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A 19th Century Abortion Case

On about the first of January of 1897, W. C. Moore gave Mollie Smith a supply of abortifacient drugs: a bottle of compound of cotton root and oil of rue, prescribing the doses to be taken by her. Following Moore's instructions, Mollie took one teaspoonful of the mixture three times a day from the 1st of January until the 15th of January, 1897. Then, beginning on the 15th day of January, she took 30 drops of ergot three times a day for three days, as provided by Moore. She took then, for one day, three teaspoonfuls of the first compound three times a day. She took no more medicine after this.

On the 21st of January, Moore performed the abortion on Mollie, as described by the court: "he inserted into her private parts a metallic substance, which he used as an opener, and, in connection with this, he inserted a pen staff, about seven inches long, and rounded at the end, into her private parts. She stated that this operation gave her pain, and that for a short time she felt sick and faint, but it soon passed off. The pen staff, when it was withdrawn, was wet." During the trial, there was some confusion over whether Moore used "an instrument" to cause Mollie's abortion, or whether the "instrument" was merely used as a speculum so that Moore could use a pen staff to cause the abortion. The court ruled, on appeal, that this was a moot point: Moore had used something to trigger the abortion, and that was all that needed to be proved in order to convict him.

Mollie walked home after Moore used the instruments on her. She was questioned by her father, and she told about the abortion. According to court documents, "He became angered, jerked her by the shoulders, and shook her, and struck her three times on the side of the head. She was greatly troubled at this time, and mentally depressed and despondent. On January 23d, she rode in a wagon from her father's house to a point about six miles distant, and returned, the road being through a timbered and rough rocky country. On February 6th she rode in a buggy with springs a distance of twenty-four miles, from her father's house to her brother's house, in Montague county. This road was over quite a hilly country, and three or four miles of the same was quite rough and rocky. She also drew some water out of a deep well while she was staying at her brother's place (how many buckets is not stated), and did some washing there." These exertions were evidently attempts by Mollie to hasten the abortion.

According to court records, "About the 15th of February she had a flow of blood, which lasted until the 19th of February, when she suffered considerable pain. These pains were between midnight and day. On the next day she states that she found something in her clothes. She got up from the bed, and walked outdoors, while the rest of the family were at dinner, and went to the northeast yard fence, and there something dropped from her clothing, which she left there, and returned to the house. Her sister-in-law went to the fence shortly afterwards, and discovered the fetus, took it, and carried it into the house, where it was subsequently examined by herself and husband, and by a Mrs. Craig." The witnessed indicated that the fetus was about two and a half inches long, and well developed with fingers and toes and eyes.

Moore was convicted and sentenced to five years. He tried various means to wheedle his way out of the conviction.

One strategy was to challenge the wording of the indictment, which charged him with three counts: administering a drug to produce abortion, using an instrument to produce abortion, and using a pen staff to produce abortion.

He claimed that he could not be a principal in the case, but merely an accomplice, because he had provided the woman, Mollie Smith, with drugs that she voluntarily took. However, the court noted that, "A woman cannot be a principal in the offense of abortion committed against herself." The court also noted that there can not be an accomplice without a principal, and that therefore, of the two parties involved in the abortion -- Moore and Mollie Smith, Mollie was the victim and Moore the perpetrator of the crime.

The court also ruled that Mollie's consent to the abortion did not negate the charges against Moore. (The only consideration legally given to whether the woman consented to the abortion was in the punishment; sentence would be doubled for an abortionist who had performed the abortion without the woman's consent.)

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