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.