Duhaime's Law Dictionary


Abortion Definition:

The expulsion of a fetus from the uterus before it is viable.

Related Terms: Life

In a 1948 case, Coffman, Justice Buchanan of the Supreme Court of Virginia used these words to define an abortion:

"Abortion is defined as the expulsion of the fetus at so early a period of uterogestation that it has not acquired the power of sustaining an independent life.

"Although there may be a technical distinction recognized in medicine between abortion and miscarriage, the words are usually synonymous in law."

In criminal law, abortion was defined as follows by Justice Dempsey of the Illinois Appellate Court in People v Hoffman, deferring to the statutory definition as it then appeared in the Illinois Revised Statutes, 1965, Chapter 38, §23-1:

"A person commits an abortion when he uses an instrument, medicine, drug or other substance with the intent to procure a miscarriage of any woman."

In Borowski v Canada, Justice Matheson of the Saskatchewan Court of Queen's Bench noted this history of the crime in English law:

"At common law abortion was an offence — a misdemeanour — only after quickening, which was that stage of pregnancy occurring approximately 14 weeks after conception when the woman first perceived movement of the foetus.

Lord Ellenborough's Act, 1803 (43 Geo. 3), c. 58, declared abortion of a quick foetus to be a capital crime, but prescribed lesser penalties for the felony of abortion before quickening. The distinction disappeared with the abolition of most capital crimes in 1837 ....

The Infant Life (Preservation) Act, 1929 (19 & 20 Geo. 5), c. 34, prohibited the destruction of a child capable of being born alive, but accepted the destruction of such a child in good faith for the purpose only of preserving the life of the mother."

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