The latest statutes - for example, those of New Jersey, Illinois (1869), Kansas (1868), and New York (1869) - do not require that the woman be quick with child, but only that she be "pregnant" or "with child." The Ohio statute of 1867 is to the same effect, but differs in its phraseology from the statutes of any of the other States. It provides that any person who shall administer or advise to be administered to any woman pregnant with a vitalized embryo or foetus, at any stage of utero-gestation, any medicine or substance, or employ any other means, with intent thereby to destroy such vitalized embryo or foetus, unless necessary or advised by physicians to be necessary to save the life of the mother, shall, in case of the death of such embryo or foetus or mother in consequence thereof, be guilty of a high misdemeanor, and punishable by imprisonment from one to seven years. In Massachusetts, by the present statute, the offender is guilty of felony if the mother die in consequence of the act, and is liable to imprisonment from five to twenty years; and if she does not die, is guilty of a misdemeanor and punishable by fine and imprisonment not more than seven years.
The present statute of New York was enacted in 1869, superseding that of 1846. This earlier act declared that every person who should administer to any woman pregnant with a quick child any drug, or use any instrument or other means, with intent thereby to destroy such child, should in case of the death of such child or of such mother be guilty of manslaughter in the second degree. The act of 1869 omits the word "quick," saying "with child," and with regard to the intent substitutes the words " with intent thereby to produce the miscarriage of any such woman;" and it preserves the provision that in case the death of such child or of such woman be thereby produced, the offender shall be guilty of manslaughter in the second degree. It will be observed that the omission of any criterion of quickening, and the provision respecting the death of the child, make the crime possible from the very earliest stage of gestation. Under the former statutes it was also an essential element of the crime that there should be an intent to destroy the child; now that intent is immaterial, and if there was the mere intent to procure the miscarriage, and the death of the child is produced, the crime is committed.
The statutes here selected represent fairly the present state of the statutory law, and especially the more recent legislation on the topic. - In a late case in Massachusetts the court was inclined to hold that an indictment could not be maintained there if the foetus had lost its vitality at the time of the commission of the act, so that it could never mature into a living child. In a similar case in Vermont it was held not essential that the foetus should be alive when the attempt was made". Where the language is general, as for example, "with intent to procure the miscarriage of any woman," it is immaterial whether the woman was or was not pregnant at the time. The "administering" or "causing to be taken," usually mentioned in the statutes, does not require an actual delivery by the hand of the defendant. Thus it has been held that one administered poison to another by mixing it in her coffee and putting-it in her way. And these words have been held to be answered by proof that one gave the drug to the woman with directions how to use it, and she did use it, though not in the defendant's presence.
In New Jersey, under a statute which provided that if any person maliciously or without lawful justification, with intent to cause the miscarriage of a pregnant woman, should advise or direct her to take any drug, it was held that the actual taking or swallowing of the drug by the woman was no element of the crime; the defendant was guilty within the statute if only he gave the advice with the intent there declared. In this case the court added that the design of the statute was not to prevent the procuring of abortions so much as to guard the health and life of the mother against the consequences of such attempts. The word "malicious" in these statutes does not require proof of cruelty or wantonness or revenge. It is enough that there is no legal justification; and there is no such justification in the consent of the woman, nor though the real motive was to screen one or both of the parties from public exposure and disgrace. The patient in cases of abortion is not technically an accomplice in the offence so as to be disqualified from testifying; but as she is in almost all cases, by virtue of her consent, implicated in the moral wrong, this circumstance would fairly affect her credibility.
Where the statute simply requires, as in Massachusetts, that the act shall have been done "unlawfully," the indictment need not charge that it was malicious and without, lawful justification; and the word unlawfully precludes any possibility of inference that the act was done for the purpose of saving the life of the woman, or under any other circumstance which would afford a legal justification. The present statute of Ohio (1867) makes it a misdemeanor to print or publish advertisements of drugs for the exclusive use of women, or of any means for preventing conception or producing miscarriage, or to keep any such articles for sale or gratuitous distribution. A similar statute was passed in New York in 1869, and in Pennsylvania in 1870.