Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 16.: Abortion.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 16.: Abortion.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 16.

Abortion.—

In the act of abortion, there is a twofold violation of rights. In the first place, it involves a violation of personal security to the limbs and body of the woman. The fœtus is part of the body of the woman and an unnatural expulsion of it inflicts injury upon the mother. But since the maxim of the law is, volenti non fit injuria, there is at common law no crime of assault and battery against the woman, where she procures or assents to the abortion. But abortion involves also the destruction of the life-germ of the fœtus, which is considered, even by the common law, to be a living human being for certain purposes. Mr. Blackstone says: “Even an infant in ventre sa mère, or in the mother’s womb, is, for many purposes, which will be specified in the course of these commentaries, treated in law as if actually born.”1 But the fœtus was not supposed to have such an actual separate existence as to make abortion a crime against the unborn child, until it had reached that stage of its growth when it is said to “quicken.” Consequently at common law, where an abortion is committed upon a woman, with her consent, before the child had quickened, it is no crime unless the death of the mother ensues.2 The crime of abortion is now regulated by statute in the different States, and is generally made a crime, under all circumstances, to procure the miscarriage of a pregnant woman, whether she consents to the act, or the child has not quickened, and even where she herself, unaided, attempts the abortion.

[1]1 Bl. Com. 154.

[2]Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 22 N. J. L. 52; see Abrams v. Foshee, 3 Iowa, 274; Hatfield v. Gano, 15 Iowa, 177; People v. Jackson, 3 Hill, 92; Wilson v. Iowa, 2 Ohio St. 319; Robbins v. State, 8 Ohio St. 131; State v. Smith, 32 Me. 369; Commonwealth v. Wood, 11 Gray, 85; Mills v. Commonwealth, 13 Pa. St. 631; State v. Morrow, 40 S. C. 221; Com. v. Thompson, 159 Mass. 56; Cave v. State, 33 Tex. Cr. Rep. 335; People v. McGonegal, 136 N. Y. 62. One who abets or assists in procuring an abortion is guilty of a crime. People v. Vanzile, 73 Hun, 534. So, also, is the unsuccessful attempt to commit an abortion a punishable crime. Com. v. Tibbetts, 157 Mass. 519. And see People v. McGonegal, supra, as to the effect of evidence, that the time was not sufficient for the successful commission of the crime of abortion.