On Criminal Abortion in America

Part 1

ON CRIMINAL ABORTION IN AMERICA.

BY HORATIO R. STORER, M.D., OF BOSTON. MEMBER OF THE AMERICAN MEDICAL ASSOCIATION.

“And let the legislator and moralist look to it; for as sure as there is in any nation a hidden tampering with infant life, whether frequent or occasional, systematic or accidental, so sure will the chastisement of the Almighty fall on such a nation.”—GRANVILLE, on Sudden Death.

PHILADELPHIA: J. B. LIPPINCOTT & CO. 1860.

THOSE WHOM IT MAY CONCERN,

PHYSICIAN, ATTORNEY, JUROR, JUDGE,—AND PARENT,—

These Pages

ARE RESPECTFULLY INSCRIBED.

CONTRIBUTIONS TO OBSTETRIC JURISPRUDENCE.

NO. I.

CRIMINAL ABORTION.

By the Common Law and by many of our State Codes, fœtal life, per se, is almost wholly ignored and its destruction unpunished; abortion in every case being considered an offence mainly against the mother, and as such, unless fatal to her, a mere misdemeanor, or wholly disregarded.

By the Moral Law, THE WILFUL KILLING OF A HUMAN BEING AT ANY STAGE OF ITS EXISTENCE IS MURDER.

In undertaking the discussion at length of this subject, three preliminary facts must be assumed:—

First.—That if abortion be ever a crime, it is, of necessity, even in isolated cases, one of no small interest to moralist, jurist, and physician; and that when general and common, this interest is extended to the whole community and fearfully enhanced.

Secondly.—That if the latter assumption be true, both in premise and conclusion, neglected as the crime has been by most ethical writers and political economists, hastily passed over by medical jurists, and confessedly everywhere the great opprobrium of the law, often indeed by taunt that of medicine, either it cannot in the nature of things be suppressed, as by these facts implied, or its suppression has not been properly attempted. Discarding the former of these alternatives as alike unworthy of belief and proved false by facts hereafter to be shown, it will appear,

Thirdly.—That the discussion now broached is neither supererogatory nor out of place; further, that it is absolutely and necessarily demanded.

Moreover, in order that the importance and various bearings of the subject may be better appreciated, and that the writer’s position and aims may be more fairly understood, it must be borne in mind that there exist to this discussion certain positive and apparent objections, which have, in a measure, given rise to much of the silence and omission alluded to above, and are, in the main, as follows:—

1. The natural dislike of any physician to enter upon a subject on some points of which it is probable that a portion of the profession is at variance with him, either from disbelief in the alleged increase of criminal abortion, unnoticed for reasons shown hereafter, or from a blind reliance on Providence of itself to abate the evil.

2. His fear, lest by any possible chance, by showing the frequency of the crime and its means, he may unhappily cause its still further increase.

3. The reluctance on the part of many of the profession to attack a powerful and acknowledged moneyed interest;

4. And to tell their patients, more commonly than is yet general, most unwelcome truth; thus not merely condemning, but, to their own consciences at least, criminating them;

5. And individually to risk losing practice, if thought more scrupulous than others;

6. And to be brought into more frequent contact with the law, even though for ends of justice;

7. And to exercise greater care and discretion in diagnosis and treatment, lest themselves be brought to answer for malpractice, or worse;

8. And publicly to discuss matters supposed to be generally unknown, and thus seem to throw open professional secrets to the world.

And, finally, grave doubts lest the statements made, though simple and true, should yet appear so astounding as to shock belief, or so degrading as to tend to lessen all faith in natural affection and general morality.

But these objections, so far at least as regards the profession, are undoubtedly but of limited existence; and, on the other hand, as more than counterbalancing them all, are the following arguments:—

Part 2

That medical men are the physical guardians of women and their offspring; from their position and peculiar knowledge necessitated in all obstetric matters to regulate public sentiment and to govern the tribunals of justice.

That the discussion by them of this crime may very probably be the means, in great measure, of ultimately restraining or suppressing its perpetration.

That such will undoubtedly tend to save much health to the community and many human lives.

And, that, were there no other reason, it is clearly a duty.

I shall accordingly proceed to prove, so far as possible, the truth of every premise as yet stated, and to show the real nature and frequency of the crime: its causes; its victims; its perpetrators and its innocent abettors; its means and its proofs; its excuses, the deficiencies and errors of existing laws, and the various other obstacles to conviction; and, above all, so far as the present series of papers is concerned, the duty of the profession toward its general suppression.

I. IS ABORTION EVER A CRIME?

That this could have been doubted, least of all by mothers, however ignorant or degraded, would at first sight appear improbable. The sense of the public, however, its practice, its laws, being each proved to the contrary by the stubborn evidence of facts, the necessity of our preliminary inquiry will be made manifest.

To postpone, for the present, all other considerations, we will regard abortion in the abstract. It may be defined, best perhaps, as the violent and premature expulsion of the product of conception, independently of its age, viability, and normal formation. These characteristics are eliminated as having judicially and actually nothing to do with the essential nature of abortion, whereas in infanticide they are each elements of great importance; a difference that will hereafter be seen.

We further, in the present investigation, set aside all cases where abortion is the result of accident, or from natural causes, or justified by the rules of medicine, whether to save the mother or her child. We shall have occasion, in the subsequent course of our inquiries, to discuss this latter question somewhat fully, and to set forth unpleasant truths. We now confine ourselves exclusively to those instances where the attempt at premature expulsion of the product of conception is artificially induced and intentional, and where, so far as can be judged, it is not necessitated and would not otherwise have occurred.

In the first place, the laws do not recognize that unnecessary abortion, per se, is a crime.

This act, when unnecessarily done, must be for one of two reasons: either to prevent the product of conception from receiving life, which subsequent evidence will show cannot be the case, or, if living, to destroy it.

We have said that the Common Law and many of our American statutes lose sight of this fundamental idea. Though based upon the first of the above alternatives,—the erroneous one, as regards the fact of their existence,—they are so worded as almost wholly to ignore fœtal life, to refuse it protection, to insure their own evasion, and by their inherent contradictions to extend the very crime they were framed to prevent.

They recognize, for the most part, no offence against the fœtus; we have just shown that such, and such alone, is always intended. They punish an attempt, which does not exist, upon the well-being or life of the mother; the intent being seldom or never to destroy the mother. She is herself, in almost every case, a party to the action performed; an accessory or the principal. To constitute a crime, a malicious or wicked intent is supposed to exist; we have thrown aside, as does the law, every case occurring from accident or from justifiable cause. The intent, if existing, as of course must be always the case, is against, and only against, the product of conception.

Again, the punishment meted by the law proves the truth of these propositions. Unless the woman die in consequence of the offence, it is declared, in every stage of pregnancy, a mere misdemeanor, as in Massachusetts; or else, while called such, or by omission justified or openly allowed in the early months when the fœtus is without other safeguard, the law pronounces abortion a felony and increases its penalties in more advanced pregnancy, after quickening has rendered it infinitely more certain that the fœtus will remain undisturbed, and has thus in the great majority of cases prevented the crime.

On the other hand, granting for the moment that the erroneous assumptions of the law were correct, and that the attempt were upon the life of the mother, how inconsistent to punish murder, attempted or committed, if by injury to the throat or heart, capitally, and if by injury to the womb, by temporary imprisonment; especially where this latter case always necessitates the slaughter of a second human victim.

Or, granting that the attempt were only upon the mother’s health or temporary welfare, how absurd to punish the offence in early pregnancy, where her risks are greatest, by a trifling penalty or not at all, and in more advanced pregnancy, where these risks are daily lessened, with increased severity.

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