Miscarriage : Part 5

The Prospective Mother: A Handbook for Women During Pregnancy
by J. Morris Slemons

(Page 13 of 18)

Invalidism which follows pregnancy and which may be fairly regarded as chargeable to it depends, in most instances, upon an infection acquired at the time of delivery. Infection occurs more frequently when pregnancy ends during the early months, because in this category is included the great majority of criminal abortions, which are usually induced without regard for surgical cleanliness. Fatal complications, or serious consequences which narrowly escape a fatal ending, are common among women who attempt to rid themselves of an unwelcome pregnancy. As they are ignorant of aseptic precautions, their manipulations must necessarily contaminate the site of operation; for this reason and others as well women who attempt to perform an abortion upon themselves imperil their lives. The danger is scarcely less when abortion is induced unlawfully by incompetent operators; for lack of skill, the need of secrecy, and the desire of haste all interfere with necessary aseptic technique. Everyone knows that sad accidents befall those who submit to such operations; but it is not generally recognized that these cases are largely responsible for the ill-repute borne by miscarriage in general. On the other hand, properly supervised miscarriages are attended by no greater danger and probably less than delivery at full term.

Criminal Abortion. The destruction of a pregnancy, except when its continuance threatens the life of the patient, is forbidden by law. The important ethical and religious aspects of the act which the law thus stigmatizes as criminal we may properly neglect. Although various religions present a diversity of teaching relative to its moral nature, all agree in regarding it as sinful. Equally important, however, is the fact that no matter what opinion anyone may hold as to the morality of the act he is bound to obey the law. This is apparently not clearly understood by the laity, for many persons think that a physician may terminate pregnancy whenever he is so inclined. If the liability to criminal prosecution which a physician would assume should he comply with a request for the means of destroying pregnancy were clearly realized, patients would not beseech him to incur the risk of heavy find and long imprisonment merely to gratify their own convenience or to save them from disgrace.

The Common Law, an inheritance from England, enriched with authoritative decisions by our own courts, is the groundwork of the law in all the States, and its principles are binding in the absence of express statutes. At Common Law, abortion is punishable as homicide when the woman dies or when the operation results fatally to the infant after it has been born alive. If performed for the purpose of killing the child, the crime is murder; in the absence of such intent, it is manslaughter. The woman who commits an abortion upon herself is likewise guilty of the crime.

The great majority of those who desire the interruption of pregnancy feel they have not assumed an illegal position so long as they avoid instrumental procedures. That is not correct, for even at Common Law it is a misdemeanor to bring about the death of an unborn child by the use of drugs or by any other means.

At Common Law there was a difference of opinion as to whether all induced abortions were illegal. Many courts formerly held that quickening was a necessary prerequisite; but under the modern statutes, practically without exception, the law disregards the period of pregnancy at which the abortion is provoked. Since the time of conception determines the beginning of embryonic development, to prove that the act was committed before fetal movements were perceived is no longer a valid defense. This has been emphatically stated by Judge Coulter, of Pennsylvania, who said: "It is not the murder of a living child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryonic life and gestation has begun, the crime may be perpetrated."

Each commonwealth has enacted its own statutes for the regulation of abortion. In many states, simply to seek the means for destroying pregnancy is a criminal act. Thus, Indiana, perhaps the most progressive of the States in reconstructing its criminal code to accord with modern sociological teaching, has enacted a law which I quote from Burn's Indiana Statutes, Revision of 1908, Vol. I, page 1029. "Every woman who shall solicit of any person any medicine, drug or substance, or thing whatever and shall take the same, or shall submit to any operation or other means whatever with intent thereby to procure a miscarriage, except when done by a physician for the purpose of saving the life of the mother or child, shall, on conviction, be fined not less than ten dollars, and be imprisoned in the county jail not less than thirty days nor more than one year." To include the woman as a party to the crime is a signal mark of progress toward bringing abortion under effective legal control. Heretofore, the perpetrator alone has been responsible, and in most States he remains so, while the woman is regarded as a victim. Clearly, that is unjust, for criminal abortions are rarely, if ever, performed without application by the subject of the operation. According to most of the statutes no distinction is made between the attempt at abortion and its accomplishment. Irrespective of the outcome, those who supply drugs or employ instruments purposing the destruction of pregnancy are guilty of the offense.

An extensive analysis of the various State laws is unnecessary; the mention of a few statutes, selected from different sections of the country, will suffice to indicate the character of prevalent legislation. Massachusetts imprisons those found guilty of abortion for a period of three years or less, and permits a fine of one thousand dollars. In Pennsylvania the same prison sentence is imposed, though the fine may not exceed five hundred dollars. Three years is the minimum imprisonment in Virginia, and a maximum of ten years is allowed. Colorado's law duplicates that of Massachusetts. California imposes no fine, and prescribes a sentence of from two to five years in the State prison. All the statutes make the offense much graver when the woman dies as a result of the practice. Under these circumstances, the crime never takes lower rank than manslaughter; and generally it is murder.