1911 Encyclopædia Britannica/Abortion

ABORTION (from Lat. aboriri, to fail to be born, or perish), in obstetrics, the premature separation and expulsion of the contents of the pregnant uterus. It is a common terminology to call premature labour of an accidental type a “miscarriage,” in order to distinguish “abortion” as a deliberately induced act, whether as a medical necessity by the accoucheur, or as a criminal proceeding (see Medical Jurisprudence); otherwise the term “abortion” would ordinarily be used when occurring before the eighth month of gestation, and “premature labour” subsequently. As an accident of pregnancy, it is far from uncommon, although its relative frequency, as compared with that of completed gestation, has been very differently estimated by accoucheurs. It is more liable to occur in the earlier than in the later months of pregnancy, and it would also appear to occur more readily at the periods corresponding to those of the menstrual discharge. It may be induced by numerous causes, both of a local and general nature. Malformations of the pelvis, accidental injuries and the diseases and displacements to which the uterus is liable, on the one hand; and, on the other, various morbid conditions of the ovum or placenta leading to the death of the foetus, are among the direct local causes. The general causes embrace certain states of the system which are apt to exercise a more or less direct influence upon the progress of utero-gestation. The tendency to recurrence in persons who have previously miscarried is well known, and should ever be borne in mind with the view of avoiding any cause likely to lead to a repetition of the accident. Abortion resembles ordinary labour in its general phenomena, excepting that in the former hemorrhage often to a large extent forms one of the leading symptoms. The treatment embraces the means to be used by rest, astringents and sedatives, to prevent the occurrence when it merely threatens; or when, on the contrary, it is inevitable, to accomplish as speedily as possible the complete removal of the entire contents of the uterus.

Among primitive savage races abortion is practised to a far less extent than infanticide (q.v.), which offers a simpler way of getting rid of inconvenient progeny. But it is common among the American Indians, as well as in China, Cambodia and India, although throughout Asia it is generally contrary both to law and religion. How far it was considered a crime among the civilized nations of antiquity has long been debated. Those who maintain the impunity of the practice rely for their authority upon certain passages in the classical authors, which, while bitterly lamenting the frequency of this enormity, yet never allude to any laws by which it might be suppressed. For example, in one of Plato’s dialogues (Theaet.), Socrates is made to speak of artificial abortion as a practice, not only common but allowable; and Plato himself authorizes it in his Republic (lib. v.). Aristotle (Polit. lib. vii. c. 17) gives it as his opinion that no child ought to be suffered to come into the world, the mother being above forty or the father above fifty-five years of age. Lysias maintained, in one of his pleadings quoted by Harpocration, that forced abortion could not be considered homicide, because a child in utero was not an animal, and had no separate existence. Among the Romans, Ovid (Amor lib. ii.), Juvenal (Sat. vi. 594) and Seneca (Consol. ad Hel. 16) mention the frequency of the offence, but maintain silence as to any laws for punishing it. On the other hand, it is argued that the authority of Galen and Cicero (pro Cluentio) place it beyond a doubt that, so far from being allowed to pass with impunity, the offence in question was sometimes punished by death; that the authority of Lysias is of doubtful authenticity; and that the speculative reasonings of Plato and Aristotle, in matters of legislation, ought not to be confounded with the actual state of the laws. Moreover, Stobaeus (Serm. 73) has preserved a passage from Musonius, in which that philosopher expressly states that the ancient law-givers inflicted punishments on females who caused themselves to abort. After the spread of Christianity among the Romans, however, foeticide became equally criminal with the murder of an adult, and the barbarian hordes which afterwards overran the empire also treated the offence as a crime punishable with death. This severe penalty remained in force in all the countries of Europe until the Middle Ages. With the gradual disuse of the old barbarous punishments so universal in medieval times came also a reversal of opinion as to the magnitude of the crime involved in killing a child not yet born. But the exact period of transition is not clearly marked.

In England the Anglo-Saxons seem to have regarded abortion only as an ecclesiastical offence. Sir Matthew Hale (1609–1676) tells us that if anything is done to “a woman quick or great with child, to make an abortion, or whereby the child within her is killed, it is not murder or manslaughter by the law of England, because it is not yet in rerum natura.” But the common law appears, nevertheless, to have treated as a misdemeanour any attempt to effect the destruction of such an infant, though unsuccessful. Blackstone (1723–1780), to be sure, a hundred years later, says that, “if a woman is quick with child, and by poison or otherwise killeth it in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was, by the ancient law, homicide or manslaughter.” Whatever may have been the exact view taken by the common law, the offence was made statutory by an act of 1803, making the attempt to cause the miscarriage of a woman, not being, or not being proved, to be quick with child, a felony, punishable with fine, imprisonment, whipping or transportation for any term not exceeding fourteen years. Should the woman have proved to have quickened, the attempt was punishable with death. The provisions of this statute were re-enacted in 1828. The English law on the subject is now governed by the Offences against the Person Act 1861, which makes the attempting to cause miscarriage by administering poison or other noxious thing, or unlawfully using any instrument equally a felony, whether the woman be, or be not, with child. No distinction is now made as to whether the foetus is or is not alive, legislation appearing to make the offence statutory with the object of prohibiting any risk to the life of the mother. If a woman administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means to procure her own miscarriage, she is guilty of felony. The punishment for the offence is penal servitude for life or not less than three years, or imprisonment for not more than two years. If a child is born alive, but in consequence of its premature birth, or of the means employed, afterwards dies, the offence is murder; the general law as to accessories applies to the offence.

In all the countries of Europe the causing of abortion is now punishable with more or less lengthy terms of imprisonment. Indeed, the tendency in continental Europe is to regard the abortion as a crime against the unborn child, and several codes (notably that of the German Empire) expressly recognize the life of the foetus, while others make the penalty more severe if abortion has been caused in the later stages of pregnancy, or if the woman is married. According to the weight of authority in the United States abortion was not regarded as a punishable offence at common law, if the abortion was produced with the consent of the mother prior to the time when she became quick with child; but the Supreme Courts of Pennsylvania and North Carolina held it a crime at common law, which might be committed as soon as gestation had begun (Mills v. Com. 13 Pa. St. 630; State v. Slagle, 83 N.C. 630). The attempt is a punishable offence in several states, but not in Ohio. Nor was it ever murder at common law to take the life of the child at any period of gestation, even in the very act of delivery (Mitchell v. Com. 78 Ky. 204). If the death of the woman results it is murder at common law (Com. v. Parker, 9 Met. [Mass.] 263). It is now a statutory offence in all states of the Union, but the woman must be actually pregnant. In most states not only is the person who causes the abortion punishable, but also any one who supplies any drug or instrument for the purpose. The woman, however, is not an accomplice (except by statute as in Ohio, State v. M‘Coy, 39 N.E. 316), nor is she guilty of any crime unless by statute as in New York (Penal Code, § 295) and California (Penal Code, § 275) and Connecticut (Gen. Stats. 1902, § 1156). She may be a witness, and her testimony does not need corroboration. The attempt is also a crime in New York (1905, People v. Conrad, 102 App. D. 566).

Authorities.—Ploucquet, Commentarius Medicus in processus criminales super homicidio et infanticidio, &c. (1736); Burke Ryan, Infanticide, its Law, Prevalence, Prevention and History (1862); G. Greaves, Observations on the Laws referring to Child-Murder and Criminal Abortion (1864); Storer and Heard, Criminal Abortion, its Nature, Evidence and Law (Boston, 1868); J. Cave Browne, Infanticide, its Origin, Progress and Suppression (1857); T. R. Beck, Medical Jurisprudence (1842); A. S. Taylor, Principles and Practice of Medical Jurisprudence (1894); Sir J. Stephen, History of the Criminal Law of England (1883); Sir W. O. Russell, Crimes and Misdemeanours (3 vols., 1896); Archbold’s Pleading and Evidence in Criminal Cases (1900); Roscoe’s Evidence in Criminal Cases (1898); Treub, van Oppenraag and Vlaming, The Right to Life of the Unborn Child (New York, 1903); L. Hochheimer, Crimes and Criminal Procedure (New York, 1897); A. A. Tardieu, Étude medico-légal sur l’avortement (Paris, 1904); F. Berolzheimer, System der Rechts- und Wissenschaftsphilosophie (Munich, 1904).