Frank Winthrop Draper, professor of legal medicine in Harvard University,[101] commenting on the Massachusetts law of October, 1903, cap. 212, secs. 15, 16, says: "It is important to recognize the fact that the law does not make any exception or formal recognition in favor of justifiable operations to procure premature labor. The statute is general in its application. It is, of course, obvious that the best sentiment of the medical profession and of obstetric teachers is favorable to interference of pregnancy, (1) whenever there is such anatomical deviation or mechanical obstruction in the mother's pelvis that the birth of a child is impossible; or (2) whenever the mother is suffering from such grave disease that her life is in imminent peril and can be saved only by the arrest of gestation. Under such conditions the physician is not only warranted in inducing premature labor, but is required to do so by a sense of duty to his patient, with a view thereby to save one life at least, and, if possible, the lives of both mother and offspring.
"Nevertheless, as the law now stands, a prudent practitioner will not expose himself to any risk, if a few precautions will save him. In the event of the death of the mother and child in such an emergency, the attending physician might find himself in jeopardy, with the imputation of gross carelessness and criminal neglect hanging over him, an imputation which requires years to remove. So the attending physician should never undertake to do an instrumental operation without these precautions: 1. The consent of the patient, with that of her husband or family. 2. Especially, a consultation with some other physician or physicians in whom there is full confidence. Attention to these simple and sensible safeguards, by making the conduct appear by its candor and openness in the strongest possible contrast with the secret methods of the abortionist, may save great embarrassment."
The ethics of this doctrine is, of course, absurd, as has been shown, and it is cited here only to show how the civil law considers abortion. Wharton and Stille[102] give the same information in a more technical manner. "It is a general rule," they say, "independent of statute, that the act of a physician in aiding a miscarriage is not unlawful, where the miscarriage was the inevitable result of other causes. And the act is justified where the circumstances were such as to induce in the mind of a competent person the belief that a miscarriage was necessary to preserve the life of the mother. And the statutes of many of the States penalize the causing, or attempting to cause, an abortion, unless necessary to preserve the life of the woman, or unless advised by a designated number of physicians to be necessary for such purpose, the absence of both the necessity and the advice being an essential ingredient in the crime. The physician by whom the deed is done, however, cannot act as his own adviser in the matter. And an indictment under the statute must not only allege that the act was not necessary to preserve the woman's life, but must also negative the advice of physicians; and such averments cannot be inserted as an amendment after demurrer.
"The burden of proof rests with the state to show that the means used were not necessary to preserve the life of the woman in question; and the absence of necessity may be determined from circumstantial evidence. But the burden of proof as to the advice of physicians would not fall within the rule controlling the production of proof as to negative matters in general, and would rest with the accused; though it may be proved by a preponderance of the evidence and need not be established beyond a reasonable doubt. But either that the act was necessary to preserve the life of another, or that it was advised by physicians to be necessary for that purpose, is of equally good defence; and the destruction of the child need not have been both necessary and advised by physicians. And statutes of this class apply only in cases in which the death of the mother could reasonably be expected to result from natural cause, unless the child was destroyed, and do not apply to a case in which the mother threatened suicide unless she was relieved from her trouble."
[CHAPTER VI]
Ectopic Gestation
Ectopic Gestation, called also extrauterine pregnancy, is gestation outside the uterus in the adnexa or the peritoneal cavity. Pregnancy in the horn of an abnormal or rudimentary uterus is classed with ectopic gestation because the effects are similar, although pregnancy at times in a rudimentary uterus goes on to term normally. The uterus is in the pelvic cavity, between the bladder and the rectum, and above the vagina, into which it opens. It is a hollow, pear-shaped, muscular organ, somewhat flattened, and about three inches long, two inches broad, and an inch thick. The fundus or base is upward, and the neck is downward. Passing horizontally out from the corners or horns of the uterus, which are at the fundus, are the two Fallopian tubes, one on either side. These are about five inches in length and somewhat convoluted. They are true tubes, opening into the uterus, and they are about one-sixteenth of an inch in diameter throughout the greater part of their extent. The ends farthest from the uterus are fringed and funnel-shaped; and this funnel end, called the Infundibulum or Fimbriated Extremity, opens into the abdominal or peritoneal cavity. Near the Fimbriated Extremity of each tube is an Ovary, an oval body about one and a half inches long by three-quarters of an inch in width. For convenience in description, each tube is divided into four parts: (1) the Uterine Portion, which is that part included in the wall of the uterus itself: it extends from the outer end of the horn into the upper angle of the uterine cavity, and its lumen is so small that it will admit only a very fine probe; (2) the Isthmus, or the narrow part of the tube which lies nearest the uterus: it gradually widens into the broader part called (3) the Ampulla; (4) the Infundibulum, or the funnel-shaped end of the Ampulla. One of the fimbriae, the Fimbria Ovarica, is longer than the others, and it forms a shallow gutter which extends to the ovary.