Part 19

But it must not be forgotten that the true nature of manslaughter consists in the absence of all malice or willful intent, expressed or implied, to do personal injury: out of tenderness to the frailty of human nature, the law mercifully denying to such homicide, from unlawful accident or hasty passion, the same degree of guilt with the cool, deliberate act; nor that misdemeanors are specifically confined to the following category: disturbances of the public peace, trivial personal injuries, public nuisances and scandals, lewdness, and incentives to special crimes. It is evident that under neither of these heads can the crime of abortion be properly made to fall.

Difficulties of conviction, similar to those we have seen obtaining in England, and arising from requirement of proof that the means employed are unlawful, also present themselves in several of our States, though in most they have been wisely avoided. In Vermont and Massachusetts the agent administered, to be indictable, must have been a “poison, drug, medicine, or noxious thing;” in Illinois, a “poison, noxious, or destructive substance, or liquid;” in Texas, a “drug or medicine;” and in California, a “medicinal substance.” In Maine, New Hampshire, Connecticut, New York, Ohio, Michigan, Minnesota, Wisconsin, Oregon, Virginia, Missouri, Arkansas, Alabama, Mississippi, and Louisiana, the wording of the statute is sufficiently comprehensive; while in Indiana, there is used the curt but significant expression “anything whatever,” it not being necessary under this statute, in an indictment for administering medicine or any other substance, to procure abortion, for the agent to be described as noxious, or even its name to be stated. The use of instrumental and other violence is generally well provided against.

The truth is, as has indeed been ruled, that it should not be necessary to show, in pleading or evidence, that the drug, etc. administered is noxious or the like, the intent to procure abortion being the gist of the attempt; and if a person administer a bit of bread merely, with this intent, it is sufficient to constitute the offence. On the other hand, it has been laid down, that if the thing administered could of itself by no possibility produce the abortion, and it were proved that this fact were known to the person administering, the crime would not have been committed; on the ground that he must be presumed to have acted without the malicious intent which the law requires. Here, however, the frequent and important physiological effect through the imagination, in producing a definite result where such is supposed to be intended, has been entirely forgotten.

In several States, a seemingly unwise discrimination has been made by the law between the various methods employed. Thus in Michigan, Mississippi, Arkansas, and Minnesota, a special statute has been enacted for cases where the crime is effected “by any injury to the mother, which would be murder if it resulted in the death of such mother.” We have seen that the surest and most efficient means of producing abortion are those where no injury whatever is necessarily inflicted upon the mother. Such statutes as the above, therefore, actually tend to encourage the crime.

Another important obstacle to conviction is found in the latitude the statutes allow, generally by omission, to the plea of justification.

In Illinois and Louisiana no justification whatever is allowed by the law. In Connecticut the offence is penal where committed “willfully and maliciously;” in Vermont and Massachusetts to the latter of these expressions are added the words, “or without lawful justification:” but in each case, decision upon this point is left in great measure or wholly to the court. In Virginia, to be allowable, the abortion must have been necessary for the life of either the mother or child. In Maine, New Hampshire, Massachusetts, New York, Ohio, Indiana, Michigan, Missouri, Alabama, Mississippi, Arkansas, Texas, Minnesota, California, Oregon, and the Territories of Kansas and Washington, it must have been performed for the sake of the mother’s life alone.

In none of these States is a standard of such justification established by the statute. In Maine, New York, Indiana, Alabama, Oregon, and the Territory of Washington, this is not even attempted. In Texas, the statute acknowledges “medical advice.” In Missouri, Mississippi, California, and the Territory of Kansas, the sanction of “a physician” is allowed as excuse; in Arkansas that of “a regular physician;” in New Hampshire, Ohio, Michigan, and Minnesota, “two physicians” may decide on its necessity; but in every one of these States, the word “or” stands engrossed upon the statute, and thereby the precaution is practically invalidated; which could not have been the case had the word “and” have been used instead.

The truth is, as we have seen, that when such latitude is allowed by the law, it is inevitably abused. Medical evidence, medical sanction, and medical performance are absolutely essential for excuse in every case; if the opinion of a single physician is allowed to be sufficient, an escape is afforded for all instances where this privilege has been dishonored; the word “regular” is much more liable to be misinterpreted than the word “competent;” in every case before abortion can be justified, its necessity should previously have been decided and the possibility of crime thus prevented, by a consultation of at least two competent medical men.

We have pointed out many circumstances under which premature labor is demanded, by the rules of humanity and of medicine, for the sake of the mother’s life, and have seen that in several States it is for this cause allowed. But we have also shown that it is often equally necessitated for the sake of the child. In no State save Virginia is its justifiability for this purpose yet recognized by the statute law.

By the codes of most States, the mother is not punishable, however directly implicated in the crime. New Hampshire, New York, and Wisconsin, are apparently the only exceptions to this statement; the last two of them also not requiring proof of pregnancy for conviction, while by implication New Hampshire does.

By the statute of Indiana, all other women equally with the mother would seem released from prosecution, the word “he” being used of the persons indictable. The same oversight is noticed in the first section of the statute of Texas.

Objections were formerly made, especially in England, to the severity of the penalties then inflicted, (death in case of quickening, transportation or long imprisonment otherwise,) on the erroneous ground that this severity was wholly disproportionate to the guilt of the offence, and that, therefore, juries did not convict. The mistaken character of this supposition is shown by abundant proof in this country. In many States the penalties of the law are absurdly insignificant, tending, equally with the uncertainty of their infliction, to encourage the crime, and yet the same difficulties of conviction prevail. The true nature of these difficulties we have endeavored in great measure to explain, and we think it will have appeared that however numerous and serious they may be, they are yet not insuperable.

Before concluding this subject, it is proper that we examine more fully into the doctrine of the common law, to understand more precisely its meaning. In so doing, we shall quote freely from the leading authorities of the day, especially those of this country.

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The destruction of an unborn child is not at the present day murder at the common law, though such was formerly the case; to constitute which crime, the person killed must at the time of death have been alive, as we have shown the fœtus to be from the time of conception, and “a reasonable creature in being,” a quality in this connection denied to the child by the law, though in all other relations it inconsistently allows and affirms it; as it does also, and always, from the moment of birth, even though the funis is undivided and the placenta still attached.

To cause abortion after quickening, is not, as such, murder or manslaughter at common law, but a high misdemeanor.

Whether to cause, or to attempt, abortion before quickening is a penal offence at common law, has been differently decided. In several of the States, as Maine, Massachusetts, and New Jersey, it has been ruled by the Supreme Court not to be indictable, even as an assault, if done with the consent of the woman; on the ground that only in case of high crimes is the person assaulted incapable of assenting. The Pennsylvania court, however, has discarded this doctrine, and has decided that the moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated.

The distinction alluded to with regard to quickening, is allowed by an acknowledged legal authority to be at open variance not only with medical experience, but with all other principles of the common law. The civil rights of an infant in utero are respected equally throughout gestation; at every stage of which process, no matter how early, it may be appointed executor, is capable of taking as legatee or under a marriage settlement, may take specifically as “a child” under a general devise, and may obtain an injunction to stay waste.

When, in an attempt to procure an abortion, there is an evident intent to produce the death of the mother, and her death does actually occur, such attempt becomes murder at common law; but when nothing more is intended than to commit the misdemeanor, it is only manslaughter, being an instance of homicide from individual malice toward a third party, when the fatal blow falls on the deceased by mistake. It has been said, however, that this last is not the true doctrine, the destruction of an infant in utero being, even at common law, in some respects felonious, and the act in its nature malicious and deliberate, and necessarily attended with danger to the person on whom it is performed.

The use of violence upon a woman, with an attempt to produce her miscarriage without her consent, rules Chief Justice Shaw, of Massachusetts, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt, the death of the mother ensues, the party making such an attempt, with or without her consent, is guilty of murder, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where in like manner there is the consent of the parties.

Though to kill the fœtus in utero is as such, by the common law, no murder, yet if it be born alive, and die subsequently to birth from the wounds it received in the womb, or from the means used to expel it, the offence becomes murder in those who cause or employ them. If a person, intending to procure abortion, does an act which causes the child to be born earlier than its natural time, and therefore in a state much less capable of living, and it afterwards die in consequence of such premature exposure, the person who by this misconduct brings the child into the world, and puts it into a situation in which it cannot live, is guilty of murder, though no direct injury to the child be proved; and the mere existence of a possibility that something might have been done to prevent the death, does not lessen the crime.

The earlier English statutes, from their peculiar phraseology, held pregnancy essential for the commission of the crime, yet an attempt to produce abortion is now indictable at common law, though it fail by reason of the woman being, in fact and contrary to the belief of the party, not pregnant. For though as no man would attempt what he absolutely knew he could not in fact perform, nor would be deemed in law to have so attempted, and as every one being conclusively presumed to understand the law, no man can legally intend what is legally impossible, the rule as to facts is different; for men are not conclusively held by the law to know facts. And if a man fails in what he undertakes, because of an impossibility in fact, which he did not know, he is just as answerable as if the failure were from any other cause.

We have seen the mistaken basis, as regards the criminality of abortion, on which the common law is founded, and that while it recognizes the distinct existence of the fœtus for civil purposes, it here considers its being as totally engrossed in that of the mother.

A recent authority thus accounts for and defends the mistake. The wealth and prosperity of the country, it is assumed, and the growth and efficiency of its population, are alike matters of general concern, and therefore the law takes them under its care. As to population, there are in civil jurisprudence such rules, as that the husband may hold the lands of his deceased wife during his life, if before her death a living child was born, but not otherwise; the law thus offering, in effect, a reward for issue. It does not compel matrimony, because that would be an infringement of private rights; but for the same end, it does punish abortions.

Another writer has also implied that the common law, in making fœticide penal, had in view the great mischiefs which would result from even its qualified toleration: namely, the removal of the chief restraint upon illicit intercourse, and the shocks which would be sustained thereby by the institution of marriage and its incidents; among which the delicacy of women.

In unison with these opinions, Judge Coulter, of Pennsylvania, has ruled, that “it is not the murder of a living child which constitutes the offence, but the destruction of gestation.”

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If our previous assumptions of the actual character of criminal abortion be granted, and we believe that they have been proved to a demonstration, it must follow from the subsequent remarks that the common law, both in theory and in practice, is insufficient to control the crime; that in many States of this Union, the statutory laws do not recognize its true nature; that they draw unwarrantable distinctions of guilt; that they are not sufficiently comprehensive, directly allowing many criminals to escape, permitting unconsummated attempts, and improperly discriminating between the measures employed; that they require proofs often unnecessary or impossible to afford; that they neglect to establish a standard of justification, and thereby sanction many clear instances of the crime; that by a system of punishments wholly incommensurate with those inflicted for all other offences whatsoever, they thus encourage instead of preventing its increase; and that in many respects they are at variance, not merely with equity and abstract justice, but with the fundamental principles of law itself.