“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]