In none of these States is a standard of such justification established by the statute. In Maine, New York, Indiana, Alabama, Oregon, and the Territory of Washington, this is not even attempted. In Texas, the statute acknowledges “medical advice.” In Missouri, Mississippi, California, and the Territory of Kansas, the sanction of “a physician” is allowed as excuse; in Arkansas that of “a regular physician;” in New Hampshire, Ohio, Michigan, and Minnesota, “two physicians” may decide on its necessity; but in every one of these States, the word “or” stands engrossed upon the statute, and thereby the precaution is practically invalidated; which could not have been the case had the word “and” have been used instead.
The truth is, as we have seen, that when such latitude is allowed by the law, it is inevitably abused. Medical evidence, medical sanction, and medical performance are absolutely essential for excuse in every case; if the opinion of a single physician is allowed to be sufficient, an escape is afforded for all instances where this privilege has been dishonored; the word “regular” is much more liable to be misinterpreted than the word “competent;”[213] in every case before abortion can be justified, its necessity should previously have been decided and the possibility of crime thus prevented, by a consultation of at least two competent medical men.
We have pointed out many circumstances under which premature labor is demanded, by the rules of humanity and of medicine, for the sake of the mother’s life, and have seen that in several States it is for this cause allowed. But we have also shown that it is often equally necessitated for the sake of the child. In no State save Virginia is its justifiability for this purpose yet recognized by the statute law.
By the codes of most States, the mother is not punishable, however directly implicated in the crime. New Hampshire, New York, and Wisconsin, are apparently the only exceptions to this statement; the last two of them also not requiring proof of pregnancy for conviction, while by implication New Hampshire does.
By the statute of Indiana, all other women equally with the mother would seem released from prosecution, the word “he” being used of the persons indictable. The same oversight is noticed in the first section of the statute of Texas.
Objections were formerly made, especially in England, to the severity of the penalties then inflicted, (death in case of quickening, transportation or long imprisonment otherwise,) on the erroneous ground that this severity was wholly disproportionate to the guilt of the offence, and that, therefore, juries did not convict. The mistaken character of this supposition is shown by abundant proof in this country. In many States the penalties of the law are absurdly insignificant, tending, equally with the uncertainty of their infliction, to encourage the crime, and yet the same difficulties of conviction prevail. The true nature of these difficulties we have endeavored in great measure to explain, and we think it will have appeared that however numerous and serious they may be, they are yet not insuperable.
Before concluding this subject, it is proper that we examine more fully into the doctrine of the common law, to understand more precisely its meaning. In so doing, we shall quote freely from the leading authorities of the day, especially those of this country.
The destruction of an unborn child is not at the present day murder at the common law, though such was formerly the case;[214] to constitute which crime, the person killed must at the time of death have been alive,[215] as we have shown the fœtus to be from the time of conception, and “a reasonable creature in being,”[216] a quality in this connection denied to the child by the law, though in all other relations it inconsistently allows and affirms it; as it does also, and always, from the moment of birth, even though the funis is undivided and the placenta still attached.[217]
To cause abortion after quickening, is not, as such, murder or manslaughter at common law, but a high misdemeanor.[218]