On criminal abortion in America

by Horatio Robinson Storer

No discrimination should be made as to the means criminally employed, and an escape thus afforded to the guilty; as we have seen still obtaining in Great Britain and many of our own States.

The mother, almost always “an accessory before the fact,” or the principal, should not, as now, be allowed almost perfect impunity. There is no valid reason for such exemption, there is every reason against it. The woman is covered by the laws of most continental nations of Europe,—France, Austria, Germany, Bavaria, and Italy,—and by many of them her punishment, if married, is greatly increased. Similar severity is also exercised in these countries against the father of the fœtus, if he too is implicated in the crime.

To allow that abortion is extenuated in the unmarried, it has been said, will “to the moral and political philosopher appear to have exalted the sense of shame into the principle of virtue, and to have mistaken the great end of penal law, which is not vengeance, but the prevention of crime. Law, which is the guardian and bulwark of the public weal, must maintain a steady and even rigid watch over the general tendencies of human actions.”[252] But, on the other hand, “the measure of punishment should be proportionate, as nearly as possible, to the temptation to offend, and to the kind and degree of evil produced by the offence.”[253]

We have seen the increase in moral guilt, and of opportunity for commission and for escape, in the case of nurses, midwives, and other classes of persons, who, from their profession, are brought more directly into contact with pregnant women. By the penal code of Napoleon the First, remarkable in so many respects for the wisdom of its provisions, an increase of punishment was enacted for abortion criminally induced or advised by physicians, surgeons, or other officers of health, including midwives, or by druggists;[254] their guilt being enhanced by their greater opportunities and knowledge.

Punishments for the crime of abortion should not, as is now generally the case, be so framed as to render the statute, in fact, if not in name, simply nugatory. Were the murder of adults to be made answerable by merely a year or two in prison, far more convictions than at present would undoubtedly be secured; but it is certain that the instances of the crime would be fearfully increased. We have reason to believe that it is precisely thus with the case in hand.

A standard of justification for the instances of necessary abortion should be fixed by law. If perfection in this respect be impossible, let the nearest approach be made to it that can. Since my remarks upon the relative rights of the mother and fœtus to the chance of life in doubtful cases were published in a former paper of the present series, I have received from Dr. Rattenmann, late of Tübingen, an essay, written by himself, in which this question is discussed at length, and the repetition of abortion upon the same individual, in the early months of pregnancy, is defended. I have carefully considered the several arguments advanced by the gentleman, and am compelled to adhere to the views I have already expressed.

In presenting a report upon the matter, in 1857, by direction of the Suffolk District Medical Society of Massachusetts, the writer offered the draft of a law, prepared after much thought and consultation with legal as well as with medical men, and embodying the suggestions made above. This was intended for the consideration of the Legislature of the State, in the hope that it might be of aid toward a modification of the present defective law.

Having seen no reason to change the opinions then avowed, but, on the contrary, receiving constant confirmation of their truth, I now present the essential portions of that draft, acknowledging most willingly that its wording may, perhaps, with safety, be simplified and condensed; but contending, in all sincerity and earnestness of purpose, that its general tenor is what justice and humanity alike, and imperatively, demand at the hands of society.

“Whoever, with intent to cause and procure the miscarriage of a woman, shall sell, give, or administer to her, prescribe for her, or advise, or direct, or cause, or procure her to take any medicine, or drug, or substance whatever, or shall use, or employ, or advise any instrument, or other means whatever, with the like intent, unless the same shall have been necessary to preserve the life of such woman, or of her unborn child, and shall have been so pronounced (in consultation) by two competent physicians; and any person, with the like intent, knowingly aiding and assisting such offender or offenders, shall be deemed guilty of felony,” etc. etc.; “and if such offence shall have been committed by a physician, or surgeon, or person claiming to be such, or by a midwife, nurse, or druggist, such punishment may be increased at the discretion of the court.”

“Every woman who shall solicit, purchase, or obtain of any person, or in any other way procure, or receive, any medicine, drug, or substance whatever, and shall take the same, or shall submit to any operation or other means whatever, or shall commit any operation or violence upon herself, with intent thereby to procure a miscarriage, unless the same shall have been by two competent physicians (in consultation) pronounced necessary to preserve her own life, or that of her unborn child, shall be deemed guilty,” etc. etc.; “and if said offender be a married woman, the punishment may be increased at the discretion of the court.”