The great majority of those who desire the interruption of pregnancy feel they have not assumed an illegal position so long as they avoid instrumental procedures. That is not correct, for even at Common Law it is a misdemeanor to bring about the death of an unborn child by the use of drugs or by any other means.
At Common Law there was a difference of opinion as to whether all induced abortions were illegal. Many courts formerly held that quickening was a necessary prerequisite; but under the modern statutes, practically without exception, the law disregards the period of pregnancy at which the abortion is provoked. Since the time of conception determines the beginning of embryonic development, to prove that the act was committed before fetal movements were perceived is no longer a valid defense. This has been emphatically stated by Judge Coulter, of Pennsylvania, who said: "It is not the murder of a living child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryonic life and gestation has begun, the crime may be perpetrated."
Each commonwealth has enacted its own statutes for the regulation of abortion. In many states, simply to seek the means for destroying pregnancy is a criminal act. Thus, Indiana, perhaps the most progressive of the States in reconstructing its criminal code to accord with modern sociological teaching, has enacted a law which I quote from Burn's Indiana Statutes, Revision of 1908, Vol. I, page 1029. "Every woman who shall solicit of any person any medicine, drug or substance, or thing whatever and shall take the same, or shall submit to any operation or other means whatever with intent thereby to procure a miscarriage, except when done by a physician for the purpose of saving the life of the mother or child, shall, on conviction, be fined not less than ten dollars, and be imprisoned in the county jail not less than thirty days nor more than one year." To include the woman as a party to the crime is a signal mark of progress toward bringing abortion under effective legal control. Heretofore, the perpetrator alone has been responsible, and in most States he remains so, while the woman is regarded as a victim. Clearly, that is unjust, for criminal abortions are rarely, if ever, performed without application by the subject of the operation. According to most of the statutes no distinction is made between the attempt at abortion and its accomplishment. Irrespective of the outcome, those who supply drugs or employ instruments purposing the destruction of pregnancy are guilty of the offense.
An extensive analysis of the various State laws is unnecessary; the mention of a few statutes, selected from different sections of the country, will suffice to indicate the character of prevalent legislation. Massachusetts imprisons those found guilty of abortion for a period of three years or less, and permits a fine of one thousand dollars. In Pennsylvania the same prison sentence is imposed, though the fine may not exceed five hundred dollars. Three years is the minimum imprisonment in Virginia, and a maximum of ten years is allowed. Colorado's law duplicates that of Massachusetts. California imposes no fine, and prescribes a sentence of from two to five years in the State prison. All the statutes make the offense much graver when the woman dies as a result of the practice. Under these circumstances, the crime never takes lower rank than manslaughter; and generally it is murder.
Evidently we possess sufficiently stringent laws regarding criminal abortion; yet, as everyone knows, they do not prevent perpetration of the crime. On good authority, we are informed that eighty thousand unlawful abortions are performed annually in New York, in spite of a possible penalty of four years in the State prison. This is due in part to difficulty in securing evidence and failure to prosecute when evidence could be gathered, but more particularly to the fact that the general public does not appreciate the gravity of the offense. The same feeling is illustrated in the advertising of abortifacients. Newspapers and magazines unhesitatingly carry, under the guise of remedies to regulate the health of women, notices of drugs and equipment intended to destroy pregnancy. This is expressly forbidden by many statutes. [Footnote: Thus, the Maryland law provides that "any person who shall knowingly advertise, print, publish, distribute or circulate any pamphlet, printed paper, book, newspaper notice, advertisement or reference containing words or language or conveying any notice, hint, or reference to any person or to the name of any person, real or fictitious, from whom, or to any place, house, shop, or office, where any poison, drug, mixture, preparation, medicine, or noxious thing or any instrument or means whatever; or from whom advice, direction, information or knowledge may be obtained for the purpose of causing the miscarriage or abortion of any woman pregnant with child, at any period of pregnancy, shall be punished by imprisonment in the penitentiary for not less than three years, by a fine of not less than five hundred dollars, nor more than one thousand dollars, or by both, in the discretion of the court.">[
The knowledge that prohibitory laws exist is sufficient to deter reputable physicians from illegal practice; whereas known laxity in the enforcement of the law continually tempts unscrupulous persons to provoke abortion. Among the poorer classes the procedure is undertaken by ignorant women, while persons in more comfortable circumstances avail themselves of the services of medical men who are usually incompetent and value money above professional honor. The net result is an unpardonable death-rate and a large proportion of invalids. Aside from the legal aspect of the act, the element of personal danger would seem a warning to be heeded by women who contemplate becoming a party to this crime.
THERAPEUTIC ABORTION.—If a woman is suffering from tuberculosis or some organic affection, pregnancy may add a serious strain upon the already crippled machinery of her body. Occasionally gestation itself may cause changes which threaten life. In either event the duty of the physician is plain. The law is acquainted with such emergencies, and explicitly permits the termination of pregnancy when undertaken to relieve or cure such conditions. When performed to restore health the operation is called therapeutic abortion.
The Maryland law, for example, grants the right to induce abortion whenever two or more physicians see the patient and agree that "no other method will secure the safety of the mother." Similar rules are prescribed by the statutes of other States, but none concedes the right of abortion as a means of keeping the woman from suicide.
Since therapeutic abortions are legal, they may be done openly; hence the operation is performed in appropriate surroundings and with every refinement of surgical technique. These fortunate conditions materially alter the outlook; serious consequences of the operation itself need not be feared. Competent surgeons, employing modern methods, may perform hundreds of abortions without the loss of a single patient. Moreover, pregnancy may be terminated safely and expeditiously at any time; the lay view which regards abortion as more serious after the second month than before it is a relic of days gone by.
PREMATURE DELIVERY.—In the introduction to this chapter we noted that the infant becomes viable after the twenty-eighth week, which marks in a practical sense, the transition of the fetus from an immature to a premature stage of development. In point of frequency, premature delivery ranks far below either abortion or miscarriage.