Part 11

If violent purging or vomiting have been resorted to without any apparent reason, or to a greater extent than ordinarily prescribed or required; or if leeches have been applied to the thighs, to the number of an hundred or more, as instanced by Tardieu, or the like, there is certainly ground for strong suspicion. And here it is that the criminal liability of careless or ignorant physicians becomes evident. In cases such as we have referred to, it would be very difficult for a successful defence to be offered, providing the pregnancy had been suspected by those not implicated, were the statutes on abortion properly drawn and enforced.

It has been ruled, and very justly, that attempts at the crime, though unsuccessful; or effective, yet the ovum retained as mole, hydatids, skeleton, mummy, or putrilage; and whether the woman be pregnant or not, and if pregnant, whether the child be alive, dead, or, abnormally developed or degenerated, should be amenable as though fully consummated. We have seen the frequent difficulty in proving fœtal life; the attempt at its destruction shows the belief in its existence, and the intent. The proofs will here of course be of a different nature. The signs of delivery will be absent, and all evidence from the product of conception, unless the mother’s death ensue; in which event, as in the other fatal cases we have considered, and on the principle just laid down, procedure might be had on the charge either of abortion or homicide; but it must not be forgotten, as we early pointed out, that immediate death from the shock may occur, and no lesion of any kind be found. The patient or parties interested are proved by the attempt to have supposed pregnancy existing, and to have behaved as though this were the fact.

The age of the patient is not of consequence; nor is that of the fœtus, save as corresponding with the alleged period of pregnancy, in case any doubt exist as to its own identity or that of the mother, and as bearing on the statement we have already attempted to prove, that criminal abortion is comparatively rare after the period of quickening, and, therefore, on the probability of intent. The number of the pregnancy is also wholly immaterial, different as are the causes alleged for its criminal induction, and equally liable in youth and age, as women seem to be, to accident or placental disease. Whitehead and West are of opinion that abortion naturally resulting is most common after the sixth pregnancy, but the point needs further investigation.

Among the proofs of intent must be included, as we have seen, the excuses offered by the accused or suspected party, and the means resorted to for consummation. These we now proceed to examine.

It will be evident that the plea of necessity can be made by none but a medical man. We shall show that the cases where abortion is legitimated by the rules of science are extremely few, and that for safety’s sake their applicability should in no instance be allowed to rest upon a single opinion. For all others beside the physician there can be no allowable excuse except, in the mother’s case, insanity; which, however common in the true puerperal state, and often no doubt then showing itself by infanticide, has in early pregnancy, and to any extent, still to be observed. Other pleas as offered by the mother, ignorance of pregnancy or of fœtal life, duress, personal health or that of her family, accident, carelessness, fear of child-bed, malpractice on part of the attendant, we have already considered at sufficient length. It is sometimes effected in hatred of the husband or in jealousy, sometimes for concealment of shame; excuses of little more value than those of extravagance or fashion. Constitutional predisposition can hardly be asserted, unless the miscarriage have been preceded by others; very many ineffectual attempts are on record, although the existence of such predisposition was evident. It will often be alleged that the measures instituted were to prevent instead of to effect the miscarriage, and that this has resulted in consequence merely of an excess of good-will; the sophistry is generally apparent.

The means resorted to are for two purposes: on the one hand, to prepare the patient for the abortion and preliminarily to lessen her danger, or to conceal the character of those, on the other hand, which really occasion it, and for this end used prior or subsequently to them. We may yet take occasion to consider these several agents in some detail; it remains only to remark that their use in any given case must be compared with what was then actually needed, or would have been required had the abortion been justifiable and necessary.

Certain drugs, ergot and savin for instance, the class of so-called abortives, popularly considered specific, are always suggestive of evil intent. They would not be used, were abortion necessary, by a well-informed practitioner, caring for the life of the parent or fœtus. The same is true, though of course to a more limited extent, of all over-drugging, over-manipulation, or over-exertion by a pregnant woman, by whomsoever advised or performed. In every instance it is necessary to compare the cause alleged with the effects observed, and to judge of it from these. Where direct operative manœuvres are suspected or charged, the processes or instruments, the results, immediate and consecutive as well as remote, the period elapsing before their occurrence, must all be taken into careful consideration.

But, on the other hand, it is immaterial what was the agent, and whether or not it would produce abortion, if it was believed capable of this effect, and employed or administered with that intent. If the person charged knew that the woman was with child, and the probable effect of the agent administered, this is good presumptive evidence that the intent was to produce the miscarriage, and where the effect of abortion is actually thus produced, it will materially aid the presumption of such intent.

It was stated early in this inquiry that a difference existed between the methods of investigation, as regards the examination of the fœtus, proper in abortion and infanticide. The reason of this has been pointed out by Tardieu. In the latter case, the whole matter turning upon the questions whether the child was born living or dead, and in which of these states it was injured, it becomes necessary to prove one or the other of the alternatives, but in abortion they are intrinsically of no importance whatever. The only points then to be decided are, was the birth premature, and if so, was it intentional, and if so, was it absolutely essential and to save either maternal or fœtal life. Except as bearing on these questions, therefore, it is of no consequence whether wounds were inflicted, whether the lungs had been inflated, whether the fœtus was viable, or even whether it was ever discovered.

In their place, however, these points are each important, but only as bearing on the main facts to be determined. In a case, for instance, as that related by Ollivier d’Angers, where the fœtus, though very immature, lives several hours after its expulsion, this fact alone will preclude the idea of a slow and progressively acting cause like most forms of abortive disease, and will point to some direct interference, by means suddenly terminating the pregnancy without injuring the fœtus.

And so in other cases, especially of sudden maternal death, it is of importance to ascertain as nearly as possible the period at which death of the fœtus took place. If the two were coincident, the deduction might be other than if the latter were proved to have preceded the former by several days. The differences observed between putrefaction and decomposition in utero and in the open air must not be lost sight of. In the one case, according to Orfila, Devergie and Martin, Moreau, P. Dubois, Danyau, Cazeaux, Tardieu, and my own experience, a uniform and characteristic reddish-brown hue obtains in proportion to the time of retention after death, varied perhaps by the action of the amniotic fluid; the fœtus wrinkles, dries, and becomes mummified, unless in earliest pregnancy, when it generally resolves itself into a gelatinous mass.

If the cervix, the portion of the uterus most frequently wounded, is found punctured or lacerated, while the ovum is still retained, there is reason for suspicion; if the membranes are torn and extensively detached, while the cervix is but little dilated, such is increased; and it is made almost a certainty, if with the latter condition, nothing remain of the ovum in the uterine cavity but lacerated fragments. Here the abortion would probably not merely have been intentionally induced, but by the direct introduction and agency of instruments.

Wounds of the fœtus are much rarer than those of the mother, and are usually simple pricks of the skin marked by blackish coagula or extravasations; which, if upon the skull and unless care be used, are liable to be simulated by clots casually adhering to the hair or scalp. If the wound be deeper, its course may be traced by dissection. Its situation varies; Devergie thinking it always on the back and buttocks, while Tardieu, with some warmth, would restrict its location to the top of the cranium. This difference is easily explained by variations in the time of pregnancy, and in consequence partly, as may also depend on its life or death, in the presentation of the child. The rarity of their occurrence, though denied by Taylor and other medical jurists, might, however, be expected, and is readily accounted for; the instruments used by ignorant persons seldom entering the os, however severely wounding the cervix, and where they do enter, usually only piercing the membranes; against which, except toward the end of pregnancy, in a deficiency of liquor amnii, or in labor, the fœtus can hardly be said to forcibly press.

4. The Identity of the Party Accused.

Most of the points here involved having already been incidentally considered, we will not repeat them. The circumstances and history of the case, the relative correspondence of different testimony, the allegations of the accused, will all bear directly upon the question at issue.

In trials for abortion, of all others, the medical witness and the advocate should bear in mind their liability to error; the juror and the judge the fact that innocent persons are at times wrongly accused, often by the true criminals themselves.

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In defence, it must either be pleaded that the alleged abortion did not occur, that it was accidental or natural, that it was necessitated, or that it was induced by another than the individual charged.

The first of these pleas is seldom offered except in the earliest months of pregnancy, and would be invalid if an attempt at the abortion could be proved. In default of this, however, where the ovum has been lost, or has passed unnoticed, the fact that the sanguineous effusion was hemorrhagic and attended with clots, would, in the absence of any uterine disease sufficient to account for this, be so far presumptive evidence; to be corroborated or not by the history of the case. Moles and hydatids are now generally allowed to be mere transformations of the product of conception; their premature discharge, therefore, equally an abortion.

In answer to the second plea, the importance of several points must be borne in mind. It has been well put by Tardieu that it is wrong to commence, as advised by most authorities on the subject, by enumerating all the natural and accidental causes liable to have produced the abortion. On the contrary, the signs and proofs of criminal violence should first be sought, and these compared with the allegations of witnesses and the possibility of a natural or accidental origin. The traces of falls, contusions, and wounds must be found, not believed on mere allegation; coincidences must be guarded against, equally with untruth.

We have already laid down rules here available; that the state of the fœtus often affords proof of the cause of its expulsion, this being slow and natural, and depending on disease and predisposition, or not; that in flagrant malpractice, the use of alleged specifics, or of measures likely to produce direct miscarriage, or otherwise absolutely counter-indicated by the general health and constitution of the patient, a contradiction exists to the plea offered, in itself strong presumptive evidence of criminal intent; and that in certain cases this evidence becomes positive, as where, for instance, a sponge found or proved to have been inserted into the os uteri as a dilating tent, is alleged to have been intended as a mere pessary and placed in the vagina.

If the accused be a physician, presumed as he should be, acquainted with the great principles of practice, his only plea can be, where the means used were unjustifiable and proved such, and where the pregnancy was known to others, that he was ignorant of its existence. Liable as the profession are at any time to this charge, and easy as it is in almost every case, especially of instrumental procedure, for us to take such preliminary measures as would be likely to settle the question of the existence of pregnancy, or to request the presence of a witness to our act, it is unjust to ourselves and to each other to omit these precautions.

But if, on the other hand, the charge be utterly unfounded, it is probable, as I have already remarked, that contradictions in the testimony or the alleged facts could always be shown to exist, and the perjury thus exposed. It would be self-evident, were the accused proved to have been first consulted after the abortion had terminated, though not if it had only commenced.

V. ITS PERPETRATORS.

It is interesting, and at the same time of judicial importance to ascertain, so far as possible, the standing and character of the perpetrators of this crime.

In the first place, French statistics on the large scale show that the number of criminals, principals and accomplices, in that country at least, is in large excess to the instances of the crime, there having been in 183 trials, from 1826 to 1853, not merely 417 parties accused, but 213 convicted; and that in 75 per cent. of the prosecutions and convictions occurring, where the abortion is not induced by the mother herself, the offenders are women. With us the same statement is, without doubt, equally true.

The part played by the mother, herself so often a victim, is almost always that of a principal, yet as laws now stand, she can scarcely ever be reached. The cases where she is under duress, by threat of other personal violence from her husband or seducer, and thus compelled to submit to abortion, or where the act is performed by his direction but without her knowledge, are so rare, that in a general statement they may be assumed not to exist. If the mother does not herself induce the abortion, she seeks it, or aids it, or consents to it, and is, therefore, whether ever seeming justified or not, fully accountable as a principal. We have already seen the position these mothers hold in the community, high as well as low, rich as well as poor, intelligent and educated as well as ignorant, professedly religious as well as of easy belief, not single alone, but married.

We turn now to their partners in guilt, more criminal than themselves; for whatever excuse the latter may suppose themselves to possess, the former can have none.