Abortion Not a Crime by the Common Law.—At common law it was not a crime to commit an abortion with the mother’s consent if the child had not quickened. In Mitchell v. Com., 78 Ky., 204 (s. c., 39 Am. Reports, 227), the Court, per Hines, J., says: “After a patient investigation we are forced to the conclusion that it was never called a punishable offence at common law to produce, with the consent of the mother, an abortion prior to the time when the mother became quick with child. It was not even murder at common law to take the life of the child at any period of gestation, even in the very act of delivery.” See also Evans v. People, 49 N. Y., 86.
The inhumanity and danger to society of this rule became manifest at a very early period, and both in England and in this country statutes were adopted, varying somewhat in the degree and kind of punishment and in the nomenclature of the crime, but all of them making the offence of committing an abortion, no matter at what stage of gestation, a crime.[188]
The Common-Law Doctrine Criticised.—Professor Elwell in his valuable work on “Malpractice, Medical Evidence and Insanity,” pp. 250, 251, makes the following remarks upon this subject: “The idea once existed quite generally, and it still exists to some extent, that there is no offence in destroying the embryo or fœtus before there is a manifest knowledge of life by the mother, derived from motion of the child called ‘quickening.’ How absurd to suppose that there is no life until the mother can feel the muscular motions of the child! As well might we deny the vitality of the blood because it cannot be felt. The muscular tissues, and even the bones to which they are attached, must have some degree of substance before there can be motion, and of course this development depends upon life. Though this foolish notion is now fully exploded in medicine, it still lingers in the popular mind, and doubtless leads to much crime. The life of the fœtus or embryo immediately after conception is just as positive physiologically as at any subsequent period. Quickening being an incident or sign in the course of development of the fœtus, it indicates not the commencement of a new state of existence, but only a new manifestation of pre-existing life.... It is uncertain in its appearance, sometimes coming on at three months, sometimes at six months, and sometimes not at all.”
Legal Definitions of Terms, “Quick with Child,” etc.—In Evans v. People, 49 N. Y., 86, following R. v. Wycherly, 8 C. & P., 262, it was held that a woman is “quick with child” from the period of conception after the commencement of gestation, but is “pregnant with quick child” only when the child has become “quickened in the womb.” This distinction has been discussed in State v. Cooper, 2 Zab., N. J., 52, and since the Evans case, the same court in New York State has held that the expression, “woman with child,” means “pregnant woman.” Eckhardt v. People, 83 N. Y., 42 (s. c., 38 Am. Rep., 462).
Death of Child by Abortion.—If, in attempting to produce an abortion, the child is caused to be born alive but before the end of the period of gestation, and when it is not capable of sustaining life, and it dies, the person producing the abortion and bringing the child into the world at this time and in this manner is guilty of murder. Wharton’s Crim. Law, sec. 942; Rex. v. West, 2 Cox Crim. Cases, 500; Com. v. Brown, 14 Gray, Mass., 419.
Death of Mother by Abortion.—So also where in consequence of producing an abortion the death of the mother occurs, the person producing the abortion is guilty of murder at common law. 4 Blackstone’s Com., 201; 1 Bishop’s Crim. Law, 328. In some of the States, however, these offences are declared to be only manslaughter.
Further consideration of the subject of abortion will be had under that title in another part of this work.
Statutes Generally Except Abortions Necessary to Save Life.—It should be noted here, however, that nearly all the statutes which define and punish the crime of abortion, or the crime of manslaughter or murder committed in consequence of abortion, declare that when it is necessary to produce a miscarriage in order to save life, the act of doing so is excepted from the effect of the statute.
Negligent Malpractice.—Under the third subdivision of the definition, viz., when by reason of the negligent acts on the part of the physician or surgeon the patient suffers death or unnecessary injury, may be placed the most numerous cases of malpractice, according to the generally accepted meaning of the term.
Criminal Liability for Negligent Malpractice.—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. The general theory of the criminal law is based upon the doctrine that in order to constitute a crime there must be either an intent to do the wrong, or such a degree of negligence in the performance of a given act as to supply the place of the intent to do wrong, and require punishment for the protection of society, upon the ground that the carelessness of the defendant is so great as to make it necessary and proper to punish him, in order to deter others from following his example.