Part 15

Accidental abortions, caused by a physician, may be from two causes: error or insufficient care in diagnosis, or the absence of all likelihood of the existence of pregnancy. When cases are reported in apparent innocence of fault, and by eminent practitioners, of the pregnant uterus having been tapped for ovarian dropsy; of craniotomy having been attempted upon an infant’s fundament instead of its skull, and of the same operation in another instance undertaken upon the promontory of the mother’s sacrum, it cannot be alleged, I care not by whom, that this caution is unnecessary or these fears unfounded. The writer will state a few cases that have happened under his own observation. He has twice known abortion to be accidentally occasioned by the use of sponge tents; the patients being near the close of their menstrual lives, and neither themselves nor the physicians in attendance supposing that the contents of the enlarged uterus could be fœtal; in one of these cases the woman had never before been pregnant, and in the other not for many years. He has twice known the introduction of an intra-uterine pessary to be followed by abortion; in neither case was there any probability of the existence of pregnancy, save in the fact that the patients were married. He has known abortion to be produced by the application of lunar caustic to the os, in a case where, from the character of the operator, no suspicion could be entertained of the uterus having been more deeply tampered with.

In cases like these, the practitioner would seem to render himself liable to the charge of malpractice, even though by the improbability of malicious intent he escaped that of criminal abortion. In all instances where there exists the slightest suspicion or possibility even of pregnancy, the only rule for operative interference must be, unless circumstances imperatively prevent, to wait the few months or weeks necessary to establish the diagnosis. Justice to the profession and to the risk of error demand that where such precaution is not had, it should be replaced by a consultation, which would at once dispel any suspicion of carelessness or malpractice, and prevent a criminal charge.

All that we have said regarding surgical obstetrics, applies as forcibly to its medicinal procedures. Though draughts and potions of every kind are, as we have remarked, of doubtful or indirect efficacy for inducing abortion, yet with some of them instances of its occurrence do at times result. In supposed obstructive amenorrhœa, unless of several months standing, and in early pregnancy where established, the physician who does not intend it, must take care lest accidentally or carelessly, by purging, vomiting or over-bleeding, he produce a miscarriage.

* * * * *

But there is still another point in this connection we must not pass over. We state it in the following inquiries, received from one of the most eminent practitioners of the Eastern States, and put to us in all sincerity.

“Are there not cases where a physician would be justified in suggesting a course such as he would use in amenorrhœa, even where he might suspect, but not know, the existence of pregnancy? Suppose a mother of several children, which she has had in rapid succession, and the physician feels assured that health, and possibly life, will be endangered if another pregnancy occurs; would he be criminal if he were to use common means for amenorrhœa if the menses have been absent six weeks? Are the cases always so plain that a man can decide, and may he not balance a choice of evils?”

Covering as these questions do, much of the ground already gone over, we may answer them at once, and decidedly in the negative. They apply more especially to the early months of pregnancy, where it is always impossible to know its existence; and were direct or probable emmenagogues, or instrumental interference, to be here allowed, criminal abortion might be always induced before quickening, sanctioned and permitted by the rules of medicine. To justify abortion, life must certainly or very probably be endangered, not possibly merely, which is true in every pregnancy, and might be alleged at every trial for the crime.

Hufeland advised, as a “golden rule,” always to suppose the existence of impregnation in such cases, and to act accordingly; that is, to temporize long enough for the fœtus, if present, to make its sign. “Thereby,” he says, “the physician will avoid much mischief, and preserve his conscience as well as his reputation.”

The ideas on this subject held by my friend, are without doubt widely entertained by the profession. This paper will have served a good purpose and have saved many fœtal lives, if it do no more than carry conviction of the error and its likelihood to indefinitely extend the crime.

* * * * *

Again, it is undoubtedly the case that in all cases of maternal death during pregnancy, where the fœtus has arrived at the period of viability, its immediate extraction by the Cæsarean section should be effected. We have already referred to this subject, and Kergaradec, who has well written upon it, lays down the maxim that the operation should always be performed, even in the fifth month of pregnancy. In some cases, of placenta prævia, for instance, where the chances are always more or less against the child’s life, success is less probable; but this in no wise invalidates the necessity of the operation. The writer has himself performed it in the complication instanced, and in vain; but he would none the more hesitate, on this account, to repeat it. There can be no reason against the procedure in any case, and by it the child may possibly be saved. In the words of an older writer, “Est enim inhumanum, post obitum matris, fœtui pereunti et suffocari parato manus auxiliares denegare, et sæpè viventem adhuc cum matre mortuâ eodem tumulo contegere et obruere. Idcirco jurisconsulti eum necis reum damnant, qui gravidam sepelierit non prius extracto fœtu.”

A question has been raised concerning the rights of relatives in preventing the physician from such discharge of his duty. It has been asserted that “the father has not only the natural right of his relationship, but legal power; for Dr. Lever recently mentioned that he had consulted Dr. Alfred Taylor to know whether he would be justified in performing Cæsarean section after the death of the mother, without the consent of the father, as it appeared unjustifiable homicide to allow the infant to die. Dr. Taylor gave his opinion that, in law, the infant belonged to the father,—the infant with the life thereof,—and that if Dr. Lever touched it, even to rescue it from death, an action would lie against him.” I must, however, declare such doctrine to be false and pernicious. If signs of the child’s life remain, no physician should hesitate endeavoring to preserve it, unless restrained by actual force. I reiterate my conviction that such neglect, or seeming neglect, of fœtal life is an actual wrong, both against the individual and against society.

Similar points in which physicians are directly interested, as tending by their apparent disregard of fœtal life to render themselves innocent abettors of criminal abortion, are not uncommon. Such are neglect of efforts to prevent miscarriage when threatening, or where it has become an established habit; and of attempts at resuscitating still-born children where there is the slightest chance of success, and success has now been rendered much more probable by the methods of Marshall Hall and Silvester; the performance of operations of any kind upon a pregnant woman, even tooth-drawing, that might be delayed; the careless or unnecessary use of ergot; the relying upon a single and unaided opinion, where not one life only, but two, may be endangered.

Other instances might be adduced; but enough has already been said to prove that the importance of the subject we are considering, and the responsibilities resting upon the profession regarding it, demand as I have elsewhere suggested, that physicians should possess, should acknowledge, and should govern themselves by, an Obstetric Code—the necessity of which will be made even more manifest, as we proceed in our investigation of questions pertaining to Obstetric Jurisprudence. We have referred to some of its leading principles, but have done no more than faintly foreshadow them.

Distressing in the retrospect, inconvenient frequently in the present, such a Code would undoubtedly prove; but it is demanded of the profession by the progress of our science, by humanity, morality and religion. Were the facts in the case more generally known, and the existence and sanctity of fœtal life more universally appreciated, it would be also demanded by public opinion.

We have now seen that “the absurd enactments still remaining on the statute book, the careless indifference with which society views the crime, the reluctance with which means are adopted to prevent its occurrence, its increase, and its frequent induction by obstetricians, are all evils which loudly and imperatively call for the closest investigation.”

We proceed to the other relations of criminal abortion, more especially to those immediately pertaining to the claims and course of justice.

VII. ITS OBSTACLES TO CONVICTION.

We have already seen that there are special, though, it is to be hoped, not wholly insurmountable causes for the existing prevalence of abortion. It now becomes our duty to consider some of these reasons in detail, in so far as they relate to and obstruct the course of justice.

It would seem, from what has been previously said, that little doubt could be entertained of the inefficacy of our present statutes against abortion. There are few of the States whose laws on this point are so wisely and completely drawn as in Massachusetts; yet, as they there stand, they cannot, as such, be enforced. In that Commonwealth, according to the reports of the attorney-general, during the eight years from 1849 to 1857, omitting 1853—as there seems to have been no report rendered for that year—there were, as we have seen, 32 trials for abortion, and not a single conviction!

A committee of the State Medical Society of Massachusetts, to whom the propriety of a professional appeal to the Legislature for more protective statutes had been referred by the District Society of Boston, having reported against such action, on the ground “that the laws of the Commonwealth are already sufficiently stringent, provided that they are executed,” it becomes the more necessary for us to strike at the root of the whole matter, and to show, if possible, why conviction, unless in case of the death of the mother, cannot at present be obtained.

It has been thought, even publicly argued, that in the fact that statutes against abortion are almost everywhere not only not enforced, but not attempted to be enforced, there is afforded strong evidence of the existence of an ultimate and absolute impossibility of thus meeting the crime. The idea, though a fallacious one, is yet attributable to an important and evident cause.

That the prevalence of abortion is in great measure owing to ignorance of guilt, on the part of the community at large, we have shown. We now assert that its futile prohibition by the law, its toleration, are plainly in consequence of similar ignorance on the part of legislators, and of officers of justice.

Our communities form their own laws, and, therefore, as was pointed out at the commencement of our remarks, these must necessarily bear the stamp of public opinion; while the officers by whom they are to be enforced—juror, attorney, judge—looking to the only source possible for their enlightenment on this subject, to medical men, have hitherto found but few bold and honest statements, and these unindorsed by the mass of the profession; or, in the total silence, a practical sanction of the popular belief. This is no exaggeration; the assertion is fully borne out by facts. Need we wonder, then, that the laws are not enforced, that indeed their enforcement is not attempted? But this first and great cause, it is apparent, is by no means an essential one.

We need add nothing to what we have already said, of those obstacles to conviction, arising from circumstances common in greater or less degree to other crimes;—the difficulties of detection and of obtaining proof, however great these are allowed to be,—but we proceed at once to consider the laws themselves by which in this country the crime of abortion is attempted, or is expected to be suppressed.

The arguments by which we have shown the mistaken premise on which the common law of England, as covering this crime, is founded, and by adoption, the common law of this country, will not have been forgotten. We shall perceive that similar reasoning applies with equal force to the special statutes, where such exist, of almost every State in the Union.

* * * * *

In the following States, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, Florida, Kentucky, Tennessee, Iowa, and the District of Columbia, there appear to exist no statutes against abortion, and the crime can only be reached at common law and by the rulings of the courts.