice. We here omit
the consideration of the methods indirect or of doubtful efficacy,
as draughts, general or local baths or bleedings, forced exercise,
fatigue, and voluntary falls or blows, so frequently resorted to by the
uneducated, or used, in addition to other procedures, by the designing to
mask the reality; these will be subsequently considered, and we confine
ourselves, in comparing the other and more direct methods, only to
ascertaining that which is safest and most efficacious, for these points
alone can decide their respective justifiability.
The direct and reliable means of inducing abortion, in the physician’s
possession, are only instrumental. Draughts of all kinds, whether
purgative, emmenagogue, or so-called specific,—aloes, ergot, or savin,—or
energetic poisons, expelling the fœtus through a sudden and profound
disturbance of the whole maternal system, as arsenic or cantharides, are
too unreliable, unscientific, or dangerous either to mother or child. The
justifiable methods are confined to those acting directly on the uterus
and its contents, by dilating the os or detaching the membranes.
They are, rejecting the local application of belladonna as utterly inert:
1. Local or distant and sympathetic irritation
By the hand;
medicinal applications;
electricity or galvanism.
2. Puncture of the membranes, and evacuation of their fluid contents.
3. Dilatation of the os, and separation of the membranes from the uterine
walls
By sponge tents;
the introduction of instruments;
or the injection of fluids.
The first of these modes, in all of its applications, is extremely
uncertain in effect.
The second, though that usually attempted, is of real avail only
toward the close of pregnancy, and is even then decidedly inferior to
the last of the methods proposed; at an earlier period it is probably
unjustifiable. In thirteen cases reported by Lever and Oldham,[153] where
labor was prematurely induced by puncturing the membranes, only four of
the children were born living, and in all these the presentation was by
the vertex. It has been shown that malpositions are much more frequent in
earlier than later pregnancy, and from evident causes, the comparative
absence and weakness of the fœtal movements which govern its position
in utero, and the want of correspondence in form between itself and the
containing organ. Of the nine cases reported where the fœtus was dead,
five presented by the vertex, and were therefore probably alive at the
commencement of labor, as after death previous to labor, malposition very
generally occurs, except there be deficiency of the liquor amnii or the
pregnancy have advanced to near its close.
Again, it appears from the same statistics, which as offered for another
purpose are the more to be depended upon, that in the successful
cases, where the child was born living, the length of time after the
operation and before the occurrence of pains, almost doubled that in
the unsuccessful cases, where the child was lost; the sum of the hours
in the four successful cases exceeding the sum in the nine unsuccessful
ones. That is to say, in the one class of cases time was allowed for a
certain amount of dilatation of the os and cervix and for some degree
of detachment of the membranes, an approach, however slight, to the
characters of normal labor; and in the other cases the labor was brought
on at once, without either of the above processes having commenced, and
when both uterus and its contents were totally unprepared. Had the times,
moreover, from the commencement of labor to its close, been given in the
two classes of cases, it would probably have been found that the relative
proportions were reversed; that the sum of the hours in the unsuccessful
cases exceeded that in the successful cases, as would be in strict
accordance with the results to the fœtus.
In premature labor, as in that at the full period, the bag of waters is
required to be preserved until it has fulfilled its purpose, on the one
hand, of a fluid wedge, and on the other, of protection to the child from
violence till it has fairly entered the pelvic brim. Puncture is also
attended with the danger of directly wounding the uterine tissues.
The last of the methods referred to, dilatation and detachment, combined
to a certain extent as they must necessarily be, is in close imitation of
the processes observed in natural labor, and is recommended alike by its
safety to mother and child, its certainty, and the ease both to physician
and patient with which it may be effected.[154]
* * * * *
From the above remarks it is evident that the profession need to exercise
great caution lest they directly, though unintentionally, become the
abettors of criminal abortion. But this liability is not confined to
the instances already mentioned, where abortion has been intentionally
induced. Nor is the matter in question one affecting merely the public
health and morals, like prostitution or syphilization. It is a liability
directly to increase the unjustifiable destruction of human life, and its
existence cannot be too strongly impressed upon our minds and guarded
against.
So true is this, that two of the French obstetricians, Moreau and Bégin,
have not hesitated to express their fears, and not on religious grounds
alone; the latter, with Tardieu, giving it as his conviction, that every
physician should make a legal declaration of the act to the public
prosecutor, immediately on inducing premature labor, even if the period
of viability has been reached by the fœtus. The subject has also been
discussed by the French Academy of Medicine;[155] and in Great Britain
it has been referred to by Radford, in whose opinion an enactment is
necessary, “entirely prohibiting obstetric abortion (before the period
of viability), as the door for evil purposes is already too open, and
would be still more so, if it was legally decided that where performed on
supposed obstetric grounds, no inquiry should be made.”[156]
Whenever an abortion is induced by a physician, even if accidentally, it
is liable to be thought intentional by the patient and her friends, and
consequently by the community, so far as it becomes aware of the fact.
Instances of this are within the writer’s knowledge.
Accidental abortions, caused by a physician, may be from two causes:
error or insufficient care in diagnosis, or the absence of all likelihood
of the existence of pregnancy. When cases are reported in apparent
innocence of fault, and by eminent practitioners, of the pregnant
uterus having been tapped for ovarian dropsy; of craniotomy having been
attempted upon an infant’s fundament instead of its skull, and of the
same operation in another instance undertaken upon the promontory of
the mother’s sacrum, it cannot be alleged, I care not by whom, that
this caution is unnecessary or these fears unfounded. The writer will
state a few cases that have happened under his own observation. He has
twice known abortion to be accidentally occasioned by the use of sponge
tents;[157] the patients being near the close of their menstrual lives,
and neither themselves nor the physicians in attendance supposing that
the contents of the enlarged uterus could be fœtal; in one of these cases
the woman had never before been pregnant, and in the other not for many
years. He has twice known the introduction of an intra-uterine pessary
to be followed by abortion; in neither case was there any probability
of the existence of pregnancy, save in the fact that the patients were
married. He has known abortion to be produced by the application of lunar
caustic to the os, in a case where, from the character of the operator,
no suspicion could be entertained of the uterus having been more deeply
tampered with.
In cases like these, the practitioner would seem to render himself
liable to the charge of malpractice, even though by the improbability of
malicious intent he escaped that of criminal abortion. In all instances
where there exists the slightest suspicion or possibility even of
pregnancy, the only rule for operative interference must be, unless
circumstances imperatively prevent, to wait the few months or weeks
necessary to establish the diagnosis. Justice to the profession and to
the risk of error demand that where such precaution is not had, it should
be replaced by a consultation, which would at once dispel any suspicion
of carelessness or malpractice, and prevent a criminal charge.
All that we have said regarding surgical obstetrics, applies as forcibly
to its medicinal procedures. Though draughts and potions of every kind
are, as we have remarked, of doubtful or indirect efficacy for inducing
abortion, yet with some of them instances of its occurrence do at times
result. In supposed obstructive amenorrhœa, unless of several months
standing, and in early pregnancy where established, the physician who
does not intend it, must take care lest accidentally or carelessly, by
purging, vomiting or over-bleeding, he produce a miscarriage.
* * * * *
But there is still another point in this connection we must not pass
over. We state it in the following inquiries, received from one of the
most eminent practitioners of the Eastern States, and put to us in all
sincerity.
“Are there not cases where a physician would be justified in suggesting a
course such as he would use in amenorrhœa, even where he might _suspect_,
but not _know_, the existence of pregnancy? Suppose a mother of several
children, which she has had in rapid succession, and the physician feels
assured that health, and possibly life, will be endangered if another
pregnancy occurs; would he be criminal if he were to use common means for
amenorrhœa if the menses have been absent six weeks? Are the cases always
so plain that a man can decide, and may he not balance a choice of evils?”
Covering as these questions do, much of the ground already gone over,
we may answer them at once, and decidedly in the negative. They
apply more especially to the early months of pregnancy, where it is
always impossible to know its existence; and were direct or probable
emmenagogues, or instrumental interference, to be here allowed, criminal
abortion might be always induced before quickening, sanctioned and
permitted by the rules of medicine. To justify abortion, life must
certainly or very probably be endangered, not possibly merely, which is
true in every pregnancy, and might be alleged at every trial for the
crime.
Hufeland advised, as a “golden rule,” always to suppose the existence of
impregnation in such cases, and to act accordingly; that is, to temporize
long enough for the fœtus, if present, to make its sign. “Thereby,”
he says, “the physician will avoid much mischief, and preserve his
conscience as well as his reputation.”[158]
The ideas on this subject held by my friend, are without doubt widely
entertained by the profession. This paper will have served a good purpose
and have saved many fœtal lives, if it do no more than carry conviction
of the error and its likelihood to indefinitely extend the crime.
* * * * *
Again, it is undoubtedly the case that in all cases of maternal death
during pregnancy, where the fœtus has arrived at the period of viability,
its immediate extraction by the Cæsarean section should be effected.
We have already referred to this subject, and Kergaradec, who has well
written upon it, lays down the maxim that the operation should always be
performed, even in the fifth month of pregnancy.[159] In some cases,
of placenta prævia, for instance, where the chances are always more or
less against the child’s life, success is less probable; but this in no
wise invalidates the necessity of the operation. The writer has himself
performed it in the complication instanced, and in vain; but he would
none the more hesitate, on this account, to repeat it. There can be
no reason against the procedure in any case, and by it the child may
possibly be saved. In the words of an older writer, “Est enim inhumanum,
post obitum matris, fœtui pereunti et suffocari parato manus auxiliares
denegare, et sæpè viventem adhuc cum matre mortuâ eodem tumulo contegere
et obruere. Idcirco jurisconsulti eum _necis_ reum damnant, qui gravidam
sepelierit non prius extracto fœtu.”[160]
A question has been raised concerning the rights of relatives in
preventing the physician from such discharge of his duty. It has
been asserted that “the father has not only the natural right of his
relationship, but legal power; for Dr. Lever recently mentioned that he
had consulted Dr. Alfred Taylor to know whether he would be justified in
performing Cæsarean section after the death of the mother, without the
consent of the father, as it appeared unjustifiable homicide to allow
the infant to die. Dr. Taylor gave his opinion that, in law, the infant
belonged to the father,—the infant with the life thereof,—and that if
Dr. Lever touched it, even to rescue it from death, an action would lie
against him.”[161] I must, however, declare such doctrine to be false
and pernicious. If signs of the child’s life remain, no physician should
hesitate endeavoring to preserve it, unless restrained by actual force. I
reiterate my conviction that such neglect, or seeming neglect, of fœtal
life is an actual wrong, both against the individual and against society.
Similar points in which physicians are directly interested, as tending
by their apparent disregard of fœtal life to render themselves innocent
abettors of criminal abortion, are not uncommon. Such are neglect of
efforts to prevent miscarriage when threatening, or where it has become
an established habit; and of attempts at resuscitating still-born
children where there is the slightest chance of success, and success has
now been rendered much more probable by the methods of Marshall Hall and
Silvester; the performance of operations of any kind upon a pregnant
woman, even tooth-drawing,[162] that might be delayed; the careless or
unnecessary use of ergot; the relying upon a single and unaided opinion,
where not one life only, but two, may be endangered.
Other instances might be adduced; but enough has already been said to
prove that the importance of the subject we are considering, and the
responsibilities resting upon the profession regarding it, demand as I
have elsewhere suggested,[163] that physicians should possess, should
acknowledge, and should govern themselves by, an _Obstetric Code_—the
necessity of which will be made even more manifest, as we proceed in our
investigation of questions pertaining to Obstetric Jurisprudence. We have
referred to some of its leading principles, but have done no more than
faintly foreshadow them.
Distressing in the retrospect, inconvenient frequently in the
present,[164] such a Code would undoubtedly prove; but it is demanded
of the profession by the progress of our science, by humanity, morality
and religion. Were the facts in the case more generally known, and the
existence and sanctity of fœtal life more universally appreciated, it
would be also demanded by public opinion.
We have now seen that “the absurd enactments still remaining on the
statute book, the careless indifference with which society views the
crime, the reluctance with which means are adopted to prevent its
occurrence, its increase, and its frequent induction by obstetricians,
are all evils which loudly and imperatively call for the closest
investigation.”[165]
We proceed to the other relations of criminal abortion, more especially
to those immediately pertaining to the claims and course of justice.
VII. ITS OBSTACLES TO CONVICTION.
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.
* * * * *
By the common law of England, as stated by Blackstone:—
“If a woman is quick with child, and by a potion or otherwise, killeth it
in her womb, or if any one beat her, whereby the child dieth in her body,
and she is delivered of a dead child, this, though not murder, was by the
ancient law homicide, or manslaughter. But the modern law doth not look
upon this offence in quite so atrocious a light, but merely as a heinous
misdemeanor.”[170] “But if the child be born alive, and afterwards die in
consequence of the potion or beating, it will be murder.”[171]
By this law it is necessary to furnish proof not merely of pregnancy, but
of quickening; no one besides the mother can be reached, save in the rare
instance of beating; it is often impossible to prove that a child, born
living, has died in consequence of means used upon itself or its mother
before the birth.
* * * * *
The Ellenborough act,[172] passed in 1803, runs thus:—
“If any person shall willfully and maliciously administer to, or cause
to be administered to, or take any medicine, drug, or other substance
or thing whatsoever, or use, or cause to be used or employed, any
instrument, etc., with intent to procure the miscarriage of any woman,
not being, or not being proved to be, quick with child at the time of
committing such thing, or using such means, then, and in every such case,
the persons so offending, their counselors, aiders and abettors, shall be
and are declared guilty of felony, and shall be liable,” etc. etc.; if
before quickening, to fine, the pillory, stripes, or transportation; if
after quickening, to death;—but in the clause providing for the latter
case, mention of instruments was omitted.
* * * * *
Punishment was thus extended to the crime prior to quickening; and
besides the actual perpetrator, to those counseling and assisting
therein. For its commission after quickening, capital punishment was
restored; but by a strange oversight, no penalty was provided for the
cases occurring at this period, where the abortion was induced by
instrumental or other mechanical violence.
To remedy this defect another act, that of Lord Lansdowne,[173] was
substituted in 1828:—
“If any person, with intent to procure the miscarriage of any woman then
being quick with child, unlawfully and maliciously shall administer to
her, or cause to be taken by her, any poison or other noxious thing, or
shall use any instrument, or other means whatever, with the like intent;
every such offender, and every person counseling, aiding or abetting such
offender, shall be guilty of felony, and being convicted thereof, shall
suffer death as a felon;” if the woman were “not, or not proved to be,
then quick with child,” the offence was still felony, and punished by
transportation, or imprisonment and stripes.
By this enactment, the mistaken belief in a difference of guilt,
according to the period of fœtal life, was still retained. For which
reason, and in the false hope that by again abolishing capital
punishment, juries would more frequently decide in accordance with fact,
the English law has later, and during the present reign, still further
been modified and rendered more just, simple, and comprehensive.[174]
* * * * *
“Whosoever, with the intent to procure the miscarriage of any woman,
shall unlawfully administer to her, or cause to be taken by her, any
poison or other noxious thing, or shall unlawfully use any instrument,
or other means whatsoever, with the like intent, shall be guilty of
felony, and being convicted thereof, shall be liable,” etc. etc., to
transportation or imprisonment.
* * * * *
By the present English statute, the woman herself can hardly yet be
reached; many convictions must still be lost from failure to prove the
agent either a poison or noxious thing; in other respects, however, it is
well drawn. Attempts at the crime are covered, and proof is not required
of pregnancy, or of actual injury to the mother.
* * * * *
So far the instances in this country of an absence of special statutes.
Where such exist, they may be variously classified. Reserving for a
little all other considerations, we find them at once falling into four
great divisions.
I. Those acknowledging the crime only after quickening has occurred:—
Connecticut,
Mississippi,
Arkansas,
Minnesota,
Oregon.
II. Those acknowledging the crime throughout pregnancy, but supposing its
guilt to vary with the period to which this has advanced:—
Maine,
New Hampshire,
New York,
Ohio,
Michigan.[175]
III. Those acknowledging the crime throughout pregnancy, unmitigated; but
still requiring proof of the existence of this state:—
Vermont,
Massachusetts,
Illinois,
Wisconsin,
Virginia,
Missouri,
Alabama,
Louisiana,
Texas,
California.[176]
IV. That, like the present English statute, requiring no such proof, and
punishing also the attempt, even though pregnancy do not exist:—
Indiana.
Briefly to recapitulate these groups:—
Maine, Class II.
New Hampshire, ” II.
Vermont, ” III.
Massachusetts, ” III.
Rhode Island, no statute.
Connecticut, Class I.
New York, ” II.
New Jersey, none.
Pennsylvania, none.
Delaware, none.
Maryland, none.
District of Columbia, none.
Virginia, Class III.
North Carolina, none.
South Carolina, none.
Georgia, none.
Florida, none.
Alabama, Class III.
Mississippi, ” I.
Louisiana, ” III.
Texas, ” III.
Ohio, Class II.
Indiana, ” IV.
Illinois, ” III.
Michigan, ” II.
Kentucky, none.
Tennessee, none.
Missouri, Class III.
Arkansas, ” I.
Wisconsin, Class III.
Iowa, none.
Minnesota, Class I.
California, ” III.
Oregon, ” I.
We now proceed to the consideration of these statutes in detail, and for
this purpose, present them at length.
* * * * *
I. States acknowledging the crime only after quickening:—
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.
VIII. CAN IT BE AT ALL CONTROLLED BY LAW?
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.
IX. THE DUTY OF THE PROFESSION.
I have stated that the prevalence of criminal abortion is in great
measure owing to a seeming neglect of fœtal life on the part of medical
practitioners, and that in other degree it is attributable to ignorance
by the community of the actual character of the offence, an ignorance of
physiological facts and laws; and on both these points abundant proof has
been afforded of the truth of my assertions.
I have also stated that medical men, in all obstetric matters, are the
physical guardians of women and their offspring; a proposition that none
can deny.
We have seen that unjustifiable abortion, alike as concerns the infant
and society, is a crime second to none; that it abounds, and is
frightfully on the increase; and that on medical grounds alone, mistaken
and exploded, a misconception of the time at which man becomes a living
being, the law fails to afford to infants and to society that protection
which they have an absolute right to receive at its hands, and for the
absence of which every individual who has, or can exert, any influence in
the matter, is rendered so far responsible.
Under these circumstances, therefore, it becomes the medical profession
to look to it, lest the _whole_ guilt of this crime rest upon themselves.
And, in the first place, it might be asserted with some truth, that such
is indeed the case. For, on the one hand, it was from physicians, as
is proved by early medical literature, that the mistaken notions, both
of the law and of the people, regarding intra-uterine vitality, were
derived; and on the other, the apathy and silence still existing on this
subject among medical men, though thousands and hundreds of thousands of
human lives are thus directly at stake, and are annually sacrificed, can
only be explained on one of two suppositions,—either that we do not yet
really believe in the existence of fœtal life, though professing to do
so, or that we are too timid or slothful to affirm and defend it. By the
one alternative a gross lie seems proved; by the other a degrading and
strange inconsistency.
But, I believe, this apparent negligence proceeds only from ignorance
of the real duty of the profession. It is my aim, while setting forth a
deliberate and carefully prepared opinion upon this point, to inspire, if
possible, in my fellow-practitioners throughout the land, somewhat of the
holy enthusiasm sure in a good cause to succeed despite every obstacle,
and an earnest, uncompromising hostility to this result of combined error
and injustice, the permitted increase of criminal abortion.
Enough has already been said to show that there is need of increased
vigilance on the part of medical men, lest they themselves become
innocent and unintentional abettors of the crime.[256] If, on the other
hand, the community were made to understand and to feel that marriage,
where the parties shrink from its highest responsibilities, is nothing
less than legalized prostitution, many would shrink from their present
public confession of cowardly, selfish and sinful lust. If they were
taught by the speech and daily practice of their medical attendants, that
a value attaches to the unborn child, hardly increased by the accident of
its birth, they also would be persuaded or compelled to a similar belief
in its sanctity, and to a commensurate respect.
But it is asked, is our silence wrong? Is there not danger otherwise of
increasing the crime? These are the questions not of wisdom, or prudence,
or philanthropy, but of an arrant pusillanimity. Vice and crime, if kept
concealed, but grow apace. They should be stripped of such protection,
and their apologists, thereby their accomplices, condemned. Answers,
however, are ready at hand to the questions proposed.
“It is one of the great desiderata of registration, that more
particularity should be observed in collecting facts relating
to the subject of the still-born.”[257]
“Has it been sought,” society demands of the profession, “to
account for the peculiarities relating to the still-born, and
to combat the causes which in certain circumstances swell their
number in so deplorable a manner?”[258]
“An honest and fearless expression of these causes and
circumstances, on the part of medical men, would bring to light
an amount of knowledge that might be useful in checking this
horrible and increasing waste of life.”[259]
“Such an exercise of his knowledge, experience, and true moral
courage, is not only the province, but the conscientious duty
of the physician.”[260]
“It should be constantly borne in mind, that there is here a
high and stern morality, that should stimulate the medical
profession in the exercise of their utmost effort and
ingenuity, with the view to master and disclose the secrets of
these villainous practices; the more villainous, because they
are very generally conceived in fraud, practiced in deception,
upon innocent and unsuspecting victims, and result the most
commonly in the destruction of two lives at once.”[261]
“For ourselves, we have no fear that the truth in reference to
the crime of procuring abortion, would do aught but good. It
would appear that sheer ignorance in many honest people, is the
spring of the horrible intra-uterine murder which exists among
us; why not then enlighten this ignorance? It would be far more
effectually done by some bold and manly appeal, than by the
scattered influence of honorable practitioners alone. Will not
the mischief, by-and-by, be all the more deadly, for delaying
exposure and attempting relief?
“Whatever estimate may attach to our opinion, we believe that
not only ought these things not so to be, but that the public
should know it from good authority.”[262]
“This is a topic which ought to be regarded of the highest
interest to the profession and the public.”[263]
“It is by far the most important subject before the profession,
and in its medical as well as moral bearings, appeals alike to
our patriotism and humanity.”[264]
“We think the public have very erroneous ideas of the turpitude
of this crime, and we deem it our duty, as conservators both
of the public health and morals, to set it in a correct light
before them.”[265]
“The question of criminal abortion is doubtless one of extreme
difficulty; it is not, however, beyond the reach of the
enlightened prudence and the firm will of the authorities. It
is a subject of such vital import to society in general, that
we feel convinced it cannot but awaken the anxious thought of
the persons who, from their position, are entrusted with the
application of the laws and the control of public morals.”[266]
Whoever shall succeed in fixing upon it the attention it
deserves, “has taken a stand in this matter alike creditable to
his head and his heart, and we feel that he will receive the
hearty thanks of every true physician.”[267]
“The increasing prevalence of infanticide,” which is but
rare compared with criminal abortion, “its dangerous moral
influence, the apathy with which so many regard its spread,
and the very considerable difficulty in obtaining conviction,
call loudly for reform. The question is one of national
importance.”[268]
“With this view of the case before us, I suggest it as our
imperative duty to direct the attention of legislators to the
importance of enacting a statute in conformity thereto.”[269]
Such are the confessions, independently given, of high-minded and
honorable medical men. No more can be added, no less would have been
true.
It must be granted, then, that a bold and manly utterance of the truth,
combining as this must, contradiction of the error and denouncement of
the crime, should be made by the members of the profession on every
occasion. By this course it is plain that a healthier moral tone would
be made to prevail in the community, the crime would become of rarer
occurrence, and the laws, such as they are, would be more faithfully
attempted to be enforced.
But it has been shown that the laws on the subject of criminal abortion
are radically imperfect and defective, and that this is attributable,
wholly, to a medical cause. We assert, therefore, that not only is it
the duty of the profession as individual components of society, but more
especially as medical men, to see them amended, and to leave no means
untried, no effort unmade, for the attainment of this end.
“Physicians alone,” says Hodge in his Introductory Address, “can rectify
public opinion, they alone can present the subject in such a manner
that legislators can exercise their powers aright in the preparation
of suitable laws; that moralists and theologians can be furnished with
facts to enforce the truth upon the moral sense of the community, so
that not only may the crime of infanticide be abolished, but criminal
abortion properly reprehended, and that women in every rank and condition
of life may be made sensible of the value of the fœtus, and of the high
responsibility which rests upon its parents.”[270]
It has been stated, indeed publicly avowed by a medical body,[271] that
when a physician “shall become cognizant of any attempt unlawfully to
procure abortion, either by persons in the profession or out of it, it
shall be his duty immediately to lodge information with some proper legal
officer, to the end that such information may lead to the exposure and
conviction of the offender.”
This doctrine is doubtless true to a great extent, but it cannot be
applied to the confidential disclosures of patients themselves, which no
man has a right to reveal, unless constrained by the direct command of
the court, at which, it has been ruled, even professional secrets must be
divulged.[272]
* * * * *
It follows, from the evidence we have now adduced, that if it be the
duty of the profession to urge upon individuals the truth regarding
this crime, it is equally their duty to urge it upon the law, by whose
doctrines the people are bound; and upon that people, the community, by
whose action the laws are made.
And this should be done by us, if we would succeed in suppressing the
crime, not by separate action alone, but conjointly, as the profession,
grandly representing its highest claim,—the saving of human life.
Every step toward this end should be hailed with enthusiasm. The late
action of the State Society of Massachusetts, directly resulting from
professional agitation of the subject, deserves praise and imitation; the
body referred to having passed a series of resolutions to the following
effect: “That the Fellows of the Massachusetts Medical Society regard
with disapprobation and abhorrence all attempts to procure or promote
abortion, except in cases where it may be necessary for the preservation
of the mother’s life; and that no person convicted of such attempt,
can, consistently with its by-laws, any longer remain a fellow of the
society.”[273]
But the mere passage of resolutions in disapproval of this horrible and
so rapidly increasing crime is not sufficient to effect its abatement.
Something more is wanted than the testimony of record books, the
pointless vote of a board of councillors. There must come a hearty,
earnest, and unanimous voice from the mass of the profession; an
assertion that criminal abortion, or at least its permitted commission,
shall no longer exist.
Too much zeal cannot be shown by physicians in relieving themselves
from the weight of responsibility they may have incurred by innocently
causing the increased destruction of human life. Let it not be supposed
by the public that there is among us, either in theory or practice, any
disregard of the unborn child. If such impression have already obtained,
from our own negligence, the falsehoods of irregular practitioners, or
otherwise, it should at once be removed. Fœtal life ever is, and ever has
been, held sacred by all respectable physicians, and whenever criminal
abortion has been known to have been advised, perpetrated or abetted by
one claiming our honorable name, he has invariably and at once lost all
professional standing.
We have seen that it is no trifling matter, this awful waste of human
life. It is a subject that demands the best efforts of the whole
profession as a body and as men. The crime, no longer practiced in
secret, must be met boldly; and met with unanimity, it will be met
successfully.
But whether these efforts are to be at once decisive or not, whether
they are to be received with the gratitude of the community or its
disfavor, is no concern of ours. Our duty is very plain; it is to stand,
irrespective of personal consequences, in the breach fast making in
the public morality, decency, and conscience, and, to the best of our
strength, to defend them.
It might be, it very likely would be, for our immediate pecuniary
interest, as a profession, to preserve silence; for we have shown that
abortions, of all causes, tend to break down and ruin the health of the
community at large. But to harbor this thought, even for a moment, were
dishonorable. “I will never set politics against ethics,” said Bacon,
“for true ethics are but as a handmaid to divinity and religion.”
We must take this decided stand, there is no choice; else we are
recreant to the high trust we have assumed, and to ourselves. Whether
the suppression of abortion be effected or no, one thing is certain, our
own hands will have been cleansed of this sea of blood. We shall have
declared our abhorrence and our innocence of the crime.
Longer silence and waiting by the profession would be criminal. If these
wretched women, these married, lawful mothers, aye, and these Christian
husbands, are thus murdering their children by thousands, through
ignorance, they must be taught the truth; but if, as there is reason to
believe is too often the case, they have been influenced to do so by
fashion, extravagance of living, or lust, no language of condemnation can
be too strong.
Let us, then, meet the issue earnestly and boldly. Silence and patient
expectance have been fairly tried; the disease is not self-limited; the
evil, instead of working its own cure, has assumed a gigantic, an awful
growth.
Abstract discussions of this matter, by ourselves, and within the closed
doors of our several societies, no longer avail. We are all agreed upon
the guilt of abortion; we ever have been. Our prayers for its suppression
have not been answered, for they have hitherto been offered with inactive
hand.
We should, as a profession, openly and with one accord appeal to the
community in words of earnest warning; setting forth the deplorable
consequences of criminal abortion, the actual and independent existence,
from the moment of conception, of fœtal life. And that the effort should
not be one of words merely, we should, as a profession, recommend to the
legislative bodies of the land, the revision and subsequent enforcement
of all laws, statutory or otherwise, pertaining to this crime,—that the
present slaughter of the innocents may to some extent, at least, be
made to cease. For it is “a thing deserving all hate and detestation,
that a man in his very originall, whiles he is framed, whiles he is
enlived, should be put to death under the very hands and in the shop of
nature.”[274]
In conclusion; a committee, consisting of Drs. Blatchford, of New York,
Hodge, of Pennsylvania, Pope, of Missouri, Barton, of South Carolina,
Lopez, of Alabama, Semmes, of the District of Columbia, Brisbane,
of Wisconsin, and the writer, was appointed by the National Medical
Association, at its meeting at Nashville, in 1857, to report upon
criminal abortion, with a view to its general suppression. The report of
this committee, brief, but in strict accordance with the series of papers
now ended, has lately been made to the Association, at its session held
at Louisville, in May of the present year. The report was accepted, and
the resolutions appended to it[275] were _unanimously_ adopted.
In behalf of the committee, of whom he had the honor to be chairman,
the writer cannot close this portion of his labors without thanking the
physicians of the land, represented as they are by the Association, for
their hearty and noble response to the appeal that has been made them.
He would express, were it possible, the gratitude not of individuals,
but society; for by this act the profession has again been true to “its
mighty and responsible office of shutting the great gates of human death.”
FOOTNOTES
[1] So far as the writer is aware, there exists, in this or any other
language, no paper upon the subject at all commensurate with its
importance. The chapters devoted to it in medical text-books, though
some of them admirable so far as they go, especially that of Beck, are
defective and often erroneous; while but little information of any value
can be found elsewhere. In the French periodicals have appeared articles
on special points hereafter referred to; in Great Britain able arguments
regarding the commencement of fœtal life have been made by Radford,
(1848;) and in this country, with remarks on the frequency of the crime,
by Hodge, of Philadelphia, (1839 and 1854,) and by the present Professor
of Obstetrics in Harvard University, (1855.) To the latter, his father,
and to the journalists (Drs. Morland and Minot, of Boston,) by whom
the effort then made was so warmly and eloquently seconded, the writer
acknowledges his indebtedness for the thought of the present undertaking.
[2] As quoted by Hodge. Introductory Lecture, p. 15.
[3] Hippocrates states that this is a fact, and that he had found
the difference of a whole month, which he attributes to the “greater
strength” of the male.—(_On the Nature of the Child_, Sect. 11.) I am
unaware that this point has been investigated by any modern writer.
[4] “These sounds may sometimes be distinguished several weeks before the
mother becomes conscious of the motions of the child.”—NÆGELE; _Treatise
on Obstetric Auscultation_, p. 50.
[5] Memoire sur la cause des Présentations de la Tête, &c.—_Mém. de
l’Acad. Roy. de Méd._ tome ii.
[6] A. PARÉ; English Trans., p. 899. HUGH CHAMBERLEN’S Trans. of
Mauriceau on _Diseases of Women with Child_, p. 147, Note. ENNEMOSER;
Historisch-physiologische Untersuchungen über den Ursprung und das Wesen
der menschlichen Seele; Bonn, 1824. CABANIS; Rapports du Physique et du
moral de l’Homme, tome ii. p. 431.
[7] Ed. _Med. and Surg. Journ._, Jan. 1855, p. 50.
[8] SIMPSON, _Obstetric Works_, vol. ii. p. 88.
[9] Many of the statistics now presented we have also embodied in a paper
upon the decrease of the rate of increase of population now obtaining
in Europe and America, read before the American Academy of Arts and
Sciences, December 14th, 1858, as a contribution to the Science of
Political Economy.
[10] MOREAU DE JONNÉS, Eléments de Statistique, 1856, p. 202.
[11] Journal des Economistes, March and May, 1847.
[12] Edinburgh Review, Jan. 1857, p. 342. Med. Times and Gazette, May,
1857, p. 462.
[13] Lehrbuch der Politischen Oekonomie.
[14] Sur l’Homme et la Developpement de ses Facultés, tome i. ch. 7.
[15] Journal des Economistes, May, 1847.
[16] MILL, Principles of Political Economy, i. p. 343.
[17] HUSSON, Les Consummations de Paris, 1856.
[18] Compiled from DE JONNÉS.
[19] 10,925 births; 646 still-births.
[20] Births, 52,538; still-births, 2624.
[21] Compiled from QUETELET, Theory of Probabilities, p. 152; 406,073
living births; 16,767 still-births.
[22] Births, 7,593,017; still-births, 257,068. 1839-41, 1 to 26; ELLIOTT,
Hunt’s Merchants’ Magazine, July, 1856.
[23] 2080 still-births.
[24] 2349 still-births.
[25] DE JONNÉS, loc. cit., p. 239.
[26] QUETELET, loc. cit., p. 152.
[27] Register of the Morgue.
[28] DE JONNÉS, loc. cit., p. 193.
[29] Report of City Inspector of New York for 1849.
[30] City Inspector’s Report for 1856.
[31] Ibid.
[32] Compiled from QUETELET, loc. cit., p. 152.
[33] Compiled from City Inspector’s Report for 1855.
[34] Ibid. for 1856.
[35] CLAY, Obstetric Cyclopedia, p. 21.
[36] Separate records of the premature births in New York were not made
before this period. They were not rendered in 1842; I have therefore
omitted in the calculation the still-births of the same year. For a
series of the official reports, I am indebted to the present City
Inspector, Mr. Geo. W. Morton.
[37] Report of 1849.
[38] Loc. cit., p. 195.
[39] Loc. cit., i. p. 344.
[40] Ibid., p. 343.
[41] Med. Times and Gazette, June 1856, p. 611.
[42] Les Consummations de Paris.
[43] Loc. cit.
[44] DE JONNÉS, loc. cit., p. 194.
[45] Ibid., p. 195.
[46] Journal des Economistes, 1847.
[47] MILL, loc. cit., i. p. 336. The italics are my own. I shall
hereafter refer back to this passage.
[48] Ibid., i. p. 417.
[49] Essay on Population.
[50] MILL, loc. cit., i. p. 417.
[51] Travels of Anacharsis, v. p. 270.
[52] Ibid., iv. p. 342.
[53] Satires, vi., v. 592.
[54] Amor., lib. 2.; Heroïdes, epist. 2.
[55] REEVE’s Apologies.
[56] BLAQUIERE, Letters from the Med., pp. 90, 184; SLADE, Records of
Travels, ii. p. 162.
[57] BARROW, Travels in China, p. 113; DE PAUW, Philosoph. Dissert;
MEDHURST, China, &c., p. 45; SMITH, Exploratory Visit, &c., i. p. 53.
[58] GOLOWNIN, Memoirs of a Captivity, iii. p. 222.
[59] MOOR, Hindoo Infanticide, p. 63; BUCHANAN, Christian Researches in
Asia, p. 49; WARD, View of the History, &c., of the Hindoos, p. 393.
[60] For a long list of authorities on these points, see BECK, ii. p.
389, et seq.
[61] Belgium.
[62] Local exceptions to this general rule will of course be found
to exist, as is always the case with laws based on mere statistics,
especially, as here, where reports to the registry are liable, for
evident reasons, to be withheld. Thus it appears from Dr. Jewell’s
collections (this Journal, March, 1857, p. 277,) that the proportion
of still-births in Philadelphia was, in 1856, only 1 in 913 to the
total population, and 1 in 20.1 to the general mortality, against which
evidence must be placed that which we subsequently furnish from Prof.
Hodge.
[63] MSS. Letter from City Registrar, March 26, 1857.
[64] CHICKERING, Comparative View of the Population of Boston, 1850. City
Document, No. 60, p. 44.
[65] Twelfth Registration Report to the Legislature of Massachusetts,
1853, p. 116. The truth of this statement has been corroborated by Dr.
Curtis, in his Report on the Census of Boston in 1855. City Document,
1856, p. 22. Also, Fifteenth State Registration Report, 1856, p. 179.
[66] “Had the rate of the annual increase of the numbers living under
the age of five (3.13 per cent.) resulted entirely from the increase of
births in a permanent population, the number of births of 1855 (in the
districts where the ratio of the registered deaths to the population was
greater than one to sixty-three, 166 of the 331 towns) would have been
24,457, instead of 23,481, the number registered. On the other hand, had
the increase resulted wholly from migration, (the annual number of births
in the permanent population being constant,) the number of births would
have been only 22,956. The number of births registered is somewhat nearer
the latter than the former of these two values.
“Assuming the correctness of the births, deaths, and population, in the
selected districts, it appears that 35 per cent. of the increase of the
population under the age of five was due to births in the permanent
portion of the population, and 65 per cent. due to the movement of the
migratory portion; also, that 38 per cent. of the increase of population
at all ages was due to excess of births over deaths, leaving 62 per cent.
to be accounted for by excess of immigration over emigration.”—ELLIOTT,
The Laws of Human Mortality in Massachusetts; Proceedings of Am. Assoc.
for Adv. of Science, Montreal, 1857, p. 57.
[67] CHICKERING, loc. cit., p. 49.
[68] The tables now presented, we have compiled from the fifteen
published Registration Reports of the State of Massachusetts. Advance
sheets of the Sixteenth Report have kindly been furnished me while this
article is passing through the press, by the compiler, Dr. Josiah Curtis,
of Boston. The premature births for 1856 and 1857 are not given in the
reports for those years, so that I cannot extend my calculations beyond
1855. Deductions from the still-births at the full time, which are alone
given in the years referred to, are of course useless for the present
inquiry.
[69] Births, 27,664; population, 994,665.
[70] Births, 32,845; population, 1,132,369.
[71] Total births at full time, 32,845; living births at full time,
32,120. Fœtal deaths, 2064; still, at full time, 725; premature, 1339.
[72] Total deaths, including 1462 fœtal, 19,461.
[73] Total deaths, including 2064 fœtal, 21,523.
[74] Births at full time, 154,245; premature, 5899.
[75] Fourteenth Registration Report, 1855.
[76] Fourteenth Registration Report, 1855.
[77] In the above remarks we must not be misunderstood. We believe
Massachusetts no worse with regard to abortion than many other portions
of the country, but that its registration is conducted with greater care.
From the statistics given it may easily be surmised what the amount of
this crime _must be elsewhere_. It is necessarily of infinitely more
common occurrence than infanticide, the murder of children after birth,
for proof of the frequency of which, at the present moment, in Great
Britain, we refer to Dr. Burke Ryan’s Fothergillian Essay on the subject
in the London Sanitary Review for last July, and to the London Lancet of
corresponding date.
[78] As, for instance, in the regularly progressive series of deaths and
births, as compared with the population; constant, also as compared with
each other:—Population of Massachusetts: by census of 1850, 994,665;
1855, 1,132,369. Deaths: 1851, 18,934; 1852, 18,482; 1853, 20,301; 1854,
21,414; 1855, 20,798. Births: 1851, 28,681; 1852, 29,802; 1853, 30,920;
1854, 31,997; 1855, 32,845.
[79] Reports of Attorney-General of Massachusetts, from 1849 to 1858.
State Documents.
[80] Comptes Rendus Annuels de la Justice Criminelle.
[81] Introductory Lecture, 1854, p. 17.
[82] Report to Suffolk Dist. Med. Society, May, 1857; New York Med.
Gazette, July, 1857, p. 390; N. H. Journal of Medicine, July, 1857, p.
211.
[83] Loc. cit., p. 313.
[84] The Law of Population, 1830.
[85] HUME, Essays, vol. i. No. xi., p. 431.
[86] Études sur l’Économie Politique; Nouveaux Principes d’Économie
Politique.
[87] Loc. cit., ii. p. 253.
[88] Ibid., i. p. 451. An opinion to the same effect, italicized, has
already been quoted.
[89] Ibid., ii. pp. 316, 317.
[90] Ibid., i. p. 452, foot-note.
[91] Ibid., i. p. 447.
[92] Nouveaux Principes, &c., liv. vii. ch. 5.
[93] Medical Ethics, p. 79.
[94] Since our last article, the report of the Committee appointed in
1858 to investigate the Health Department of the City of New York has
appeared, and we find that our statements regarding the frequency of the
crime in the metropolis are fully corroborated. Not merely are additional
official statistics on this point given (pp. 182, 183), but valuable
testimony from Drs. Griscom (pp. 25, 30), McNulty (p. 55), Francis
(p. 64), and Bulkley (p. 133). Dr. Reese’s paper on Infant Mortality,
republished by the Committee (pp. 90-100), from the Transactions of the
American Medical Association for 1857, also contains incidental reference
to the frequency of abortion, and for its direct and earnest dealing with
the subject deserves unqualified commendation.
In this connection we would call attention to the evidence of the extent
of the crime in Boston, afforded since our own remarks upon that point
were in type, by Dr. Walter Channing. (Boston Med. and Surg. Journal,
March 17, 1859.)
[95] Annales d’Hygiène Publique, 1856, p. 122.
[96] Les Consummations, etc.
[97] Comptes Rendus Annuels, etc.
[98] MAYER, Des Rapports Conjugaux, considérés sous le triple point de
vue de la population, de la santé et de la morale publique. Paris, 1857.
[99] CANGIAMILA, Embryologia Sacra, p. 15.
[100] In verification of this statement I am enabled to quote from the
last authorized edition of the Canon Laws of the Church of Rome. “Omnes,
qui abortûs seu fœtûs immaturi, tam animati quam inanimati, formati vel
informis, ejectionem procuraverint, pœnas propositas et inflictas tam
divino quam humano jure, ac tam per canonicas sanctiones et apostolicas
constitutiones quam civilia jura adversus veros homicidas incurrere,
hâc nostrâ perpetuo valiturâ constitutione statuimus et ordinamus.”
REIFFENSTUELL, Jus Canonicum Universum, tome iii. Paris, 1854.
[101] Decreta Synodi plenariæ Episcoporum Hiberniæ, apud Thurles habitæ
anno 1850. Art. de Baptismo, p. 20.
[102] Dublin Review, April, 1858, p. 100.
[103] DEVENTER, 1734, p. 366; STERNE, Tristram Shandy, p. 54; Med. Times
and Gazette, Aug., 1858, p. 196. Though the fact of this decision has
been doubted, it is nevertheless strictly true. Through the kindness
of Bishop Fitzpatrick I have been favored with a copy of BARRY’s
Medico-Christian Embryology, as presenting upon this point the authorized
and generally received doctrine of the Catholic Church. I quote the
following from the chapter “On Baptism in Impracticable and Difficult
Labors:”
“In case of impacted head and at all times that one is obliged to apply
the forceps, whether at one of the straits or in the pelvic excavation,
it becomes necessary to baptize the child on the part which presents at
the uterine orifice after the rupture of the bag containing the waters.
“In order to baptize the child, a syringe charged with natural water may
be used. If this be not at hand, a person may use a sponge, or a linen or
cotton rag, wetted with water, which is to be carried to the child by the
fingers, a pair of forceps, or any other suitable contrivance, and then
squeezed or pressed on the surface of the part presenting.” (Loc. cit.,
p. 45.)
“Any person, whether man, woman or child, may baptize an infant when in
danger of death.” (Ibid., p. 76.)
If the facts now stated should be generally known and acted upon by the
profession, hundreds of lives, infant and maternal, would annually be
saved.
[104] MS. Letter, dated Nov. 14th, 1858.
[105] It is not of course intended to imply that Protestantism, as such,
in any way encourages, or indeed permits, the practice of inducing
abortion; its tenets are uncompromisingly hostile to all crime. So
great, however, is the popular ignorance regarding this offence, that
an abstract morality is here comparatively powerless; and there can
be no doubt that the Romish ordinance, flanked on the one hand by the
confessional, and by denouncement and excommunication on the other, has
saved to the world thousands of infant lives.
[106] PASSOT, Des dangers de l’avortement provoqué dans un but criminel;
Gazette Méd. de Lyon, 1853.
[107] Ann. d’Hygiène, 1856, p. 147.
[108] DUBOIS and DEVERGIE, ibid., tome xix. p. 425; tome xxxix. p. 157.
[109] Ibid.
[110] Review of MONTGOMERY’s Signs of Pregnancy; The North American
Medico-Chirurgical Review, March, 1857, p. 249.
[111] Principles of Midwifery, p. 547.
[112] BAUDELOCQUE, tome i. p. 115; FODERE, ii. p. 17; MARC, Dict. de
Méd., i. p. 228; MONTGOMERY, Signs of Pregnancy, p. 578; DEVERGIE, Méd.
Légale, i. p. 244.
[113] RYAN, p. 267; TARDIEU, loc. cit.
[114] CLARKE, Trans. of Soc. for Impr. of Med.-Chir. Knowledge, iii. p.
290; BAUDELOCQUE, i. p. 123, note; LEROUX, Traité des Pertes, Obs. xiii.
p. 25; MONTGOMERY, loc. cit., p. 618.
[115] GARDNER, of New York, note to TYLER SMITH’s Lectures on Obstetrics,
p. 203.
[116] Am. Journ. of the Med. Sciences, April, 1859. In the instance
referred to, the cervix had been deeply and extensively lacerated,
forceps having been used in four previous labors; while depressions
existing between the old cicatrices and half filled and ragged with
clots, were decidedly suggestive of punctured wounds. The true nature of
the case was rendered evident by its past history, and corroborated by
the fact that the patient was a Catholic; the latter being a point to
which I am inclined to attach much importance, for reasons already given.
[117] Practical Treatise, p. 275.
[118] RYAN, Med. Jurisprudence, p. 282.
[119] ROSCOE, Law of Evidence, 242.
[120] ARCHBOLD, Crim. Pleading, 491; 1 HALE, 455.
[121] DAVIS, Crim. Justice, 482.
[122] DAVIS, Crim. Justice, 483.
[123] Reg. _v._ Haynes; Reg. _v._ Goodall; Rex _v._ Phillips.
[124] Med. Times and Gazette, Jan., 1856, p. 611.
[125] “This operation must not on any account be undertaken without the
sanction, and in the presence, of another practitioner.”—CLAY, Hand-book
of Obstetric Surgery, p. 13.
[126] 1 GABBETT, Cr. Law, 523.
[127] Loc. cit.
[128] CHEVALIER and DEVERGIE, Ann. d’Hyg., 1856, p. 157.
[129] Med. Jurisp.; Griffith’s ed., p. 472, Hartshorne’s ed., p. 378.
[130] TARDIEU, loc. cit., 1856, p. 124.
[131] A Woman’s Thoughts about Women. By the author of “John Halifax,
Gentleman.” 1858, p. 14.
[132] Loc. cit.
[133] Ibid.
[134] Mass. Laws of 1847, chap. 83.
[135] “By imprisonment in the State prison, house of correction, or
common jail, not more than three years, or by fine not exceeding one
thousand dollars.”
[136] Opera omnia. Ed. 1655, i., p. 643.
[137] JÖRG of Leipsic, who speaks of the human fœtus as “only a higher
species of intestinal worm, not endowed with a human soul, nor entitled
to human attributes.”
[138] SIMPSON, Obst. Works, i. pp. 352, 404.
[139] Boston Med. and Surg. Journal, January, 1857, p. 462.
[140] The immorality of craniotomy, where delivery can be effected by
any other method, is gradually becoming acknowledged in Great Britain. A
late discussion on this subject, at the Obstetric Society of London, is
reported in the Medical Times and Gazette for February, 1859.
[141] CLAY, Obstetric Surgery, p. 68.
[142] SINCLAIR and JOHNSTON, Practical Midwifery, 1858. 130 cases of
craniotomy in 13,748 labors.
[143] CLAY, Loc. cit., p. 69.
[144] The subject of justifiable craniotomy has of late been ably though
controversially discussed by an anonymous writer (Dublin Review, April
and October, 1858,) and Dr. Churchill (Dublin Quarterly Journal of
Medical Science, August and November, of the same year). Care must be
taken, lest in assenting to the decided and imperative necessity of the
operation in certain cases, and by a natural professional sympathy, too
great frequency is not allowed to this most horrible and appalling of all
the operations to which as physicians we can ever be called.
[145] Review of CLAY’s Obstetric Surgery; Boston Med. and Surg. Journal,
November, 1856, p. 283.
[146] Theory and Practice of Midwifery, p. 348.
[147] De jure vitæ et necis quod competit medico in partu. Heidelberg,
1826.
[148] “Where one only can by any possibility be preserved, the female
herself may use her right of self-preservation and choose whether her own
life or that of her child shall fall a sacrifice.” GUY, Principles of
Forensic Medicine, p. 145.
[149] Guy’s Hospital Reports, 1856, p. 12.
[150] Dublin Quarterly Journ. of Med. Science, August, 1858, p. 10.
[151] RADFORD, British Record of Obst. Medicine, 1848, p. 84.
[152] The rules of the Catholic Church upon this point have been already
referred to. Suffice it to say, further, that while they enjoin the
Cæsarean and vaginal sections, in preference to craniotomy and in cases
of extra-uterine fœtation, yet turning, the use of forceps, and the
induction of premature labor, where such are indicated, are distinctly
allowed by them. BARRY, Medico-Christian Embryology, pp. 41, 44, 45, 60.
[153] Guy’s Hosp. Reports, 1856, p. 4.
[154] For a full discussion of the respective merits of the several
methods instanced above, see SIMPSON, loc. cit., i. p. 738.
I have lately contrived an instrument very similar to one not long
since proposed by Spencer Wells for dilatation of the female urethra,
which by a simple combination of the three principles involved, will
probably prove of material service in the induction of premature labor.
It may be called the uterine dilator, as it possesses many advantages
over expansible tents for all cases of uterine disease where dilatation
is necessary, either for diagnosis or treatment. A description of the
instrument, and of its first application to obstetric practice, is
published in the current number of the American Journal of the Medical
Sciences.
[155] Bulletin de l’Académie, xvii. p. 364.
[156] British Record, etc., p. 82.
[157] I have elsewhere discussed this subject; American Journal of the
Medical Sciences, January, 1859.
[158] Enchiridion Medicum, p. 510.
[159] Question d’Embryologie Médicale, etc.; Revue de l’Amérique et de
l’Ouest, 1846.
[160] JOAN. RIOLAN., Anthropographia, lib. vi. cap. vii. p. 589.
[161] CHURCHILL, Dublin Quarterly Journ. of Med. Science, August, 1858,
p. 22.
[162] A case in point has been reported by the writer; Amer. Journ. of
the Med. Sciences, April, 1859.
[163] Reports to the Suffolk Dist. Med. Society of Massachusetts, 1857,
and to the American Medical Association, 1859.
[164] “It would in my opinion,” says Ramsbotham, referring to the nature
of fœtal existence, “be much better not to endeavor to explain the
secrets of nature, so deeply hidden.”—(Obst. Medicine and Surgery, p.
309.) This belief seems still, in practice, very widely entertained.
[165] CLAY, Obstetric Retrospect, March, 1848, p. 44.
[166] Medical Communications of the Mass. Med. Soc., 1858, p. 77.
The writer having been a member of this committee, here enters, as he has
already done by letter to the councillors of the Society, his earnest
protest against the plainly erroneous opinion avowed in that report,
which was presented and accepted during his absence from the State.
By the laws of Massachusetts, the offence is considered as mainly against
the person of the mother. In case of her death, already sufficiently
provided for at common law, convictions can be effected, with great
difficulty, under the statute,—as has twice occurred the present year, in
the cases of Jackson and Brown; but hardly otherwise.
[167] In this connection honorable mention is due Drs. TATUM and JOYNES,
of Virginia, for their papers on “The Attributes of the Impregnated
Germ,” and “Some of the Legal Relations of the Fœtus in Utero” (Virginia
Medical Journal, 1856.) Through the agency of the latter of these
gentlemen, an important modification has been made in the law of the
State; as has also been effected in Wisconsin, by Dr. BRISBANE.
[168] For valuable information in this connection, I am indebted to many
friends, more particularly to Drs. THAYER, of New Hampshire, PHELPS, of
Vermont, CHAS. HOOKER, of Connecticut, BLATCHFORD, of New York, WOOD, of
Pennsylvania, THOMPSON, of Delaware, WROTH, of Maryland, BRAINARD, of
Illinois, CAMERON, of Indiana, LELAND, of Michigan, LE BOUTILLIER, of
Minnesota, BRISBANE, of Wisconsin, POPE, of Missouri, HOYT, of Tennessee,
HAXALL and JOYNES, of Virginia, SEMMES, of District of Columbia, DICKSON,
of North Carolina, LOPEZ, of Alabama, BARTON, of Louisiana, (now of
South Carolina,) and to my relatives, WOODBURY and BELLAMY STORER,
Esqrs., of Maine and Ohio, and JAMES M. KEITH, Esq., of Boston, late
District-Attorney for Norfolk and Plymouth Counties. In every instance,
however, verification of the statutes has been made from copies in the
State Library of Massachusetts.
[169] DAVIS, Criminal Justice, p. 482.
[170] 1 Commentaries, 129.
[171] Ibid.
[172] 43 George III., c. 58.
[173] 9 Geo. IV., c. 31; 10 Geo. IV., c. 34.
[174] 7 William IV.; 1 Vict., c. 85.
[175] To this list may also be added the Territory of Washington.
[176] The Territory of Kansas belongs to the above group.
[177] Compiled Statutes of Connecticut, 1854, p. 307.
[178] Revised Code of Mississippi, 1857, chap. 64, p. 601.
[179] Digest of Statutes of Arkansas, 1848, chap. 51, p. 325.
[180] Revised Statutes of Minnesota, 1851, chap. 100, p. 493.
[181] Statutes of Oregon, 1855, chap. 3, p. 310.
[182] Revised Statutes of Maine, 1857, chap. 124, p. 685.
[183] The above should evidently read “the first two sections,” to be
possible.
[184] Compiled Statutes of New Hampshire, 1853, chap. 227, p. 544.
[185] Revised Statutes of New York, 1852, ii. pp. 847, 876. The last
section of this statute does not require proof of pregnancy.
[186] Revised Statutes of Ohio, 1854, chap. 162, p. 296.
[187] Compiled Laws of Michigan, 1857, vol. ii. chap. 180, p. 1509. The
statute of the Territory of WASHINGTON is very similar to those above.
“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, shall, in case the death of such child or of such
mother be thereby produced, on conviction thereof, be imprisoned in the
penitentiary not more than twenty years, nor less than one year.
“Every person who shall administer to any pregnant woman, or to any
woman whom he supposes to be pregnant, any medicine, drug, or substance
whatever, or shall use or employ any instrument, or other means, thereby
to procure the miscarriage of such woman, unless the same is necessary
to preserve her life, shall, on conviction thereof, be imprisoned in the
penitentiary not more than five years, nor less than one year, or be
imprisoned in the county jail not more than twelve months, nor less than
one month, and be fined in any sum not exceeding one thousand dollars.”
Statutes of the Territory of Washington, 1855, p. 81.
[188] Compiled Statutes of Vermont, 1850, chap. 108, p. 560.
[189] Supplement to the Revised Statutes of Massachusetts, 1849, p. 322.
[190] Statutes of Illinois, 1858, vol. i. p. 381.
[191] Revised Statutes of Wisconsin, 1858, chap. 169, sect. 58. It will
be noticed that the second section of the above statute differs from the
first, in not requiring the proof of pregnancy.
[192] Code of Virginia, 1849, chap. 191, p. 724.
[193] Revised Statutes of Missouri, 1856, i. chap. 50, p. 567.
[194] Code of Alabama, 1852, sect. 3230, p. 582.
[195] Revised Statutes of Louisiana, 1856, p. 138. By its wording, this
statute might be forced into the next division.
[196] I insert this clause not merely for its relation to the points we
are now considering, but for its important bearing on the broad question
of infanticide during labor; concerning which it stands in bold and
direct antagonism to all the rulings of the common law in this country
and abroad. In other respects also, though not faultless, the Texas
statute is rationally and admirably drawn.
[197] Penal Code of Texas, 1857, p. 103.
[198] Digest of Laws of California, 1857, art. 1905, p. 334. The statute
of the Territory of KANSAS, similar to the above, is as follows:—
“Every physician or other person who shall willfully administer to any
pregnant woman, any medicine, drug, or substance whatever, or shall use
or employ any instrument or 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 a county jail not exceeding one year, or by fine not
exceeding five hundred dollars, or by both such fine and imprisonment.”
Statutes of Kansas, 1855, chap. 48, p. 243.
[199] We have already commented upon the phraseology of the Louisiana
statute. The latitude of its first clause is shown by the context to
have been unintentional, and therefore hardly justifies a change in
its classification. The second section of the Statute of Washington
Territory, however, is closely analogous to that now given; while the
final sections of the statutes both of New York and Wisconsin, which make
it penal for a woman voluntarily to effect or submit to the unjustifiable
induction of abortion, are equally silent regarding proof of the
existence of pregnancy.
[200] Revised Statutes of Indiana, 1852, p. 437.
[201] Rex _vs._ Phillips, 3 CAMPBELL, 77; RUSSELL, Crim. Law, 553-4; 1
GABBETT, Crim. Law, 522; 1 BISHOP, Crim. Law, 386.
[202] State _vs._ Cooper, 2 ZABRISKIE, 52, 57; Rex _vs._ Russell, 1
MOODY, 356, 360.
[203] Regina _vs._ Wycherley, 8 CARRINGTON and PAYNE, 265.
[204] The People _vs._ Jackson, 3 HILL, N. Y. Reports, 92; WHARTON,
Criminal Law, 98.
[205] DAVIS, Crim. Justice, 484.
[206] WHARTON, Amer. Crim. Law, 424.
[207] WHARTON, Amer. Crim. Law, 75.
[208] The State _vs._ Vawter, 7 BLACKFORD, 592.
[209] 1 GABBETT, Crim. Law, 523; ARCHBOLD, P. A., lxx, 2.
[210] ROSCOE, L. E., 242; Eng. Com. L. Rep., xxv. 453; Rex _vs._ Coe, 6
CAR. & P., 403; Vaughan, 13.
[211] 1 BISHOP, Crim. Law, 527.
[212] In Massachusetts, though the statute is silent on these points, it
is asserted that whenever a potion is given, or other means are used, by
“a surgeon,” for the purpose of saving the life of the woman, the case
is free of malice, and has a lawful justification. DAVIS, Crim. Justice,
282; Report of the Criminal Law Commissioners, 1844, Causing Abortion,
I., note _a_.
[213] After a little reflection, it will be seen that this word is not so
open to objection as might at first be supposed.
[214] 1 RUSSELL, Crimes, 671; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,
C. B., s. 16; 1 HALE, 434; 1 EAST, P. C., 90; 3 CHITTY, Crim. Law, 798;
WHARTON, Crim. Law, 537.
[215] DAVIS, Crim. Justice, 486.
[216] ARCHBOLD, Crim. Pleading, 490.
[217] Regina _vs._ Trilloe, 2 MOODY, C. C., 260, 413.
[218] The State _vs._ Cooper, 2 ZABRISKIE, 52; HANES, U. S. Digest, 5.
[219] The Commonwealth _vs._ Parker, 9 METCALF, 263; The Commonwealth
_vs._ Bangs, 9 Mass., 387; The State _vs._ Cooper, 2 ZABRISKIE, 57;
HANES, U. S. Digest, 5; Smith _vs._ State, 33 MAINE, (3 RED.) 48.
[220] BISHOP, Crim. Law, 386; Mills _vs._ The Commonw., 1 HARRIS, Pa.,
631, 633.
[221] WHARTON, Crim. Law of the U. S., 537.
[222] 1 RUSSELL, Crimes, 661; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,
c. 13, s. 16; BRACTON, 1. 3, c. 21.
[223] BAC. Ab., tit. Infants.
[224] 2 VERNON, 710.
[225] Doe _vs._ Clark, 2 H. Bl., 399; 2 VESEY, jr., 673; Thellusson _vs._
Woodford, 4 VESEY, 340; Swift _vs._ Duffield, 6 SERG. & RAWLE, 38.
[226] FEARNE, 429.
[227] 2 VERNON, 710; The Commonwealth _vs._ Demain, 6 Penn. Law Journ.,
29; BRIGHTLY, 441.
[228] 1 HALE, 90; The Commonw. _vs._ Chauncey, 1 ASHMEAD, 227; Smith
_vs._ State, 33 MAINE, (3 RED.) 48.
[229] Ibid.; HANES, U. S. Digest, 5.
[230] WHARTON, Law of Homicide, 44.
[231] The Commonw. _vs._ Parker, 9 METCALF, 263, 265; DAVIS, Crim.
Justice, 281.
[232] 1 BLACKSTONE, 129; Rex _vs._ Senior, 1 MOODY, C. C., 346; 3 Inst.,
50; WHARTON, C. L., 537; Ibid., Law of Homicide, 93.
[233] Rex _vs._ West, 2 CARR. & KIR., 784; 1 BISHOP, C. L., 255; WHARTON,
Law of Homicide, 93.
[234] Rex _vs._ Scudder, 1 MOODY, 216, 3 CAR. & P., 605, overruling Rex
_vs._ Phillips, 3 CAMPBELL, 73; RUSSELL, Cr., 763, note.
[235] If made without her consent?
[236] Regina _vs._ Goodchild, 2 CAR. & KIR., 293; Rex _vs._ Goodhall, 1
DEN. C. C., 187; 3 CAMPBELL, 76.
[237] 1 BISHOP, Crim. Law, 518.
[238] 1 BISHOP, Crim. Law, 385.
[239] WHARTON, Crim. Law, 541.
[240] 1 HARRIS, Pa., 631, 633.
[241] LEE, Note to Guy’s Principles of Forensic Medicine, p. 134.
[242] BECCARIA, Crimes and Punishments, 104.
[243] “An efficient, and practical remedy for the prevention of this
crime would be a law requiring the causes of death to be certified by
the physician in attendance, or where there has been no physician, by
one called in for the purpose. In this way the cause of death, both in
infants and mothers, could be traced to attempts to procure abortion. In
three cases which occurred in Boston, in 1855, the death was reported by
friends to be owing to natural causes, and in each it was subsequently
ascertained that the patient died in consequence of injuries received
in procuring abortion. It is probable that such cases are by no means
rare; and if the cause of death were known, an immediate investigation
might lead to the detection of the guilty party.” (Boston Med. and Surg.
Journal, Dec., 1857, p. 365.)
[244] Register of the Morgue.
[245] From 1846 to 1850, 188 cases of criminal abortion were discovered
in Paris, but for want of proof, only 22 of them were sent to trial.
(Comptes Rendus Ann. de la Justice Criminelle.)
[246] Report on the Medico-legal duties of Coroner. 1857.
[247] RADFORD, British Record of Obstetric Medicine, vol. i. p. 55.
[248] WHARTON, Criminal Law, 540.
[249] Smith _vs._ The State, 33 MAINE, (3 RED.) 48.
[250] Rex _vs._ Phillips; Regina _vs._ Goodall; Reg. _vs._ Haynes, etc.
[251] TAYLOR, Med. Jurisprudence, p. 386.
[252] PERCIVAL, Medical Ethics, p. 84.
[253] Ibid., p. 85.
[254] Loc. cit., article 317.
[255] Report to Suffolk District Med. Society, May, 1857, p. 12.
[256] In this connection, I cannot too strongly deprecate a practice that
has lately been proposed, the detection, namely, of the early existence
of pregnancy by the administration of ergot. (Boston Med. and Surg.
Journal, April, 1859, p. 197.) The use of ergot for this purpose, in
however small a dose, would seem utterly unjustifiable.
[257] Fifteenth Massachusetts Registration Report, 1857, p. 199.
[258] QUETELET, Theory of Probabilities, p. 234.
[259] New York Med. Gazette, Editorial; London Medical Times and Gazette,
1850, p. 487.
[260] Boston Med. and Surg. Journal, Editorial, 1855, p. 411.
[261] DEAN, Medical Jurisprudence, p. 139.
[262] Boston Med. and Surg. Journal, Editorial, Dec. 13, 1855.
[263] American Medical Gazette, Editorial, July, 1857, p. 390.
[264] Ibid., April 1859, p. 289.
[265] Maine Med. and Surg. Reporter, Editorial, June, 1858, p. 39.
[266] DEVILLE, Researches on the proportion of still-born children
compared with the mortality of the City of Paris during the thirteen
years, 1846-58. Memoirs of the French Academy, 1859.
[267] New Hampshire Journal of Medicine, Editorial, July, 1857, p. 216.
[268] London Lancet, Editorial, July, 1858, p. 66.
[269] TATUM, Virginia Med. Journal, June, 1856, p. 457.
[270] Loc. cit., p. 19.
[271] The Councillors of the Massachusetts Medical Society. Proceedings
of the Society, 1858, p. 77.
[272] PHILLIPS, On Evidence, i. p. 135; RYAN, Medical Jurisprudence, p.
193; STORER, Sen., Introductory Address, 1855, p. 10; SIMPSON, Physicians
and Physic, p. 31.
[273] Proceedings of the Society, 1858.
[274] Man Transformed. Oxford, 1653.
[275] “_Resolved_, That while physicians have long been united in
condemning the procuring of abortion, at every period of gestation,
except as necessary for preserving the life of either mother or child,
it has become the duty of this Association, in view of the prevalence
and increasing frequency of the crime, publicly to enter an earnest and
solemn protest against such unwarrantable destruction of human life.
“_Resolved_, That in pursuance of the grand and noble calling we
profess,—the saving of human life,—and of the sacred responsibilities
thereby devolving upon us, the Association present this subject to the
attention of the several legislative assemblies of the Union, with the
prayer that the laws by which the crime of abortion is attempted to be
controlled may be revised, and that such other action may be taken in the
premises as they in their wisdom may deem necessary.
“_Resolved_, That the Association request the zealous co-operation of
the various State medical societies in pressing this subject upon the
legislatures of their respective States, and that the president and
secretaries of the Association are hereby authorized to carry out, by
memorial, these resolutions.”—_Transactions of the Am. Med. Association_,
1859, vol. xii. p. 75.
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