Abortion (or miscarriage) may occur spontaneously, in which case it is of no interest to the criminal law; or it may be deliberately induced, when it is a serious crime. For legal purposes, abortion means feticide: the intentional destruction of the fetus in the womb, or any untimely delivery brought about with intent to cause the death of the fetus. It is not criminal for a doctor to induce premature birth, when he has no intent to cause the death of the child; and he does not become criminally responsible even if he accidentally causes death.
There is a linguistic point, and a philosophical point. Ordinary language is uncertain people used to speak of a pregnant woman as being "great with child," but on the other hand the woman might say that she has no child yet. She is "in the family way" rather than having a family. It is quite natural to speak of a mature fetus as an "unborn child," but it would be odd to refer to a microscopic fertilised ovum in that way.
The philosophical debate is whether there is a difference in moral status between the fetus and the born child. Only by stages do women come to regard the embryo as a separate entity from themselves. Most people agree that at some point of development a fetus has or should have rights, but not the full rights of a born child. We cannot go into the problem further, and it is enough to say that the word "fetus" is here used to cover product" of conception before birth. A fetus is not a legal person, and cannot (for example) own property; but its existence is recognized by law in some ways.
The early Church accepted, and transmitted to the Middle Ages, the generally held be of antiquity that the soul entered the human fetus at some time after conception; this called the theory of mediate animation, since "animation" was supposed to occur at some medial time in pregnancy. The common law absorbed this theory, and fixed the time animation at the time of quickening, when the fetus moved in the womb, an event that usually occurs about half-way through the pregnancy (the 20th week), though at no fixed point. Abortion before quickening was not a: crime punished at common law (though there records of its being punished by ecclesiastical courts2); even abortion after quickening was murder, because no "reasonable creature" was involved, but it was a common misdemeanour, being the killing of a human being or potential human being presumably already possessed of a soul. Thus the common law distinguished between the moral status the fetus and that of the child, according a lower protection to the former.
Men's thinking on this subject was confused, partly because the term "animation" mi refer either to the entry of life (animus) or to the entry of the soul (anima). No one can prove when-or if-a "soul" enters; but to say that the fetus becomes alive only when it move a palpable error. The Roman Church had never regarded the time of quickening as decisive on the entry of the soul, and during the 19th century most Catholic theologians came support the theory of immediate animation-that is, that the human soul enters at moment of conception. Protestant theology paid virtually no attention to the question, the claims of logic or supposed logic were sufficiently strong to procure a stiffening of common law. By a statute of 1803, attempting to procure a miscarriage even bet quickening became a crime triable before the ordinary courts.
Strangely, the law does not make the abortion itself a crime; the criI consists in an act done with intent to procure (cause) an abortion. It ne rests on the Offences against the Person Act 1861 section 58.
"Every woman, being with child, who, with intent to procure her 0' miscarriage, shall unlawfully administer to herself any poison or ott noxious thing, or shall unlawfully use any instrument or other mea whatsoever with the like intent, and whosoever, with intent to procu the miscarriage of any woman, whether she be or be not with chii shall unlawfully administer to her or cause to be taken by her a poison or other noxious thing, or shall use any instrument or oth means whatsoever with the like intent, ... shall be liable ... to kept in [imprisonment] for life."
It will be seen that the Act covers two cases.
First, where a pregnant woman uses any means with intent to procure her own miscarriage.
Although these words still stand in the statute book, women are not prosecuted j procuring abortion themselves, perhaps because of the difficulty of getting a jury to com a woman for an act committed in extreme distress, and the unlikelihood that if convicted s will receive anything more than a nominal sentence. A further good reason for r prosecuting (whether or not it weighs with the police) is that a woman who has operated on herself, or taken drugs, will frequently have caused herself such injury as to necessitate medical attention; and it would be most undesirable that she should be deterred from seeking this attention through the threat of punishment.
Secondly, where anyone else unlawfully uses means with: such intent, whether the woman is pregnant or not. A woman who goes to an illegal abortionist becomes an accessory, but in practice she is not charged.
Legally, using means with intent is the full offence u~der the section. Presumably the Act was drafted like this in order to save the prosecution from having to prove that an abortion was caused.
Instances of means given in the statute are "poison or other noxious thing" and "any instrument. ' The statute is not confined to these two instances, and it has been held to apply an abortion attempted by manipulation with the hand. Where a drug is administered, the judges insist at it must be noxious in itself to be 'a "noxious thing" within the statute: a harmless dose does not become noxious because the drug in question would be noxious if taken in excess.
