ABORTION. The expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life.
The unlawful destruction, or the bringing forth prematurely, of the human foetus be fore the natural time of birth; State v. Maa nell, 3 Pennewill (Del.) 307, 51 Atl. 606: Its natural and innecent causes are to be sought either in the mother—as in a nervous, irritable tem perament, disease, malformation of the pelvis, im moderate veneral indulgence, a habit of miscar riage, plethora, great debility; or in the foetus its dependencies; and this is usually disease existing in the ovum, in the membranes, the placenta, or the fo3tue The criminal means of producing abortion are of two kinds. General, or those which seek to pro duce the expulsion through the constitution of the mother, which are venesection, emetics, cathartics, diuretics, emmenagoguee, comprieing mercury, eav in, and the secale cornutum (spurred rye, ergot), to which much importance has been attached ; or local or mechanical means, which consist either of external violence applied to the abdomen or loins, of of instruments introduced into the uterus for the purpose of rupturing the membranes and thus bringing on premature action of the womb. The latter is the more generally resorted to, as being the most effectual. These local or mechanical means not unfrequently produce the death of the mother, as well as that of the foetus.
At common law, an attempt to destroy a child en ventre sa mere appears to have been held in England to be a misdemeanor ; Rose. Cr. Ev. 4th Land. ed. 260; 1 Russ, Cr. 3d Land. ed. 671; 3 Co. Inst. 50; 1 Hawk. c. 13, s. 16; 1 Whart. Crim. L. § 392 ; though Green, C. J., in State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248, declares that he can find "no precedent, no authority, not even a dictum (prior to Lord Ellenborough's act, 43 Geo. III. c. 58) which recognizes the mere procuring of an abortion as a crime known to the law." It was said to be a misde meanor only if the child were born dead, but if it were , born alive and afterwards died, from injury received in the womb, it would be homicide; 1 Mood. C. C. 346; 3 Inst. 50; and this was true even if the child were still, at the time of death, attached to the mother by the umbilical cord; 1 C. & M. 650; 2 Mood. C. C. 260; see infra. In this coun try, it has been held that it is not an indict able offence at common law to administer a drug, or perform an operation upon a pregnant woman with her consent, with the intention and for the purpose of causing an abortion and premature birth of the foetus of which she is pregnant, by means of which an abortion is in fact caused, unless, at the time of the administration of such drug or the performance of such• operation, such wo man was quick with child; Com. v. Wood, 11
Gray (Mass.) 85; Hatfield v. Gano, 15 Ia. 177; Evans v. People, 49 N. Y. 86; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; Sullivan v. State, 121 Ga. 183, 48 S. E. 949; Barrow v. State, 121 Ga. 187, 48 S. E. 950; Mitchell v. Coro., 78 Ky. 204, 39 Am. Rep. 227. In Idaho the common law rule is as stated, but by statute the crime may be com mitted before quickening; State v. Alcorn, 7 Ida. 599, 64 Pac. 1014, 97 Am. St. Rep. 252. But in Pennsylvania a contrary doctrine has been held; Mills v. .Com., 13 Pa. 631; Com. v. Demain, 6 Pa. L. J. 29. Wharton sup ports the latter doctrine on principle; 1 Cr. L. § 592 See also Com. v. Boynton, 116 Mass. 343 ; Com. v. Brown, 121 Mass. 69 ; Com. v. Corkin, 136 Mass. 429. Under the Massachusetts statute forbidding the procur ing of a miscarriage, it is not necessary to allege that the child was born alive or that the woman was "quick with child"; Com. v. Wood, 11 Gray (Mass.) 85; or whether she did or did not die; Com. v. Thompson, 108 Mass. 461. In other states it is held that the death of the mother is not a constituent element of the offence of abortion ; Worthing ton v. State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506; Railing v. Corn., 110 Pa. 100, 1 Atl. 314. See Quienziv ING. The Iowa cases cited supra were civil suits by husband and wife for slander in charging the latter with having procured an abortion, and it was held that no crime was committed unless the woman was "quick with child." The former English statutes on this sub ject, 43 Geo. III. c. 58, and 9 Geo. IV. c. 51, § 14, distinguished between the case where the woman was quick and was not quick with child; and under both acts the woman must have been pregnant at the time 1 Mood. Cr. Cas. 216; 3 C. & P. 605. The terms of the act of 24 and 25 Wet. c. 100, s. 62, are, "with intent to procure the miscarriage of any woman whether she be with child or not." See 1 Den. Cr. Cas. 18 ; 2 C. & K. 293.