In view of these facts it is not surprising that the induction of abortion has been permitted and even encouraged in many civilizations. Its unqualified condemnation is only found in Christendom, and is due to theoretical notions. In Turkey, under ordinary circumstances, there is no punishment for abortion. In the classic civilization of Greece and Rome, likewise, abortion was permitted though with certain qualifications and conditions. Plato admitted the mother's right to decide on abortion but said that the question should be settled as early as possible in pregnancy. Aristotle, who approved of abortion, was of the same opinion. Zeno and the Stoics regarded the fœtus as the fruit of the womb, the soul being acquired at birth; this was in accordance with Roman law which decreed that the fœtus only became a human being at birth.[[438]] Among the Romans abortion became very common, but, in accordance with the patriarchal basis of early Roman institutions, it was the father, not the mother, who had the right to exercise it. Christianity introduced a new circle of ideas based on the importance of the soul, on its immortality, and the necessity of baptism as a method of salvation from the results of inherited sin. We already see this new attitude in St. Augustine who, discussing whether embryos that died in the womb will rise at the resurrection, says "I make bold neither to affirm nor to deny, although I fail to see why, if they are not excluded from the number of the dead, they should not attain to the resurrection of the dead."[[439]] The criminality of abortion was, however, speedily established, and the early Christian Emperors, in agreement with the Church, edicted many fantastic and extreme penalties against abortion. This tendency continued under ecclesiastical influence, unrestrained, until the humanitarian movement of the eighteenth century, when Beccaria, Voltaire, Rousseau and other great reformers succeeded in turning the tide of public opinion against the barbarity of the laws, and the penalty of death for abortion was finally abolished.[[440]]
Medical science and practice at the present day—although it can scarcely be said that it speaks with an absolutely unanimous voice—on the whole occupies a position midway between that of the classic lawyers and that of the later Christian ecclesiastics. It is, on the whole, in favor of sacrificing the fœtus whenever the interests of the mother demand such a sacrifice. General medical opinion is not, however, prepared at present to go further, and is distinctly disinclined to aid the parents in exerting an unqualified control over the fœtus in the womb, nor is it yet disposed to practice abortion on eugenic grounds. It is obvious, indeed, that medicine cannot in this matter take the initiative, for it is the primary duty of medicine to save life. Society itself must assume the responsibility of protecting the race.
Dr. S. Macvie ("Mother versus Child," Transactions Edinburgh Obstetrical Society, vol. xxiv, 1899) elaborately discusses the respective values of the fœtus and the adult on the basis of life-expectancy, and concludes that the fœtus is merely "a parasite performing no function whatever," and that "unless the life-expectancy of the child covers the years in which its potentiality is converted into actuality, the relative values of the maternal and fœtal life will be that of actual as against potential." This statement seems fairly sound. Ballantyne (Manual of Antenatal Pathology: The Fœtus, p. 459) endeavors to make the statement more precise by saying that "the mother's life has a value, because she is what she is, while the fœtus only has a possible value, on account of what it may become."
Durlacher, among others, has discussed, in careful and cautious detail, the various conditions in which the physician should, or should not, induce abortion in the interests of the mother ("Der Künstliche Abort," Wiener Klinik, Aug. and Sept., 1906); so also, Eugen Wilhelm ("Die Abtreibung und das Recht des Arztes zur Vernichtung der Leibesfrucht," Sexual-Probleme, May and June, 1909). Wilhelm further discusses whether it is desirable to alter the laws in order to give the physician greater freedom in deciding on abortion. He concludes that this is not necessary, and might even act injuriously, by unduly hampering medical freedom. Any change in the law should merely be, he considers, in the direction of asserting that the destruction of the fœtus is not abortion in the legal sense, provided it is indicated by the rules of medical science. With reference to the timidity of some medical men in inducing abortion, Wilhelm remarks that, even in the present state of the law, the physician who conscientiously effects abortion, in accordance with his best knowledge, even if mistakenly, may consider himself safe from all legal penalties, and that he is much more likely to come in conflict with the law if it can be proved that death followed as a result of his neglect to induce abortion.
Pinard, who has discussed the right to control the fœtal life (Annales de Gynécologie, vols. lii and liii, 1899 and 1900), inspired by his enthusiastic propaganda for the salvation of infant life, is led to the unwarranted conclusion that no one has the rights of life and death over the fœtus; "the infant's right to his life is an imprescriptible and sacred right, which no power can take from him." There is a mistake here, unless Pinard deliberately desires to place himself, like Tolstoy, in opposition to current civilized morality. So far from the infant having any "imprescriptible right to life," even the adult has, in human societies, no such inalienable right, and very much less the fœtus, which is not strictly a human being at all. We assume the right of terminating the lives of those individuals whose anti-social conduct makes them dangerous, and, in war, we deliberately terminate, amid general applause and enthusiasm, the lives of men who have been specially selected for this purpose on account of their physical and general efficiency. It would be absurdly inconsistent to say that we have no rights over the lives of creatures that have, as yet, no part in human society at all, and are not so much as born. We are here in presence of a vestige of ancient theological dogma, and there can be little doubt that, on the theoretical side at all events, the "imprescriptible right" of the embryo will go the same way as the "imprescriptible right" of the spermatozöon. Both rights are indeed "imprescriptible."
Of recent years a new, and, it must be admitted, somewhat unexpected, aspect of this question of abortion has been revealed. Hitherto it has been a question entirely in the hands of men, first, following the Roman traditions, in the hands of Christian ecclesiastics, and later, in those of the professional castes. Yet the question is in reality very largely, and indeed mainly, a woman's question, and now, more especially in Germany, it has been actively taken up by women. The Gräfin Gisela Streitberg occupies the pioneering place in this movement with her book Das Recht zur Beiseitigung Keimenden Lebens, and was speedily followed, from 1897 onwards, by a number of distinguished women who occupy a prominent place in the German woman's movement, among others Helene Stöcker, Oda Olberg, Elisabeth Zanzinger, Camilla Jellinek. All these writers insist that the fœtus is not yet an independent human being, and that every woman, by virtue of the right over her own body, is entitled to decide whether it shall become an independent human being. At the Woman's Congress held in the autumn of 1905, a resolution was passed demanding that abortion should only be punishable when effected by another person against the wish of the pregnant women herself.[[441]] The acceptance of this resolution by a representative assembly is interesting proof of the interest now taken by women in the question, and of the strenuous attitude they are tending to assume.
Elisabeth Zanzinger ("Verbrechen gegen die Leibesfrucht," Geschlecht und Gesellschaft, Bd. II, Heft 5, 1907) ably and energetically condemns the law which makes abortion a crime. "A woman herself is the only legitimate possessor of her own body and her own health.... Just as it is a woman's private right, and most intimate concern, to present her virginity as her best gift to the chosen of her heart, so it is certainly a pregnant woman's own private concern if, for reasons which seem good to her, she decides to destroy the results of her action." A woman who destroys the embryo which might become a burden to the community, or is likely to be an inferior member of society, this writer urges, is doing a service to the community, which ought to reward her, perhaps by granting her special privileges as regards the upbringing of her other children. Oda Olberg, in a thoughtful paper ("Ueber den Juristischen Schutz des Keimenden Lebens," Die Neue Generation, June, 1908), endeavors to make clear all that is involved in the effort to protect the developing embryo against the organism that carries it, to protect a creature, that is, against itself and its own instincts. She considers that most of the women who terminate their pregnancies artificially would only have produced undesirables, for the normal, healthy, robust woman has no desire to effect abortion. "There are women who are psychically sterile, without being physically so, and who possess nothing of motherhood but the ability to bring forth. These, when they abort, are simply correcting a failure of Nature." Some of them, she remarks, by going on to term, become guilty of the far worse offence of infanticide. As for the women who desire abortion merely from motives of vanity, or convenience, Oda Olberg points out that the circles in which these motives rule are quite able to limit their children without having to resort to abortion. She concludes that society must protect the young life in every way, by social hygiene, by laws for the protection of the workers, by spreading a new morality on the basis of the laws of heredity. But we need no law to protect the young creature against its own mother, for a thousand natural forces are urging the mother to protect her own child, and we may be sure that she will not disobey these forces without very good reasons. Camilla Jellinek, again (Die Strafrechtsreform, etc., Heidelberg, 1909), in a powerful and well-informed address before the Associated German Frauenvereine, at Breslau, argues in the same sense.
The lawyers very speedily came to the assistance of the women in this matter, the more readily, no doubt, since the traditions of the greatest and most influential body of law already pointed, on one side at all events, in the same direction. It may, indeed, be claimed that it was from the side of law—and in Italy, the classic land of legal reform—that this new movement first begun. In 1888, Balestrini published, at Turin, his Aborto, Infanticidio ed Esposizione d'Infante, in which he argued that the penalty should be removed from abortion. It was a very able and learned book, inspired by large ideas and a humanitarian spirit, but though its importance is now recognized, it cannot be said that it attracted much attention on publication.
It is especially in Germany that, during recent years, lawyers have followed women reformers, by advocating, more or less completely, the abolition of the punishment for abortion. So distinguished an authority as Von Liszt, in a private letter to Camilla Jellinek (op. cit.), states that he regards the punishment of abortion as "very doubtful," though he considers its complete abolition impracticable; he thinks abortion might be permitted during the early months of pregnancy, thus bringing about a return of the old view. Hans Gross states his opinion (Archiv für Kriminal-Anthropologie, Bd. XII, p. 345) that the time is not far distant when abortion will no longer be punished. Radbruch and Von Lilienthal speak in the same sense. Weinberg has advocated a change in the law (Mutterschutz, 1905, Heft 8), and Kurt Hiller (Die Neue Generation, April, 1909), also from the legal side, argues that abortion should only be punishable when effected by a married woman, without the knowledge and consent of her husband.
The medical profession, which took the first step in modern times in the authorization of abortion, has not at present taken any further step. It has been content to lay down the principle that when the interests of the mother are opposed to those of the fœtus, it is the latter which must be sacrificed. It has hesitated to take the further step of placing abortion on the eugenic basis, and of claiming the right to insist on abortion whenever the medical and hygienic interests of society demand such a step. This attitude is perfectly intelligible. Medicine has in the past been chiefly identified with the saving of lives, even of worthless and worse than worthless lives; "Keep everything alive! Keep everything alive!" nervously cried Sir James Paget. Medicine has confined itself to the humble task of attempting to cure evils, and is only to-day beginning to undertake the larger and nobler task of preventing them.