On criminal abortion in America

by Horatio Robinson Storer

The establishment of foundling hospitals, by the State governments, has been urged as a preventive of the crime, and, on the other hand, fears have been expressed lest the same means should increase it. For ourselves, however, and from some experience in such cases, we believe that these fears are groundless, and that with equal justice might they be entertained of every large charity having for its end the improvement, sanitary or otherwise, of the masses of society.

We have quoted a statute existing in Massachusetts, though practically unenforced, against one great agent in the increase of abortion, an abuse of its license by the public press. Were such laws to become general, and to be faithfully executed, and were it also made penal to sell any drug, popularly known as emmenagogue, except as advised by physicians, just as the sale of direct poisons is, or should be, controlled by law, the present system of openly advertising by abortionists would undoubtedly be brought to a close.

In no matter is it of more importance than in cases of suspected criminal abortion, that coroners should be intelligent and well educated medical men; and we could wish that this point might have received especial attention from Dr. Semmes, in his late admirable report to the American Medical Association.[246] In the sudden excitement of an inquest, the guilty are more likely than at a later period to be off their guard, and evidence may often be elicited at this time, which, at the subsequent trial, it would be impossible to obtain. There can be no question of the importance of this point; the coroner should be skilled in all that pertains to obstetric jurisprudence; and if similar knowledge were more generally possessed by other officers of justice, attorney, juror, and judge, a far greater number of convictions, under a proper law, would be secured.

As regards the more direct statutes, we have already considered their important points.

“In order to render laws effectually preventive,” has wisely been said, “they should be consistently framed, and based on justice.”[247] In accordance with this truly axiomatic doctrine, and with various rulings of the courts, already quoted, no proof should be demanded which is not necessitated by the actual character of the crime. We have seen that neither in intent nor in fact is this an attempt against the person or life of the mother. If she die in consequence, the offender is already amenable for it as homicide; in the absence of any special statute, at common law. The crime, both in intent and in fact, is against the life of the child.

The attempt being proved, it is unnecessary that it should have been consummated, not merely the completion of a crime bringing its punishment, but also certain overt acts with intent to the perpetration; nor is it requisite that any injury, specific or general, should have been inflicted upon the person of the mother.

The offence being of equal guilt throughout pregnancy, proof of quickening, the incident, not the inception of vitality,—indicating neither the commencement of a new stage of existence, nor an advance from one stage to another,—[248] and, therefore an element without the slightest intrinsic value, should not be required.

The crime of abortion should be considered to include, as it does in the absolute fact of moral guilt, all cases of attempted or intentionally effected destruction and miscarriage of the product of impregnation; and this, whether it be living or dead, normal or abnormal, which last expression equally comprehends instances of moles, hydatids, extra-uterine conception, acephalous, anencephalous, and other monsters.

Proof should not, as now, be required of intent to destroy the child.[249] This should be considered shown by the intent to produce miscarriage, in the absence of lawful justification therefor; the act in all stages of pregnancy being attended with great danger to the child, and, in much more than a moiety of the period, necessarily fatal to it.

The attempt being considered criminal, it follows that proof of pregnancy is not necessary, and that conviction should be had though it were proved that pregnancy did not exist,[250] even that the woman on whom the abortion was attempted, however unlikely, was still a virgin.[251]