Who are the Criminals?

The Legal Status of Abortion

Book excerpt

By: Edwin M. Hale

Date: 1867

Source: Edwin M. Hale. The Great Crime of the Nineteenth Century. Chicago: C. S. Halsey, 1867.

About the Author: Dr. Edwin M. Hale (1829–1899), a homeopathic physician, was born in Newport, New Hampshire. After qualifying, he worked in Jonesville, Michigan, before becoming professor of materia medica and therapeutics at Hahnemann Medical College in Chicago. His writings on women's health, reproduction, and marriage became popular in the second half of the nineteenth century. He wrote several books, including the anti-abortion treatise The Great Crime of the Nineteenth Century, which is excerpted below.

INTRODUCTION

Abortion, both legal and illegal, has long been controversial, balancing as it does the rights of the mother against those of her unborn child. Unwanted pregnancy has always been part of women's lives, even after the advent of reliable contraception in the 1960s in the form of the contraceptive pill. Therefore, abortion will always be an issue, where various interest groups seek to make changes to the legal framework surrounding it.

The legal status of abortion in the United States has changed dramatically over time. From the founding of the nation to the mid-nineteenth century, abortion was permitted until about the fourth month of pregnancy. That is, abortion was allowed until the fetus made perceptible movements, known as "quickening." Both the professional and popular medical lit-erature of the day contained frequent references to methods of abortion. The fetus was regarded, during this period, as part of the woman's body, with no independent life of its own. Therefore, destroying it was not murder, or even manslaughter.

Views on abortion began to change in the nineteenth century. The unborn child began to be perceived as having rights of its own, which had to be set against those of the mother. In the mid-nineteenth century, Massachusetts became the first state to make abortion at any stage of pregnancy a criminal offense. By the turn of the twentieth century, nearly all other states had adopted similar laws. Many in the medical profession had declared themselves against abortion and their views were no doubt influential in changing the law. Dr. Hale's views, outlined in the excerpt below, are clear and typical of the "hard line" prevalent at the time.

PRIMARY SOURCE

SECTION II.

WHO ARE THE CRIMINALS?

We deem it our duty, as a medical man and a citizen, to point out fearlessly and perspicuously those who are in any way connected, criminally, with this great evil.

Generally they consist of four classes, viz:

    The PRINCIPALS.
    Accessories BEFORE the fact.
    Accessories TO the fact.
    Accessories AFTER the fact.

THE PRINCIPALS.

There are generally but two persons in a case of criminal abortion, who are to be considered as principals. In rare cases there may be more. Usually they stand, relatively, as follows:

The Mother. That the mother, who carries in her womb her unborn child, should be the chief criminal, is a startling proposition. Many persons will be inclined to disbelieve that such is the case. Those, however, who have investigated the subject, or who have had opportunities for observation, will not dispute the assertion.

When it is known that the cases are very rare in which the crime is committed without the consent of the mother; when it is known that the cases are few in which the child is destroyed without her urgent desire; the proposition will not appear so improbable as at first sight.

Examine all the inducements to the crime, mentioned heretofore, and it will be found that the cases are few in which the mother herself does not originate the plea, or act willingly from influences brought to bear on her from other sources.

In either case, she must be considered as one of the principals in the crime.

Even in cases where the husband or other person persuades the mother to its commission, or to allow another person to destroy the foetus, she is still a principal; for in no case need she succumb to influences not extending to actual physical force. The woman is individually responsible for all her acts of immorality.

In the married state, the wife has the moral and legal right to become a mother as often as possible. No law, human or Divine, can compel her to destroy, or permit the destroying of the fruits of conception.

Why then, in this view of the matter, should not the woman be considered the chief criminal, in nearly all cases, except when the abortion was induced on her person, by violence and against her will?

The law in this respect, has not been strict enough to meet the demands of justice. It has recognized, in most instances, only the person who destroys the child by drugs, instruments, or some physical force.

In a few instances, it has named the mother, who, by either of the above means, has destroyed the child in her own womb.

In but one instance, (the law of California,) does the law make a principal of the woman on whom the abortion is induced. This should be done in nearly all instances. If the woman is innocent, and the crime was committed against her will, and she was powerless to prevent it, there are many ways in which her innocence could be made to appear.

Physicians are often informed against by one of the guilty parents, causing thereby, a malicious prosecution. Such a law would prevent such persecution.

In fact, she is often more guilty than the person inducing the abortion, for she may, by various improper means, as bribes, threats, and other inducements, influence the physician or other person to commit the crime, when his better judgment and principle would revolt against it.

I do not hesitate to assert that if the woman be made a principal in most cases of abortion, it would diminish the crime two-thirds, and perhaps to a greater extent, especially in large towns and cities.

2. The Abortionist. Among the most prominent are a class of creatures, of both sexes, known to the law as Abortionists. These people have their corresponding analogies in the Thugs of India, and murderers everywhere, and make it their chief business to destroy, for money, or worse inducements, the innocent and unborn child.

Not only does their loathsome presence poison the moral atmosphere of great cities, but they infest the smaller towns. They even leave their slimy track in the quiet country, and pollute the green fields, the flowery prairies, and the pure forests, where the homes of good men and women should be found.

In the great cities, however, these vampyres most abound. Certain streets and localities, not always low and abandoned in their moral surroundings, are selected by these creatures as their habitat. Sometimes their presence is known only by the bad location they occupy, for the simple "Doctor ――――――," on the sign would indicate no nefarious calling. At other times, the word "Accoucher," is prostituted from its legitimate significance, and means to the abandoned, and sinful, only an "Abortionist." More frequently, they sail under the name of "Astrologist;" the possessor of an "Anatomical Museum;" one who treats "secret diseases," or attends to "private matters."

Female Abortionists, assume the name of "Midwives," "Nurses," "Fortune-tellers," "Madam ――――――," "Female Physician," et cetera, and under these apparently harmless avocations, ply their murderous trade.

In the country, the business is managed differently. Hundreds of persons of both sexes, are constantly perambulating the country, stopping in the smaller towns villages, who have for their chief means of subsistence, no other means of support than the induction of criminal abortion.

Ostensibly they are "Professors," "Doctors," "Lecturers," etc., advertising to cure all the ills which flesh is heir to; perform wonderful surgical operations; lecture on anatomy, physiology, health, hygiene, phrenology, and various other topics of which they are perfectly ignorant.

In their advertisements, their harrangues to the public, their conversations with private visitors, or in their lectures, they are sure to let drop some hint, by which the unprincipled may imply of what their secret business consists.

Follow these miscreants to their private consultation rooms, and you shall see where the most disgraceful scenes are enacted, and where hands and souls are stained by the blood of unborn babes.

Sometimes the vocation of "nurse," which should be a noble and holy calling, is prostituted to the sole purpose of criminal abortion. Such instances have come to the knowledge of medical men, as occurring in this, and other cities. In the instances alluded to, the monthly nurse has intimated to the lying woman, that there is no need of passing through the perils and pains of childbirth again; that in the early months of pregnancy the menses can be safely brought back; that they will instruct them how to accomplish it. By this means the minds of how many woman hitherto pure, may have been poisoned by such false and sinful temptations?

Among those who figure in the list of chief criminals, are the unnatural father, be he husband, seducer, or unlawful companion. Instances are on record, where the father has administered the potion, used an instrument, or resorted to physical force to destroy his unborn offspring.

We have even heard from undoubted evidence, that there have been instances where the mother of the pregnant woman—both belonging to those circles of society considered as "respectable,"—has, with her own hands, given the drug to cause abortion, and most revolting of all, used upon the person of her daughter, an instrument which caused the death of the foetus.

In the name of humanity, religion, and civilization, is it not time that some serious and determined effort was made by men of the medical, legal, and religious professions, to extirpate these murderers?

Shall we allow the end of the Nineteenth Century to close upon a scene which will make the devils laugh, and the angels weep?

Can no law be framed, having for its object the prevention and punishment of the crime of abortion; a law so broad in its scope, so perfect in its details, that the principals above named, cannot escape detection, trial, and condign punishment?

It is a hopeful sign to see that the clergy are becoming aroused to a sense of their duty in this respect, and I cordially endorse the remarks of the author of a recent article on this subject, who says:

"Quack doctors, irregular practitioners, and the whole race of vagrant female hyenas who will take foetal life for fifty dollars, and gratuitously kill or ruin the credulous wife or "unfortunate," should be treated as pests to be "purified by fire," if necessary. The odor of such a burnt offering would be more grateful than their offences which smell to Heaven."

To recapitulate; The mother may be said to be the chief criminal (a) when the desire for, and the accomplishment of the crime originates within herself, i. e. when she destroys of her own will, by means of drugs or violence, the unborn child, or procures its destruction by others. She may be said to be a chief criminal when she is influenced by others, to the commission of the crime, and allows them to cause by any means the destruction of the child in utero.

Besides the mother, the person who administers, or causes to be administered, any drug, to a pregnant woman, or uses any instrument for the purpose of the destruction of the child, without the consent of the mother, becomes the chief criminal; but if the person giving the drug, or using the instrument, is employed or influenced in any way, by the mother or others, to the commission of the crime, he or she, becomes a chief criminal.

SIGNIFICANCE

Illegal abortion has always been risky. In 1930, an estimated 2,700 women in the United States died following an illegal abortion; by 1950, this figure had decreased to 300, no doubt following the introduction of antibiotics to treat dangerous infections caused by terminations carried out in non-sterile conditions. In the 1960s, opinion on abortion began to change. Only Pennsylvania continued to prohibit all abortions. In some states, however, abortion was allowed only if the mother's life would be endangered by continuing with the pregnancy. In others, an abortion could be obtained if the mother's mental or physical health would be endangered by the pregnancy—a requirement that could be liberally interpreted.

The situation in the 1960s was not one of "abortion on demand" and in practice, abortion was out of the question for many women without financial means. In 1967, Britain liberalized its abortion laws so that any woman was permitted an abortion with the written consent of two physicians. Many women traveled to the U.K. to take advantage of the change in the law—600 American women in the first three months of 1969 alone. Then, in 1970, abortion on request was introduced in four American states—Alaska, Hawaii, New York, and Washington.

The year 1973 was a milestone year in the history of U.S. abortion law. In the famous case of Roe v. Wade, the U.S. Supreme Court ruled that the Fourteenth Amendment of the Constitution provided a fundamental right for women to obtain abortions. The case had been brought by "Jane Roe" an unmarried woman wanting to overturn the Texas anti-abortion law. Also included were a married couple "John and Mary Doe" whose doctors had advised against pregnancy. In short, the Court said that although the state has an interest in protecting the life of the unborn fetus, the interest did not become compelling until fetal viability occurred during the third trimester of a pregnancy. That judgement invalidated all state abortion laws at a stroke.

Abortion-related deaths of women have fallen to an all time low since the Roe v. Wade judgment and late abortions—which carry the most risk—are far less common. However, many are still opposed to abortion on demand. Some religious groups, for example, argue that life begins at conception. Recent research showing that the fetus may feel pain earlier in its development than previously believed has created pressure to lower the time limit on legal abortion. At the same time, the vital role of sex education and contraception in reducing the demand for abortion should not be overlooked.

FURTHER RESOURCES

Web sites

Alan Guttmacher Institute. "Lessons From Before Roe: Will Past Be Prologue?" 〈http://www.agi-usa.org/pubs/ib_5-03.html〉 (accessed January 8, 2006).

AOL Abortion Law Homepage. "Overview." 〈http://members.aol.com/abtrbng/overview.htm〉 (accessed January 8, 2006).