\3 REPORT ON CRIMINAL ABORTION. By HOMER O. HITCHCOCK, M. D., PRESIDENT OF THE STATE BOARD OE HEALTH. [Reprinted from tlie Fourth Annual Report of tlie Michigan State Board of Health, for the year 1876. ] (,tV. ^ H REPORT ON CRIMINAL ABORTION. BY WHAT MEANS CAN INFANTICIDE BE MORE EFFECTUALLY SUP- PRESSED, AND DISEASE AND DEATHS FROM CRIMINAL ABORTION PREVENTED? At previous meetings of this board certain questions in regard to the possi- ble suppression of criminal abortion were presented from Dr. J. H. Beech and Dr. John P. Stoddard, which, with certain letters from these gentlemen, were referred to the Committee on Legislation. The following are the questions and letters thus referred : QUESTION FOR THE STATE BOARD OF HEALTH. Can any legislation reach that class of persons who teach (and lend means for) the art of abortion? Would it not be effective for a time to stir up the people by attempting to make it the duty of coroners to hold inquests in every case of death when there exists the least suspicion of such cause ? Respectfully Yours, BEECH. Coldwater, Mich., May 21, 1875. I Coldwater, Mich., Aug. 15, 1875. H. B. Baker, M. D., Lansing , Mich., Sec'y Mich. State Board of Health : Sir : — *************** In regard to deaths from induced abortion, it seems to me that if the law made it more explicitly the duty of coroners to investigate all cases of death in which rumor or other indices of suspicion point toward such cause, a very considerable check upon the crime might be effected. It might be made an especially punishable offence for any physician, surgeon, or midwife to allow the burial of any patient, or person, in whose death said practitioner had any knowledge or suspicion of abortion having occurred, without having reported the same to an acting and efficient coroner or prosecuting attorney, whose duty it should be to give all of such cases a modest but thorough investigation. Professional persons often have knowledge which they in false honor believe that it would be meddlesomeness to reveal, but which they would not conceal in face of the strongly expressed mandates of the law. Owing to the delicate nature of the inquest, it might be proper that a jury for such an investigation should be constituted of less number than in other cases, but selected with greater care, even perhaps requiring the certificate of a Judge of court, or a County Clerk, that each is a proper person to sit in such cause. If the principle is not considered radically unjust or dangerous (and I do not see how it can be), it would be advantageous to protect the informer by secrecy, as is partially the custom of grand juries. The name of the informer need not go beyond the first officer, but the information of the criminal courts, by any person that he or she had made a statement of such suspicions to any person qualified to act as a coroner, should be sufficient to arraign such officer for maladministration. 56 STATE BOARD OF HEALTH— REPORT OF SECRETARY, 1876. I am no lawyer and have conferred with none in regard to my ideas upon this subject, because I believe that your honorable Board can bring more wisdom and efficiency to bear upon the question. If it is chimerical, it cannot fail to meet deserved oblivion at your hands. * , * *********** * * * Yours, etc., J. H. BEECH, M. D. QUESTION FOR THE STATE BOARD OF HEALTH. Can any legislation be had, or any legal procedures be inaugurated, whereby the abortionist may -be convicted and adequately punished, and the secret and terribly prevalent crime of abortion be diminished in society? Would it not in a great measure accomplish this desirable end if every death of a child before birth,— as occurs in abortion, — should be considered as a sudden and un- known death, and that it be made the duty of coroners to hold inquests in every such case of the death of an unborn child, sole reference being had to the death of the child, and not to the condition of the mother. In short, hold that death or murder before birth is as much death or murder as after birth. Respectfully yours, JOHN P. STODDARD, M. D. Albion, Mich., Sept., 1875. Albion, Michigan, Sept. 23, 1875. Henry B. Baker, M. D., Secretary of the State Board of Health. My Dear Doctor: — I had intended to have written long ago to you in regard to that question for the State Board of Health, but press of business and ill health have hitherto forbid. Enclosed you will find the same as I had conceived it. The more 1 reflect upon it the more do I think my position tenable, especially if our statute laws concerning abortion could be so amended as to consider the person or persons who bring on abortions, no matter at what age of the foetal life, as guilty of murder. But even as the law now is, if medical men generally, — and then soon the public would do the same, — would consider the killing of a child in utero , at any age of the same, as much a crime as they would after birth, then there would at once be seen the same propriety in calling the death of the child in utero , as occurs in abortion, a sudden death, and also the same propriety in calling for the sitting of a coroner’s jury over the same, as we now consider in a child after birth who is found suddenly dead. The matter of birth I consider to be only one stage in the progressive and unfolding life of each individual, and death before birth or after, is as truly death in the one case as in the other. The time is the shifting element, the accident, if you please, while death is the one constant and main fact, which time cannot eliminate, and should not be allowed to cover up. Thus the killing of the child, in my idea, while yet unborn, is as much murder as when killed in the mother’s or nurse’s arms. To my mind the crime of taking the life of a child while yet in its mother’s bosom, while yet connected to her and developing life out of her life, while yet in “ the work- shop of nature,” has a touch of greater crime and heinousness about it than the mur- der of a person at mature strength. It interferes with God’s laws more nearly at the fountain; it is a breach of the confidence imposed upon humanity ; it is a cowardly attack upon a life left wholly and implicitly in the care and protection of another being. I might enlarge upon this point, but I guess you see my point. I should be glad to hear from you at at any time, Truly yours, JOHN P. STODDARD. H. B. Baker, M. D., Lansing , Michigan: Dear Doctor: — Your favor of yesterday is before me and considered. I cheerfully accept the plan of Dr. Stoddard, as intimated by you, in reference to still-born chil- dren when the mothers are or have been living with husbands within the u period of incubation,” but in other cases as criminality in degree must have been incurred, the supposition would be strong enough to fix the case in proper line for legal investigation. * * * *********** * * October 22, 1875. Truly yours, etc., J. H. BEECH, Coldwater, Mich. CRIMINAL ABORTION. 57 Among all the nations of antiquity there has prevailed to a greater or less extent the horrid custom of exposing new-born children, or of putting to death, not only the new-born, but even older, children. Sometimes they were strang- led, sometimes immolated, sometimes drowned or buried alive, and sometimes thrown to wild beasts or voracious reptiles. These innocent victims were among some nations sacrificed to their gods, in barbarous but religious ceremony; while among others their destruction was required by law, if, upon a legal examination, they were found to he weak or deformed ; and among others still the custom was encouraged lest the popula- tion should increase too rapidly. “This practice, ” says Dr. Beck, “was not upheld merely by the sanction of law, it was defended by the ablest men in Greece. Aristotle, in his work on government, enjoins the exposure of children that are naturally feeble and deformed, in order to prevent an excess in popu- lation.” He adds : “If this idea be repugnant to the character of the nation, fix at least the number of children in each family, and if the parents trans- gress the law, let it be ordained, that the mother shall destroy the fruit of her body before it shall have received the principles of life and sensation.” * This custom was by no means confined to the low, ignorant, and degraded nations, but, “when the Roman empire was at its highest pitch of grandeur, the destruction of infant life, in all its various stages, was practiced by high and low — rich and poor. Abortion was perpetrated, and children were exposed, almost without censure — certainly without punishment.” f The Jews, while continuing steadfast, faithful in their own religion, were free from these crimes. Indeed, abortion and infanticide were not forbidden, because unknown among them. J ■% But when they became idolatrous through their intercourse with the Philis- tines, even the Jews offered up their infant children in sacrifice to Moloch, and Tophet was made horrid by these practices. But to the pure Jewish religion,, as well as to real Christianity, infanticide after, as well as before birth, was abhorrent. Tertullian, as quoted by Dr. Beck, says: “Christians now are so> far from homicide that, with them, it is utterly unlawful to make away with a child in the womb, when nature is in deliberation about the man ; for to kill a. child before it is born, is to commit murder by way of advance ; and there is no difference whether you destroy a child in its formation or after it is formed and delivered ; for we Christians look upon him as a man who is one in embryo.” And wherever Christianity has been introduced among modern heathen nations, infanticide has at once ceased to prevail and has been forbidden under severe penalties. Abortion too, has been, and is, held to be a crime of equal enormity among all persons who have really learned and accepted the princi- ples of the Christian religion. But notwithstanding the custom of exposing or killing children after birth, for any cause, has fled away from every nation before the advance of these pure , and benignant principles, and the act is now considered everywhere under the sway of Christianity as murder the most heinous, yet there still remains a shadow of the false philosophy and the ignorance of the laws of life, which prevailed among the ancients. * Beck’s Medical Jurisprudence, Vol. 1, p. 376. t Beck’s Medical Jurisprudence, Vol. 1, p. 379. $ Beck’s Medical Jurisprudence, Vol. 1, p. 372 58 STATE BOARD OF HEALTH— REPORT OF SECRETARY, 1876. Many a nominally Christian home is desecrated by child -murder, by abortion being procured in the early months of pregnancy. Many a nominally Christian mother, who would be horrified by even the thought of strangling the babe upon her breast, and would refuse to produce miscarriage upon herself after the fifth month of pregnancy, nevertheless readily consents to an abortion being produced before the fourth month, and, if her “conscience is not wholly void of offense/’ yet she considers the act, if not justifiable, at least venial. Whence comes this impression , if not conviction, that is so widely spread among even Christian people, and which excuses, if not justifies, so many child murders in our land, and which furnishes so large and so tempting and so com- paratively safe a field for so many devilish-minded abortionists to labor in? Does it not come directly from the false philosophy and the ignorance of the true laws of life which prevailed among the ancients? And is it not perpetu- ated and justified by the laws even of Christian lands which to some degree were molded by, and and which now perpetuate that ignorance and false philosophy of the ancients? In discussing the question when the foetus is to be considered as endowed with life, Dr. Beck says: “In reviewing the various opinions which have been advanced oh this subject at different periods, it will abundantly appear that too often fancy has usurped the prerogative of reason, and idle speculation been substituted in the place of rational investigation. The consequence has been that doctrines have been promulgated, not only the most erroneous and absurd in their nature, but the most dangerous in their tendencies to the best interests of society.”* “The ancients believed that the sentient and vital principle was not infused into the foetus until some time after conception had taken place.” “Accord- ing to Hippocrates, the male foetus became animated at thirty days after con- ception; while the female required forty-two.” “The stoics believed that the soul was not united to the body before the act of respiration, and consequently that the foetus was inanimate during the whole period of utero-gestation. This doctrine prevailed until the reign of Antoninus and Severus, when it gave way to the more popular sentiments of the sect of the Academy , who main- tained that the foetus become animated at a certain period of gestation.” This erroneous idea crept into the “canon law of the church of Kome, which also distinguished between the animate and inanimate foetus,” in their punish- ments for its destruction. “Galen considered the animation of the foetus to take place on the fortieth day after conception.” “ Another contended that eighty days were requisite for the animation of the female, while only forty were necessary for the male.” Others again made a distinction between the im- perfect embryo and the perfectly formed foetus, and considered abortion of the latter only as a crime deserving the same punishment as homicide ; a distinc- tion of which it is justly remarked by a celebrated writer on medical jurispru- dence, ‘ennemie a la morale et de l’humanite digne de l’ignorance et des preju- ges de ses auteurs.” “All the foregoing opinions,” says Dr. Beck, “wholly unsupported either by argument or experiment, might be dismissed without a comment, were it not to point out the evils to which they have given rise. It may be said of them with perfect truth that their direct tendency has been to countenance, rather than to discourage the destruction of the foetus, at least in *Beck’s Medical Jurisprudence, yol. I, p. 404 to 408. CRIMINAL ABORTION. 59 the earlier months of pregnancy. On a subject of this nature, it was to be supposed that legal decisions would be influenced in a great measure by the opinions of philosophers and physiologists ; and accordingly, while the delu- sion of the stoics continued its sway, the law could view nothing very criminal in wilful abortion.” “In times more modern, an error no less absurd, and attended with conse- quences equally injurious, has received the sanction, not merely of popular belief, but even of the laws of many civilized countries. The error consists in denying to the foetus any vitality until after the time of quickening. The codes of almost every civilized nation have this principle incorporated into them, and accordingly, the punishment which they denounce against abortion pro- cured after quickening, is much severer than before. The English law ‘ consid- ers life not to commence before the infant is able to stir in its mother’s womb.’ ” Our own statutes upon this subject are based upon the English law and are as follows : Compiled Laws, “ (7541.) Sec. 32. The wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.” “(7542.) Sec. 33. Every person who shall administer to any woman preg- nant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be there- by produced, he deemed guilty of manslaughter.” “ (7543.) Sec. 34. Every person who shall wilfully administer to a pregnant woman any medicine, drug, substance, or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscar- riage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be nec- essary for that purpose, shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.” “(7544.) Sec. 35. In case of prosecution under sections thirty-three and thirty -four of this chapter, it shall not be necessary for the prosecution to prove that no such necessity existed, or that the advice of two pliysieians was not given.” It will be seen that these statutes recognize and give a semblance of authority to a distinction wholly unfounded in physiology, irreconcilable with the princi- ples of philosophy, and which leads to acts abhorrent to the principles and pure sentiment of Christianity. “Indeed,” says Dr. Beck, “no other doctrine appears to be consonant with reason or physiology, but that which admits the embryo to possess vitality from the very moment of conception. If physiology and reason justify the position just laid down, we must consider those laws which exempt from punishment, in any degree, the crime of producing abortion at an early period of gestation, as immoral and unjust. They tempt to the per- petration of the same crime at one time, which at another they punish with death. “In the language of the admirable Percival, ‘to extinguish the first spark of life is a crime, of the same nature, both against our Maker and society, as to 60 STATE BOARD OF HEALTH— REPORT OF SECRETARY, 1876. destroy an infant, a child, or a man : these regular and successive stages of existence being the ordinances of God, subject alone to his divine will, and appointed by sovereign wisdom and goodness, as the exclusive means of pre- serving the race, and multiplying the enjoyments of mankind .’ 99 It is well known that under these laws abortions are frequently produced, and in many communities are winked at as no more than peccadillos, and by some persons really defended and encouraged. There are also a set of persons, male and female, who make a secret trade of this business, and do these deeds of blood and murder for paltry gold or dirty “rags,” and who almost always go undetected or at least unpunished. This sentiment has settled down, in many communities, as a kind of mildew upon all grades of society. Such is the condition of society and such the status of this crime, which have prompted from two able physicians of this State the questions presented, and the letters addressed to this board. The intelligent moral sense of a people is to be at once the basis and the mea- sure of its legislation, upon moral subjects. If the code of laws are much in advance of the intelligent moral sense of the people, the laws fail to be executed and soon become a dead letter. If the code of laws are much below the moral sense of the more enlightened portion of the • people, there is a tendency to dull the moral sense and to lose sight of nice moral distinctions. Now should we gain anything by the enactment of such a law as is sug- gested in the question and letters at the head of this article ? It appears to me somewhat questionable, and for the following reasons : 1st. Laws which aim to secure their ends by difficult or doubtful means, are apt to be of partial or questionable utility, or entirely nugatory. There are many cases of abortion purely accidental. So are many deaths of adults accidental. Coroners inquests are very properly held in the latter cases, but I am sure coroners inquests in the former cases would be repugnant to public sentiment. 2d. Most persons on whom abortion is procured are known only to themselves or their husbands to be pregnant. The deed is wholly concealed as is the body of the murdered foetus. 3d. If the deed were known to have occurred, and the body of the foetus were really brought under a coroner’s inquest, it would be exceedingly difficult, if not quite impossible by inspection, to determine whether the death occurred from accident, or other natural causes. What signs would be depended upon by a coroner to show that a foetus — dead in an early month of its existence — over which he was holding an inquest, had lost its life by fell design, or by an un- fortunate accident, or a diseased womb which refused to house it longer? 4th. The law suggested specifies that in the coroner’s inquest “sole reference should be had to the condition of the child, and not of the mother,” while often, in the body of the mother, if it could be searched, would be found the surest, if not the only evidences of guilt, at least by instrumental interference. The terms “quickening,” “quicken,” “quick with child,” and “quick child,” that have been bequeathed to our laws by the old English law, incon- sistent as they are with reason and the true principles of physiology, have brought with them and made prevalent some of the most erroneous and unfor- tunate ideas. There is very generally current among the people the notion CRIMINAL ABORTION. 61 that before a pregnant woman “quickens,” i. e. before the fourth month of pregnancy, there is no real life in the foetus, or at least that it is not a “living soul,” and that to destroy it is no real crime. Many people, otherwise of good intelligence appear to be entirely ignorant of the first principles of embryonic life, or else smothering tlicir consciences for the time by the vapors of an in- tense selfishness, make themselves believe a lie. Physicians, too, are not wanting who really believe this old error, or at least do nothing towards removing it from the minds of their patrons, and in many instances, it is to be feared, too easily excuse themselves for being particeps criminis in this work of real child-murder. I claim that our laws on this subject , — not up to the intelligence of educated people , and not in consonance with reason and the laws of physiology, — are justly chargeable with the general diffusion of this dangerous sentiment, and the general obtusion of the public conscience as to moral distinctions on this subject. Do not the phraseology of our laws, and the distinctions made by them in the procuring of abortion, before or after quickening, tend to confuse the public intelligence, and to lower the tone of the public conscience, and thus to foster the prevalence of abortion in the early months of pregnancy? Through this Board, I would respectfully call the attention of jurists and the law-making power of this State to these considerations, and ask if this phrase- ology of our laws should not at once be changed so as to make it entirely in con- formity with the principles of reason, and the laics of physiology. This change in the phraseology will of necessity carry with it the discontinu- ance of the distinction in the penalties for abortion procured or attempted before or after quickening. I am sure that our laws thus amended would be approved by the intelligence of our people, and would be a great awakener of their consciences, and would do much towards decreasing the number of abor- tions in the early months of pregnancy. I am sure that what the people in Michigan as well as in other States, need . in many fields of legislation, is, not so much new and more explicit and compre- hensive laws, as the general diffusion of real practical knowledge upon such subjects, and especially the quickening and arousing the conscience already intelligent. It is right here that much good can be done by physicians and by all hyqienists in giving prevalence to the truth, that at the very moment of conception life begins in the foetus, and that no other time can be named so reasonable when the human foetus becomes a living soul ; and that to destroy it at any time before birth is as much murder as at any time after birth. That the consciences of the people be aroused upon this subject is quite as much a necessity as that the people be informed upon it. The reality and enor- mity of the crime need in every suitable way to be pointed out, and made pun- gent by explicit law and condign punishment. It is true that at present abortion, especially in the early months of preg- nancy is far too prevalent, and that far too few of those who engage in it are brought to punishment. The fact that abortionists do their deeds mostly in darkness, explains in some degree why so few of them are brought to punishment. But how many whose guilt has been proven beyond a question, have escaped merited punishment by the disagreement of a jury, — a disagreement accounted for by the want of real 62 STATE BOARD OF HEALTH-REPORT OF SECRETARY, 1876. intelligence, in some of the jury, of the true laws of life in the foetus, or the demoralized consciences of others who had perhaps availed themselves of such services in the desecration of their own homes ? Our laws upon this matter, changed as I have suggested, would threaten condign punishment to this crime whenever committed, would tend to give intelligence to jurors now ignorant of the true laws of foetal life, and would, I am sure, be the strongest and most natural barrier to the commission of this crime. Kalamazoo, August 1st, 1876.