On criminal abortion in America

by Horatio Robinson Storer

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.