A LECTURE BEFORE THE CLASS OF HAHNEMANN MEDICAL COLLEGE,
BY PROF. A. E. SMALL.
Next to the crime of infanticide is that of criminal abortion. It matters not by whom committed, whether by the mother herself or some interested friend, nurse or physician. The procuring of abortion, under all circumstances, is a direct violation of the laws of the physical constitution, and . . . a violation of that holy commandment, “Thou shalt not kill.”
Before we proceed to discuss the nature of this crime in the light of reason and in reference to what legislation there has been upon the subject, it is proper to test its heinousness in the light of the moral law, which regards the wilful killing of a human being, at any stage of its existence, nothing short of murder. When we consider the fact that foetal life is human life, distinct from that of the mother's, and dependent upon an organization as distinct from that of the mother's as if it were entirely liberated from its resting place in her womb, we cannot avoid the conclusion that the destruction of such a being would be the destruction of a human life, and that he or she who lends an agency in perpetrating the deed would, in the eye of the moral law, be guilty of murder. In order to gain a better understanding of the bearings of the subject, abortion in the abstract must be considered.
To begin with a proper definition—it is a violent and premature expulsion of the product of conception, independently of its age, viability and normal formation. In the investigation of the subject as a crime, all cases of abortion that result from natural causes, or the result of accident, or justified by the rules of medicine, whether to save the life of the mother or her child, will be set aside. We shall confine our discourse to such cases only where the attempt at premature expulsion of the product of conception is artificially made, unnecessarily and intentional, and without which they would not otherwise have occurred.
The laws of the land do not [sufficiently] recognize that unnecessary abortion per se is a crime. . . . [I]t is regarded a mere misdemeanor. . . .
Able authorities upon the subject have pointed out the inconsistency of the law as contemplating the crime as directed against the mother and not against the foetus, when in fact no criminal intent against the mother can be affirmed, but against the foetus.
The act, when unnecessarily performed [to kill the baby rather than to save him], manifestly seems from one of two reasons—either to prevent the product of conception from receiving life, or if living, to destroy it. We shall produce evidence to show that the former cannot be the case, and consequently that the latter is the sole intent when the act is committed. To constitute a crime, a malicious or wicked attempt is supposed to exist, and as the intent in attempting to produce abortion is against the product of conception, and not against the mother, we cannot but regard this assumption of the law as erroneous; tending rather to increase the frequent repetition of the crime instead of exerting a wholesome influence against it. For unless the woman die in consequence of the attempt, it is declared in every state of pregnancy a mere misdemeanor; or where injury is done the mother, not necessarily fatal to her life, the crime may be considered a felony and punishable by fine or temporary imprisonment. The magnitude of the crime against the second human victim [is] entirely overlooked.
We shall for the present omit the further consideration of the subject as treated both in common and statutory law, our purpose being to show that abortion is primarily a crime of the most heinous character, directed with malicious intent against human embryotic and foetal life, and in pursuing this course we shall attempt to show the fallacy of the arguments urged by interested parties in extenuation of the offense.
Excepting all accidental and necessary cases of abortion [to save the mother or infant, before cesareans were available], it must be evident that abortions must be intentional and must be occasioned by the “malice aforethought” of the law. It has been stated that the malicious intention, unless otherwise shown, is not directed against the mother but against the product of her womb. Hence the whole criminality of the offense turns on this one fact—the real nature of the foetus in utero. If the foetus be a lifeless excretion, however soon it might have received life, the offense would have been of minor consequence.
“If the foetus be already and from the very outset a living human being and existing independently of its mother, though drawing its substance from her, its destruction in every stage of pregnancy is MURDER. Every act of procuring abortion,” rules Judge King of Philadelphia, contrary to the usual interpretation of the law, “is murder, whether the person perpetrating such act intended to kill the woman or merely feloniously to destroy the fruit of her womb.”
In Doctor Storer's contributions to Obstetric Jurisprudence may be found a complete reply to the plea of ignorance of the nature of the crime, which is often urged in extenuation. He says:
“Ignorance of the law is held no excuse. The plea of ignorance of guilt could hardly better prevail, where its existence is implied by common sense, by analogy, and by all natural instinct, binding even on brutes. * * * Common sense would lead us to the conclusion that the foetus is from the very outset a living and distinct being. . . . The foetus previous to quickening, must exist in one of two states, either death or life. The former cannot take place, nor can it ever exist except as a finality. If its signs do not at once manifest themselves, as is generally the case, and the foetus is retained in utero, it must either become manified [sic] or disintegrated—it can never become vivified. If therefore death has not taken place, and we can conceive no other state of the foetus save one, that, namely, life, must exist from the beginning. . . .
"The human instinct, unaided by reason, invariably leads to the protection of embryonic and foetal life. . . . Whatever ideas the human mind by reasoning may have forced itself to believe or entertain, let the slightest proof of the existence of foetal life be alleged, and maternal instinct at once makes itself known.”
Thus far incidental proof concerning the commencement of foetal life, and consequently the manifest guilt of unjustifiable abortion becomes apparent. . . .
It will be conceded then that the period of manifest quickening is by no reasonable conclusion to be regarded the commencement of foetal life. The period set by some of the old writers was the third day after conception, and this is quite as reasonable, and yet neither is to be accredited as true.
In order to arrive at the conclusion that embryotic life exists from the commencement to the end of pregnancy, it is not necessary to set up the claim of sentience and will, as some writers have done. For while perfection of endowment does not exist with the embryo, its independent life can be conceded, with prophetic endowments for future development in the womb and after birth of all the attributes of human perfection. We must concede this if anything, for how can the embryo merge into the foetus without a perfectly independent excito-motory system distinct from that of the mother? If we admit this we are brought directly to the conclusion, that the existence of a distinct and independent nervous centre must be as self-acting and living as that of the mother.
If we have succeeded in proving the existence of foetal life, before quickening has taken or can take place, even though the beginning of undeveloped faculties, the inalienable rights of a human being are implied, and this should compel us to believe that [intentional] abortion is a crime.
This once established, we are struck with a full sense of human degradation; of mothers imbruing their hands in their infant's blood; of fathers equally guilty, counseling and procuring the commission of the crime; of nurses who lend themselves to the infamy; of members of the medical profession made wicked by their wholesale murders, out-Heroding Herod, eclipsing in criminality the pirate upon the seas, the midnight robber or highwayman; of the wretches who make this kind of murder a trade; who go forth with falshood and lies, in defiance of the mandates of the Almighty; of the public complacency that nurses the crime, or palliates it, or with insulting claims of legal assumption that it is a mere misdemeanor to go forth as a destroying angel to prey upon human life. Who can uphold or defend so common a violation of all just law, human and divine? Who can justify such assault upon all instinct and reason? Let those answer who would seek, if they could, some reasonable excuse for this waywardness.
That criminal abortion is carried on to a great extent in our country is indeed probable, and that it is carried on apparently by those having high claims to respectability we also admit, and further we admit the plausibility of the motives that frequently lead to the act; and these are of sufficient importance to enter concisely into our discussion. Does not the motive give moral quality to the act?—some may inquire. We have already said that necessary and justifiable abortions, in accordance with the rules of medicine, are sometimes demanded [to save mother and child, before cesarean sections]. The lives of human beings are under more circumstances than a few sacrificed to prevent greater evils. But far be it from us to offer any palliation for the crime of murder. When a woman, a wife, either with or without the consent of her husband, applies to an abortionist for the purpose of ridding herself of the products of conception, she will always make a show of reason for the act, by attempting to show a necessity for it. She may set up the claim of being unable to have the responsibility of children; that she cannot educate them or keep them fed and clothed, or above degradation; that her own health will not permit it; that the period of gestation subjects her to confinement and away from social life, and she might as well be dead as alive. We have known some physicians to listen to an appeal like this and yield to the dictates of a blind sympathy, especially when a generous fee was forthcoming to more effectually close their minds against all sense of moral obligation, and plant themselves upon the flimsy reasoning of such women, and while prostrate before mammon would write a prescription for some powerful deobstruent. But they lend countenance to crime by such acts and become particeps criminis in a murderous transaction.
Such a woman's reasonings are as baseless as a fabric upon the sand. She has a husband to father her offspring, a Heavenly Father to protect her on the voyage of life, and in all probability an angel sent for her future comfort; and would any but a God-forsaken father and mother, and a God-forsaken physician, ever enter into a conspiracy to destroy human life upon such flimsy grounds? Thousand of cases of this kind are constantly occurring in the large cities and towns of our country, to enrich such female wretches as Mads. Restell, Beaumont and others, who levy imposing taxes in order to support them in the crime. By all that is human, all that is noble and grand in the attributes of true manhood, and by every consideration that relates to time and eternity, every honorable physician should set his face against this practice and hold it up as murder, in public and private. Let him scorn to sympathize with the barbarity and feel that fees taken for such agency would produce an uncomfortable sensation about his neck and bind him as firm as fate to perdition.
But it may be urged that illegitimate pregnancy is a different matter, and that every right-minded physician should be ready to save the reputation of a great many victims of this sort from utter ruin and their families from disgrace. A mere glance at the crime of abortion, without considering its heinous nature, might cause the unwary physician to fall into temptation. A young lady of previous good reputation has fallen. Will it raise her from degradation to make a violent assault upon the intra-uterine life that is the fruit of her imprudence, or in other words would any physician feel himself worthy of saying his prayers at night, after he had lent his hand to commit a deliberate murder to save the reputation of an already disgraced young woman? What good would he accomplish by the act? Experience proves that the fallen one seldom recovers, and her seducer is made no better, and the physician made more infamous than either.
Such nevertheless should command our sympathy, and we should do all we can to promote their temporal, physical and moral well-being. And we can do much in that direction, if we regard first of all our duty to God and our obligation to obey all just laws, both human and divine. It will be proper to guard the reputation as far as we can and by all possible means consistent with divine and human laws. But God forbid that we should do evil that good may come.
Historical note: The Hahnemann Homeopathic Medical College owed its existence in large part to Abraham Lincoln. In 1854, Lincoln drafted the charter for the school, and lobbied the Illinois legislature for approval. Originally from Maine, and then the first teacher of physiology and pathology at the Homeopathic Medical College in Pennsylvania, Prof. A.E. (Alvin Edmond) Small moved to Chicago in 1856 and served as professor, dean, and president at Hahnemann.