On criminal abortion in America

by Horatio Robinson Storer

First, the maxims of the law are based on past or present public opinion. If merely on past, and this has totally changed, the law in matters of such importance is compelled to change also. The fact that the laws on this subject remain unaltered, if it be granted, as will be proved, that they are erroneous, furnishes us at the outset, and so far, with evidence that public opinion was formerly wrong, and that it so continues.

The frequency of the offence, and the character and standing of the mothers upon whose persons it is practised, accessories as we have seen, or principals, to it, furnish similar and more cogent testimony regarding the theory upon which it is founded. We shall soon perceive how extensive and high reaching is the frequency; we must therefore conclude that the public do not know, or knowing deny, the criminal character of the action performed.

Again, the direct testimony of the parties themselves is often available. It is undoubtedly a common experience, as has certainly been that of the writer, for a physician to be assured by his patients, often no doubt falsely, but frequently with sincerity, that their abortions have been induced in utter ignorance of the commission of wrong; in belief that the contents of the womb, so long as manifesting no perceptible sign of life, were but lifeless and inert matter; in other words, that being, previously to quickening, a mere ovarian excretion, they might be thrown off and expelled from the system as coolly and as guiltlessly as those from the bladder and rectum.

It having now been shown, directly and by temporary assumption, that the law and public sentiment, both by its theory and its practice, alike deny to unjustifiable abortion the imputation of crime, it remains for us to discuss this question abstractly, and to prove not merely that they are wrong, but that the offence is one of the deepest guilt, a crime second to none.

Ignorance of the law is held no excuse. The plea of ignorance of guilt could hardly better avail where its existence is implied by common sense, by analogy, and by all natural instinct, binding even on brutes. Were this guilt, however, clearly shown, and its knowledge, supposed wanting, to be spread broadcast by the press, the all-powerful arbiter of public opinion, the last and strongest prop of the crime were gone.

It has been shown, by setting aside all accidental cases, those naturally occurring and those necessarily, and in the absence of reasonable evidence to the contrary, that all other abortions must be intentional, that they must be occasioned by the “malice aforethought” of the law. It has also been shown that in these cases, except it exist as an additional element, the malicious intention is not against the life or person of the mother, but that in every instance it is against the product of her womb. Hence, the whole question of the criminality of the offence turns on this one fact, the real nature of the fœtus in utero. If the fœtus be a lifeless excretion, however soon it might have received life, the offence is comparatively as nothing; if the fœtus be already, and from the very outset, a human being, alive, however early its stage of development, and existing independently of its mother, though drawing its sustenance from her, the offence becomes, in every stage of pregnancy, murder.

“Every act of procuring abortion,” rules Judge King, of Philadelphia,[2] contrary to the usual interpretation of the law, “is murder, whether the person perpetrating such act intended to kill the woman, or merely feloniously to destroy the fruit of her womb.”

Common sense, we have said, would lead us to the conclusion that the fœtus is from the very outset a living and distinct being. It is alike absurd to suppose identity of bodies and independence of life, or independence of bodies and identity of life; the mother and the child within her, in abstract existence, must be entirely identical from conception to birth, or entirely distinct. Allowing, then, as must be done, that the ovum does not originate in the uterus; that for a time, however slight, during its passage through the Fallopian tube, its connection with the mother is wholly broken; that its subsequent history is one merely of development, its attachment merely for nutrition and shelter, it is not rational to suppose that its total independence, thus once established, becomes again merged into total identity, however temporary; or that life, depending not on nine months’ growth, nor on birth, because confessedly existing long before the latter period,—since quickening at least, a time varying within wide limits,—dates from any other epoch than conception; while it is as irrational to think that the influence of the father, mental and moral as well as physical, so often and so plainly manifested, can be exercised by any possibility upon the child at any other moment than that original and only one of impregnation itself.

Another argument is furnished us, similar, but differing. The fœtus, previous to quickening, as after it, must exist in one of two states, either death or life. The former cannot take place, nor can it ever exist, except as a finality. If its signs do not at once manifest themselves, as is generally the case, and the fœtus be retained in utero, it must either become mummified or disintegrated; it can never again become vivified. If, therefore, death has not taken place, and we can conceive no other state of the fœtus save one, that, namely life, must exist from the beginning.

These reasonings are strengthened by the evidence of analogy. The utter loss of direct influence by the female bird upon its offspring from the time the egg has left her, and the marked effect, originally, of the male; the independence in body, in movement, and in life, of young marsupial mammals, almost from the very moment of their conception, identical analogically with the intra-uterine state of other embryos,—nourishment by teat merely replacing that by placenta at an earlier period; the same in birds, shown by movements in their egg on cold immersion before the end of incubation; the permanence of low vitality, or of impaired or distorted nervous force, arising from early arrest or error of development, and necessarily contemporaneous with it, are all instances in point.