On criminal abortion in America

by Horatio Robinson Storer

Whether to cause, or to attempt, abortion before quickening is a penal offence at common law, has been differently decided. In several of the States, as Maine, Massachusetts, and New Jersey, it has been ruled by the Supreme Court not to be indictable, even as an assault, if done with the consent of the woman; on the ground that only in case of high crimes is the person assaulted incapable of assenting.[219] The Pennsylvania court, however, has discarded this doctrine, and has decided that the moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated.[220]

The distinction alluded to with regard to quickening, is allowed by an acknowledged legal authority[221] to be at open variance not only with medical experience, but with all other principles of the common law.[222] The civil rights of an infant in utero are respected equally throughout gestation; at every stage of which process, no matter how early, it may be appointed executor,[223] is capable of taking as legatee[224] or under a marriage settlement,[225] may take specifically as “a child” under a general devise,[226] and may obtain an injunction to stay waste.[227]

When, in an attempt to procure an abortion, there is an evident intent to produce the death of the mother, and her death does actually occur, such attempt becomes murder at common law;[228] but when nothing more is intended than to commit the misdemeanor, it is only manslaughter,[229] being an instance of homicide from individual malice toward a third party, when the fatal blow falls on the deceased by mistake. It has been said, however, that this last is not the true doctrine, the destruction of an infant in utero being, even at common law, in some respects felonious, and the act in its nature malicious and deliberate, and necessarily attended with danger to the person on whom it is performed.[230]

The use of violence upon a woman, with an attempt to produce her miscarriage without her consent, rules Chief Justice Shaw, of Massachusetts, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt, the death of the mother ensues, the party making such an attempt, with or without her consent, is guilty of murder, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where in like manner there is the consent of the parties.[231]

Though to kill the fœtus in utero is as such, by the common law, no murder, yet if it be born alive, and die subsequently to birth from the wounds it received in the womb, or from the means used to expel it, the offence becomes murder in those who cause or employ them.[232] If a person, intending to procure abortion, does an act which causes the child to be born earlier than its natural time, and therefore in a state much less capable of living, and it afterwards die in consequence of such premature exposure, the person who by this misconduct brings the child into the world, and puts it into a situation in which it cannot live, is guilty of murder, though no direct injury to the child be proved; and the mere existence of a possibility that something might have been done to prevent the death, does not lessen the crime.[233]

The earlier English statutes, from their peculiar phraseology, held pregnancy essential for the commission of the crime,[234] yet an attempt to produce abortion is now indictable at common law,[235] though it fail by reason of the woman being, in fact and contrary to the belief of the party, not pregnant.[236] For though as no man would attempt what he absolutely knew he could not in fact perform, nor would be deemed in law to have so attempted, and as every one being conclusively presumed to understand the law, no man can legally intend what is legally impossible, the rule as to facts is different; for men are not conclusively held by the law to know facts. And if a man fails in what he undertakes, because of an impossibility in fact, which he did not know, he is just as answerable as if the failure were from any other cause.[237]

We have seen the mistaken basis, as regards the criminality of abortion, on which the common law is founded, and that while it recognizes the distinct existence of the fœtus for civil purposes, it here considers its being as totally engrossed in that of the mother.

A recent authority thus accounts for and defends the mistake. The wealth and prosperity of the country, it is assumed, and the growth and efficiency of its population, are alike matters of general concern, and therefore the law takes them under its care. As to population, there are in civil jurisprudence such rules, as that the husband may hold the lands of his deceased wife during his life, if before her death a living child was born, but not otherwise; the law thus offering, in effect, a reward for issue. It does not compel matrimony, because that would be an infringement of private rights; but for the same end, it does punish abortions.[238]

Another writer has also implied that the common law, in making fœticide penal, had in view the great mischiefs which would result from even its qualified toleration: namely, the removal of the chief restraint upon illicit intercourse, and the shocks which would be sustained thereby by the institution of marriage and its incidents; among which the delicacy of women.[239]