Miscarriage of justice

“ If by reason of any of the acts described in Section 1 hereof, the miscarriage of such woman is procured, and she does miscarry, causing the death of the unborn child, whether before or after quickening time, the person so offending shall be guilty of a felony, and confined in the penitentiary for not less than two, nor more than twenty-one years. ”

“ The crime of abortion should be considered to include, as it does in the absolute fact of moral guilt, all cases of attempted or intentionally effected destruction and miscarriage of the product of impregnation ”

“ 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. ”

“ Every person who shall administer any substance with the intention to procure the miscarriage of a woman then being with child, or shall use or employ any instrument or other means with such intent, unless the same shall have been done with a view to preserve the life of such mother, shall be punished by imprisonment in the penitentiary not less than one nor more than three years. ”

“ Statutes Generally Except Abortions Necessary to Save Life.—It should be noted here, however, that nearly all the statutes which define and punish the crime of abortion, or the crime of manslaughter or murder committed in consequence of abortion, declare that when it is necessary to produce a miscarriage in order to save life, the act of doing so is excepted from the effect of the statute. ”

“ If the person charged knew that the woman was with child, and the probable effect of the agent administered, this is good presumptive evidence that the intent was to produce the miscarriage, and where the effect of abortion is actually thus produced, it will materially aid the presumption of such intent. ”

“ It is sometimes effected in hatred of the husband or in jealousy, sometimes for concealment of shame; excuses of little more value than those of extravagance or fashion. Constitutional predisposition can hardly be asserted, unless the miscarriage have been preceded by others; very many ineffectual attempts are on record, although the existence of such predisposition was evident. It will often be alleged that the measures instituted were to prevent instead of to effect the miscarriage, and that this has resulted in consequence merely of an excess of good-will ”

“ The fœtus is then called a child—the law ordaining that, if a woman intentionally procure, or such parties as may assist in so doing, abortion or miscarriage before quickening, it is misdemeanor, if after, murder. ”

“ 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. ”

“ When we pursue our end by lawful means, we may always console our miscarriage by the hope of future recompense. When we consult only our own policy, and attempt to find a nearer way to good, by overleaping the settled boundaries of right and wrong, we cannot be happy even by success, because we cannot escape the consciousness of our fault; but, if we miscarry, the disappointment is irremediably imbittered. How comfortless is the sorrow of him, who feels, at once, the pangs of guilt, and the vexation of calamity, which guilt has brought upon him? ”

“ Of course flagrant miscarriages of justice frequently occur, which, by reason of their widespread publicity in the press, would seem to justify the almost universal opinion that women are immune from the penalities for homicide. It is also true that such miscarriages of justice are more likely when the defendant is a woman than if he be a man. ”

“ From this it follows that the young woman whose virtue has proved an insufficient guardian to her honor, when she seeks by abortion to save in the eyes of man that honor she has forfeited, incurs the additional and deeper guilt of murder in the eyes of God, the judge of the living and the dead. ”

“ And if she can conceal the evidence of her guilt, she may hope by honest endeavor to retrieve her good name, and thus is tempted to produce an abortion.
Two wrongs can not make one right. Before God and her own conscience, the only tribunals that in justice have any right to accuse her, she can not by any act gain absolution. ”

“ ABORTION, or miscarriage, is, in modern times, justly considered as a misfortune; though the detestable and unnatural vice of procuring it by art, was connived at by the ancient Romans; whose disgraceful fall, as a nation, may in a great measure be attributed to their luxurious manners, and immoral habits. ”

“ By the Common Law and by many of our State Codes, fœtal life, per se, is almost wholly ignored and its destruction unpunished; abortion in every case being considered an offence mainly against the mother, and as such, unless fatal to her, a mere misdemeanor, or wholly disregarded.
By the Moral Law, the wilful killing of a human being at any stage of its existence is Murder. ”

“ If the habit of aborting at a certain period has existed, which of course cannot be alleged in a first pregnancy, if the patient has had sudden fright or grief, or is known to have been accidentally injured, the chances are to be considered in her favor, in the absence of proof to the contrary. The converse of this statement, however, must not be considered as always and necessarily true. Women have time and again suffered shipwreck, undergone torture, been thrown from a height, and otherwise severely injured, and yet have escaped miscarriage ”

“ Hence we find, that, in certain families where temperance and prudence are strictly observed, a miscarriage is a rare event.
There are, however, cases in which mothers are constitutionally liable to abortion, and where the combined efforts of art and nature cannot prevent a misfortune, which not only in a remarkable degree debilitates the constitution, but has also a tendency to return on a future occasion. The most critical periods at which abortion may occur, are those of the third, fourth, and fifth months of pregnancy ”

“ As a rule, a miscarriage is thought to be the result of union with the inhabitants of the spirit realm, though an expectant woman is often warned not to become angry or sorrowful lest her “blood become strong and the child be born.” Abortion is said to be practised occasionally by unmarried women ”

“ He that kicks a woman with child, so that the woman miscarry, 28 let him pay a fine in money, as the judges shall determine, as having diminished the multitude by the destruction of what was in her womb; and let money also be given the woman's husband by him that kicked her; but if she die of the stroke, let him also be put to death, the law judging it equitable that life should go for life. ”

“ When, in an attempt to procure an abortion, there is an evident intent to produce the death of the mother, and her death does actually occur, such attempt becomes murder at common law; [228] but when nothing more is intended than to commit the misdemeanor, it is only manslaughter, [229] being an instance of homicide from individual malice toward a third party, when the fatal blow falls on the deceased by mistake. ”

“ Would mankind, in following such advice, merely resort to greater abstinence before their means allow the expense of children, and to greater prudence after that period, no fault could be found; but when we discover criminal abortion thus justified and almost legitimated, we may well oppose to such doctrine the words of the indeed admirable Percival, “To extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man.” ”

“ These extracts, taken together, seem to me to throw a most interesting light upon the subject of trial by jury—the object of a sneer in one of the above quotations. When it is possible for a number of educated minds, engaged in highly intellectual pursuits, to take such opposite views of the same set of facts, it may surely be urged that, if miscarriages of justice occasionally take place, they are due, not so much to any defects in our judicial system, as to those native diversities of the human mind which no legislation can remove. ”

“ If our previous assumptions of the actual character of criminal abortion be granted, and we believe that they have been proved to a demonstration, it must follow from the subsequent remarks that the common law, both in theory and in practice, is insufficient to control the crime; that in many States of this Union, the statutory laws do not recognize its true nature; that they draw unwarrantable distinctions of guilt ”

“ There were of course other briefs he held, for payment or for love of justice; young women who had killed their babies (as to these he was far from sentimental; he only defended where the woman had any claim to sympathy or mitigation of the unreal death sentence) ; breach of promise actions where the woman had been grossly wronged; affiliation cases in high life—or the nearest to high life that makes a claim on the man for his fatherhood. ”