Author: has written 428 posts for this blog.

Return to: Homepage | Blog Index

64 Responses

  1. Forced Miscarriage = Murder? : The Curvature

    [...] [Cross-posted from Feministe] [...]

  2. Darleen
    Darleen November 23, 2007 at 8:32 pm |

    If I fire a gun at someone I want to hurt, miss them, and the bullet hits and kills someone in say, the next street over, where I was totally unaware that person was even there, I’m still guilty of murder. Not murder in the first degree, but a possibly 2nd degree murder. This doesn’t mean that the person missed has the focus “off” of them.

    In this instance, the murderer intended to kill his girlfriend AND the unborn child (he shot them to death after learning of the pregnancy) so I would concur with the court that viability was irrelevant.

  3. zuzu
    zuzu November 23, 2007 at 8:42 pm | *

    What Darleen misses is that, usually, a fetus is not a person. The woman, however, is. Shouldn’t assault on her be sufficient, even with enhancement based on intent to cause miscarriage? I’m fine with some kind of enhancement — kind of like with a hate crime — to deal with the unique circumstance of attacking the woman in order to cause her to miscarry (theory being that it was her pregnant status, rather than any other factor, that caused the perp to assault her in the first place).

  4. roses
    roses November 23, 2007 at 9:25 pm |

    So it’s not that the shooter is missing his/her original target. She was hit.

    No kidding. And I think by comparing a woman who was shot or beaten to a person who was missed by a bullet, Darleen pretty much proves the point that these kinds of laws take the focus off the living, breathing woman who was attacked.

  5. Hector B.
    Hector B. November 23, 2007 at 9:48 pm |

    The current law reflects the current ambivalent status of the fetus which the pregnant woman alone can define. I may be completely off-base here, but this is how it seems to me: If the woman wants to carry her pregnancy to term, she thinks of it as a future child. If the woman does not want to carry her pregnancy to term, she thinks of it as an unwanted mass of tissue, like a brain tumor. Obviously no one redecorates a spare room or buys onesies for a brain tumor. Intuitively, therefore, killing a future and anticipated child should result in a higher penalty than, say, cutting off the blood supply to an unwanted mass of tissue.

    Further, women unfortunately miscarry all the time, so an assault with intent to commit miscarriage doesn’t sound like it would result in much of a sentence enhancement.

  6. zuzu
    zuzu November 23, 2007 at 10:04 pm | *

    And I actually think that Darleen misses the point that not only is a fetus not a person, a fetus is inside a woman. So in order to accidentally shoot a fetus, you’re going to have to shoot a woman. So it’s not that the shooter is missing his/her original target. She was hit.

    Oh, details, details. This *is* Darleen we’re talking about.

    Further, women unfortunately miscarry all the time, so an assault with intent to commit miscarriage doesn’t sound like it would result in much of a sentence enhancement.

    It’s the intent that’s important, Hector. People also fall down stairs all the time, too, but if someone pushes you, that’s kind of a problem.

  7. Dr. Confused
    Dr. Confused November 23, 2007 at 11:17 pm |

    I am so far along in my pregnancy that, were this fetus to be forcibly removed from me right now, it would probably not even require a NICU.

    I thought that a wanted pregnancy might change my views on the status of a fetus. It hasn’t really. I mean, if someone were to attack me right now, and kill my fetus, it would be very upsetting to me. It would, however, still be an attack on me. And I would want the person to be treated appropriately for assaulting me. I agree with Cara and zuzu that some sort of additional sentence would be appropriate, but that murder is not the appropriate crime.

  8. GumbyAnne
    GumbyAnne November 24, 2007 at 1:55 am |

    I remember a thought experiment from a philosophy class that I took a couple of years ago:

    Say you wake up in the hospital after an operation to find that you are hooked up to another pationt in such a way that it is your body that is keeping her alive and that if you unhook yourself from it, she will certainly die. Almost everyone agrees that staying there and keeping her alive would be the a really nice thing to do, but that if you choose to disconnect yourself from her, it is NOT the same as murder. A person is not required to give extraordinary bodily help to sustain the life of another.

    Now imagine that you do decide to stay there and keep her alive, but someone walks in off the street and kills her. He could just as easily have kept on walking. That would be murder. If he kills you and, by extension, the other patient, it would be two murders.

    When a woman has an abortion she says “I decline to use my body to sustain the life of this fetus.” If someone else were to kill the fetus without her permission, they would be doing damage that they could just as easily not have done. It is a crime that abortion is not, regardles of whether we recognize a fetus as a person.

  9. Lirpa
    Lirpa November 24, 2007 at 2:25 am |

    I am uncomfortable with the term “murder” only because that would be considering a fetus a human life in the same way that I am a human life, that any of you are — and to consider that murder would be ammunition for anti-choicers to say that women who have abortions are murderers. Which I cannot agree with, no matter how much I try, if only to attempt to understand their side. It just does not make sense to me.

  10. Darleen
    Darleen November 24, 2007 at 2:49 am |

    No, I didn’t miss the point, infact even zuzu gets it wrong.

    First off Cara states

    this type of ruling takes the focus off of the female victim.

    In this specific case the perp was convicted of murdering the woman and her unborn child so the focus was never off her; just that in this instance the perp was trying to get out of the second murder by erroneously using the same tact as zuzu by declaring the fetus “non-existent”.

    Roe v Wade never states a fetus is a non-entity. The verbage is “potentiality of human life” ie nascent human life and it isn’t about existence but about the rights of the woman to be free of state interference in her exclusive decision within the first trimester to seek to obtain a theraputic abortion. Again, based on a “right to privacy” — specifically:

    Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.

    NOT on a finding that the nascent human life has no rights.

    When someone commits a crime, all harm that arises from that particular instance is the legal responsibility of the perp. If a perp commits an armed robbery and slams into another car killing someone when fleeing the scene, then a murder charge can/will be charged. If a group of perps kill someone during the course of a crime, it doesn’t matter that only one pulled the trigger, all will be charged with murder because the harm was the result of the crime.

    Cara asks:

    And since I don’t see why I should be able to kill my husband legally but it’s murder when someone else does . . . I’m stumped. It doesn’t work that way.

    Let’s try another analogy. I can legally take my dog to the vet and authorize euthansia. This doesn’t grant my neighbor the right to come into my yard and kill my dog. It would not give my neighbor standing to demand that the killing of my dog be ignored by the state just because *I* can authorize its killing.

  11. Natalia
    Natalia November 24, 2007 at 9:42 am |

    This is a complicated legal issue. At least to someone like me, lol (all legal issues are complicated if you’re not equipped to deal with them).

    Here’s a story: When my aunt was still teaching, one of her students had a very abusive boyfriend. Well, they broke up, and the student was actually pregnant at the time. She wanted nothing to do with her boyfriend, but she really wanted the baby. And she met a guy who wanted to marry her and raise it with her. Complicated story, that one (she started seeing the new guy while still involved with the boyfriend, but the baby was definitely boyfriend’s, since that was the only sex she was having at the time).

    To make a long story short (too late?) her ex found out through mutual friends that she was pregnant, showed up on her doorstep, and stabbed her in the abdomen. He didn’t want her to have “his kid,” you see. That’s what he told the cops when he was apprehended.

    She survived, thank God, but wanted him prosecuted for both murder and attempted murder. This was back in the USSR, and I’m not sure what the laws were, but he was just charged with the attempted murder of the ex, and sent to jail.

    She was really vocal about the fact that he had gone after the fetus, first and foremost. To be honest, I’m not sure what to make of this, and my aunt wasn’t either – but there it was.

    So, there’s that particular perspective.

  12. zuzu
    zuzu November 24, 2007 at 10:06 am | *

    In this specific case the perp was convicted of murdering the woman and her unborn child so the focus was never off her; just that in this instance the perp was trying to get out of the second murder by erroneously using the same tact as zuzu by declaring the fetus “non-existent”.

    Darleen, you really do have trouble with the concept of personhood, don’t you? “not a person” =/= “non-existent.”

    When someone commits a crime, all harm that arises from that particular instance is the legal responsibility of the perp. If a perp commits an armed robbery and slams into another car killing someone when fleeing the scene, then a murder charge can/will be charged. If a group of perps kill someone during the course of a crime, it doesn’t matter that only one pulled the trigger, all will be charged with murder because the harm was the result of the crime.

    Well, no kidding, Darleen, but the problem here was that he was charged with a separate count of murder for causing the death of the fetus, who was declared by the court to be a legal person capable of being murdered for purposes of this case but not for purposes of abortion.

    Which, come to think of it, has the distinct whiff of judicial activism to it. Aren’t you and your crowd usually baying at the moon every time a liberal court sets out some “judge-made law”?

    He did commit a crime, that of murder. Because he apparently went after his victim due to her pregnant status, he should receive some kind of enhanced sentence for that. But declaring a fetus a person for one purpose but not another is inconsistent, contradictory, unnecessary and starts us down a slippery slope.

  13. kali
    kali November 24, 2007 at 10:15 am |

    And my concern for her is what makes me want violently or non-consensually inducing a miscarriage to be a crime.

    Is there any way to word this law that wouldn’t put abortion providers in danger? I know consent of the woman should be an unambiguous concept, but I can imagine crazy right wingers trying to fudge this concept so that, for example, someone who performed an abortion on a young teenage girl would be prosecuted. But IANAL obvs; I’m just wondering out loud.

  14. Hector B.
    Hector B. November 24, 2007 at 11:06 am |

    http://thewayweseeit.wordpress.com

    Reading this I prayed to god that this was tongue-in-cheek, to no avail.

    They allude to the non-marital (abstinence from) sex practices of our forebears. Here’s what I know: In an informal tally of baby boomers’ parents I once did, between 1/3 and 2/3 of fifties’ brides were pregnant at the time of the wedding. Before legal abortion, curvy eighth grade girls preyed upon by older boys and men became mothers at age 14. In 1970, my mother got an invitation to the wedding of her girlfriend’s oldest daughter, a high school junior, to be held two weeks hence, reception in the parents’ garage. The bride-to-be was a cheerleader; the groom was a football-playing high school senior. I believe the newlyweds were going to honeymoon at the bride’s parents’.

  15. trailer park
    trailer park November 24, 2007 at 11:28 am |

    During the Laci Peterson trial, I was surprised to learn that California has had a fetal murder statute on the books since 1970, around the same time they legalized abortion. If California can have both laws and still be strongly pro-choice, maybe fetal murder laws aren’t necessarily a threat to reproductive rights.

  16. kali
    kali November 24, 2007 at 11:34 am |

    Hector, that blog has posts that are definitely tongue in cheek, but I agree with you that that one seems to be for real. At least, I am confused– it is just standard dumbass anti-choice rhetoric, with no humour or irony in it at all. But the other posts on the blog are clearly satirically intended so I wonder if that post is somehow satire that has misfired. V. confusing.

  17. Darleen
    Darleen November 24, 2007 at 12:16 pm |

    Cara

    No analogy is perfect; however, killing a dog is going to land one in jail or prison.

    I made the comparison to show when someone denies that a fetus is nascent human life and that there should be no crime against a fetus separate than what happened to a woman, then one is arguing that a dog’s life is, indeed, more valuable than a fetus’s.

    Is that what we want?

    Zuzu seems to have a hardon about me and is ignoring the actual wording from the Roe v Wade I quoted above. Nascent humans have rights which increase during the gestation term. They never have “no rights”. Quoting again

    the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct.

    It is not “judicial activism” to either recognize the rights of nascent human life separate from the mother, nor to make law concerning the wrongful death of the fetus. While the court did find that “personhood” was only addressed in the Constitution in the 14th amendment, and it restricted itself to a post-natal existence, the court also took the time to explain the differing views – historically and legally – of the rights of the unborn even if they are not “persons in the whole sense” This is why Roe v Wade specifically avoids the question of “when life begins”

    We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
    It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.

    and keeps its focus on the first trimester, unfettered right to privacy of the woman and only grants limited state interest in the rights of the fetus as it approaches “viability”.

    Recognizing that a separate harm is committed to a fetus when a woman is assaulted is not judicial activism, but has precidence in both criminal and civil law. As TP notes in #19 above, CA has had a fetus murder statute for over 30 years … plenty of precedence there … here is a good quote from an article by a law professor dealing with CA’s law and how it also covers cases when even the perp doesn’t know the victim is pregnant

    Because the right to choose abortion is a right on the part of the woman to physical integrity and not a per se right to kill an unwanted fetus, the moment that physical integrity becomes compatible with fetal life, the right to maintain one no longer includes the right to terminate the other. (For similar reasons, a genetic mother has no right to terminate a surrogate mother’s pregnancy, no matter how much the former wants to avoid becoming a genetic parent.) The constitutional right to abortion is simply a right to stop being pregnant, no more and no less.

  18. Darleen
    Darleen November 24, 2007 at 12:34 pm |

    Cara

    I think that it is and should be a crime. It’s just not murder.

    Why not? Shouldn’t human life, even nascent human life, be more worthy of legal protection than a dog?

    Keep in mind that there are different degrees of murder, including both voluntary and involuntary manslaughter.

  19. Darleen
    Darleen November 24, 2007 at 12:40 pm |

    Just to note, that my comment (#22) is open while my #21 is in moderation … #22 will make more sense upon reading #21.

  20. chad
    chad November 24, 2007 at 2:06 pm |

    I’m confused about your view, Cara. According to the part of the article you quoted, the ruling was that:

    state laws declaring a fetus an individual with protections do not conflict with the United States Supreme Court’s ruling in Roe v. Wade that women have a constitutional right to abortion

    You seem to disagree with the ruling, so one would expect you to argue that the state laws *do* conflict with Roe after all. But that isn’t what you argue. Instead, you argue that the crime was not a double murder. But, according to the quote you provided from the news report, the ruling didn’t say whether the crime was a double murder–it just said that Roe is consistent with the view that the crime was a double murder. The judges could hold that Roe takes no stand on the issue of whether the crime was a double murder without holding that the crime was indeed a double murder.

  21. Hector B.
    Hector B. November 24, 2007 at 2:12 pm |

    The Supreme Court did away with Roe’s trimester framework in 1992, in Planned Parenthood v. Casey, replacing it with a new framework based on viability. Now there is a tradeoff between the mother’s right to terminate her pregnancy and the state’s interest in its future citizens. Before viability, states can regulate abortion based on the state’s interest in maternal health and potential life so long as those regulations did not impose an “undue burden.” The Court explained,”[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

  22. zuzu
    zuzu November 24, 2007 at 2:48 pm |

    Zuzu seems to have a hardon about me and is ignoring the actual wording from the Roe v Wade I quoted above. Nascent humans have rights which increase during the gestation term.

    No, Darleen. It’s not the rights of the fetus that increase, but the State’s interest. Try again.

    It is not “judicial activism” to either recognize the rights of nascent human life separate from the mother, nor to make law concerning the wrongful death of the fetus. While the court did find that “personhood” was only addressed in the Constitution in the 14th amendment, and it restricted itself to a post-natal existence, the court also took the time to explain the differing views – historically and legally – of the rights of the unborn even if they are not “persons in the whole sense” This is why Roe v Wade specifically avoids the question of “when life begins”

    Again, Darleen, what’s judicial activism is creating an entirely new crime — murder of a fetus — by judicial fiat, which is what the Texas court did. As for Roe v. Wade, see above — the two competing interests are the woman’s and the state’s; the fetus is not given any rights because it is not a person. The Texas court charged this defendant with a second count of murder by creating a category of person who does not exist under Texas law nor under the 14th Amendment.

    Recognizing that a separate harm is committed to a fetus when a woman is assaulted is not judicial activism, but has precidence in both criminal and civil law. As TP notes in #19 above, CA has had a fetus murder statute for over 30 years … plenty of precedence there … here is a good quote from an article by a law professor dealing with CA’s law and how it also covers cases when even the perp doesn’t know the victim is pregnant

    Which is charming, but irrelevant to the Texas case. California specifically amended its homicide law to include a fetus as a victim; Texas did not. Indeed, California’s homicide law was amended to include fetuses in response to a California Supreme Court ruling finding that a fetus was not a person under the old California homicide statute.

    Come on, admit it: you like judicial activism just fine when it comes out your way.

    As for your insistence that Cara is saying that harming a woman with the intent to cause a miscarriage should go unpunished — you’re just not even *trying* to read for comprehension, are you?

  23. chad
    chad November 24, 2007 at 2:52 pm |

    Yeah it was clear that your problem was with the law and its effects. I was just curious about your attitude about the actual decision. Are you saying that you think the decision was mistaken even though you take no position on whether the state law is in conflict with precedent? Or are you saying that you take no position on the correctness of the decision?

  24. preying mantis
    preying mantis November 24, 2007 at 2:58 pm |

    “During the Laci Peterson trial, I was surprised to learn that California has had a fetal murder statute on the books since 1970, around the same time they legalized abortion. If California can have both laws and still be strongly pro-choice, maybe fetal murder laws aren’t necessarily a threat to reproductive rights.”

    A fair number of states have fetal death statutes. Basically, if the fetus is past a certain point (usually sometime in the middle of the second trimester) and you cause either the death of the mother or attack the mother and cause the death of the fetus, they have an extra charge to tack on. It’s really not much of a threat to reproductive rights absent a huge political movement doing their damnedest to make sure that women are treated as having about a tenth of the value of a fetus.

    Unfortunately, we kind of have that exact thing going on right now, and you do run into problems once you have somebody really trying to turn any legal basis for fetal personhood into precedent.

  25. Darleen
    Darleen November 24, 2007 at 3:04 pm |

    zuzu

    Well, then I suppose you could state that SCOTUS in both Roe and Casey were judicial activism, seeing as they both invented new “rights”

    and why would the state have any interest in protecting nascent human life if indeed it had no rights as you keep asserting to the complete contradiction of the quote I provided?

    If you’re arguing from your own faith, fine. Please don’t pretend it has anything to do with law or biology.

  26. Darleen
    Darleen November 24, 2007 at 3:27 pm |

    Cara

    I never argued nor assert nor even alluded that the woman shouldn’t be the focus of any murder/assault charge. Do not deliberately misconstrue what I have stated. I’ve been clear. A woman has the right to choose to terminate her preganacy prior to viability without undue state interference. I’ve been polite and I’ve tried to answer questions you purported to ask.

    However, if you’ve completely made up your mind that a fetus has no rights and is a non-entity until birth (before the cord is cut? after? before first breath? after?) I don’t understand why you ask.

    Also “miscarriage” is a layperson’s word for abortion. There are spontaneous abortions and induced abortions. You claim to want some sort of penality for a illegally induced abortion, but you don’t want to involve the rights of the fetus in any manner.

    Over 71% of Americans in a CNN/USA Today/Gallup poll believe that abortion should be generally illegal after the first trimester. That is a mainstream pro-choice view. It recognizes the biological reality of nascent human life and balances those rights with those of the mother.

    The view of viable fetus as non-entity is the outlier view.

  27. Kat
    Kat November 24, 2007 at 3:34 pm |

    Many a potential father has been denied the chance of fatherhood by selfish women who would rather murder their unborn than let the potential father experience the joys of fatherhood

    Well excuuuse the fuck outta me if I don’t want to be some asshole’s incubator so he can experience the joys of unplanned fatherhood. I am one selfish beyotch.

    Remember ladies think before you open your legs !! and if you must and get caught there are millions of baby less couples out there who would love to adopt your unwanted child.

    This is bullshit. No, there really aren’t all these loving couples who just want a baaaaby to raise. There are many loving couples, however, who want a perfectly healthy, attractive, white baby though. Thing is, a lot of women don’t give birth to perectly healthy, attractive white babies. Nobody wants the half black that was born prematurely with fetal alcohol syndrome.

    Maybe the article is “tongue-in-cheek”, I don’t know. A lot of people really do think this way though, and it pisses me off.

  28. chad
    chad November 24, 2007 at 3:45 pm |

    So you’re saying that you’re unsure whether the decision was legally correct, but you disagree with the decision anyway. So you think that courts should do something more than make legally correct decisions–you think a good decision can be legally incorrect. I find this view puzzling, but maybe I’m missing something.

  29. Darleen
    Darleen November 24, 2007 at 4:15 pm |

    ;any case that 71% of people is not entirely made up of those who consider themselves pro-choice

    Granted. I would suspect a well done poll would have selected in proportionality to ratios of pro-choice/pro-life within the population at large … which would mean something like 52% pro-choice and 49% pro-life.

    In fact, the majority of that number would not consider themselves pro-choice.

    Then I would suppose that would depend on how you are defining “pro-choice”. Majority of Americans want induced abortion to remain legal in the first trimester. I consider that a pro-choice position.

    I’m curious

    change rape laws to make convictions easier

    any specifics?

  30. chad
    chad November 24, 2007 at 5:00 pm |

    Right. As I said, you think that the court should sometimes make a legally incorrect decision. That this is an odd view is consistent with the points you made in your last comment, e.g., that the court is supposed to interpret the law and that the law is sometimes ambiguous.

    It seems to me that it would make more sense for you to say that you just don’t like the relevant state law, and that you have no opinion about the court’s decision.

    Sorry if I caused exasperation.

  31. zuzu
    zuzu November 24, 2007 at 5:39 pm |

    and why would the state have any interest in protecting nascent human life if indeed it had no rights as you keep asserting to the complete contradiction of the quote I provided?

    Darleen, let me use little words to explain this to you: SCOTUS was not interested in fetal rights. Period. It was interested in the state’s interest in preventing termination of viable fetuses and regulating abortion.

    If they had based the decision on fetal rights, why would those rights change over the course of a pregnancy? If a zygote has the same rights by virtue of being a person that a near-term fetus does, then why would the court say that the state couldn’t regulate first-trimester abortions? If it’s murder at 26 weeks, how is it *not* murder at 2 weeks?

    Well, then I suppose you could state that SCOTUS in both Roe and Casey were judicial activism, seeing as they both invented new “rights”

    The right to privacy is hardly a new right, and the Ninth Amendment, while sadly under-utilized, provides a sound basis for protecting Americans against government intrusions on rights not specifically enumerated in the Constitution.

    In any event, you guys are the ones who are always screaming about “judicial activism” — but again, only when cases don’t turn out the way you want them to. Just admit it — this fits into the definition of “judicial activism” that you all have been throwing around for years, but you won’t complain about it because you like the result.

  32. zuzu
    zuzu November 24, 2007 at 5:41 pm |

    It seems to me that it would make more sense for you to say that you just don’t like the relevant state law, and that you have no opinion about the court’s decision.

    Chad, the relevant state law says nothing about fetuses; the court interpreted it to include them.

  33. zuzu
    zuzu November 24, 2007 at 7:06 pm |

    Actually, it’s a little complicated; this article from Texas Lawyer explains it a little:

    Lawrence filed a petition for discretionary review with the CCA, which unanimously affirmed the 5th Court’s judgment. As noted in the majority opinion, Lawrence argued in his petition to the CCA that the definition of an “individual” in the statute under which he was prosecuted is void for vagueness. Keller wrote that under Penal Code §§19.02(b)(1) and 19.03(7)(A), a person commits capital murder by intentionally causing the death of more than one person during the same criminal transaction. Keller further noted that a “person” includes an “individual” under Penal Code §1.07(a)(38) and that Penal Code §1.07(a)(26) includes an unborn child in the definition of an individual.

    “It follows from these provisions that a person who intentionally or knowingly causes the death of a woman and her unborn child, at any stage of gestation, commits capital murder,” Keller wrote.

    Incidentally, it wasn’t even yet a fetus, but a 4-to-6-week-old embryo, so viability wasn’t even an issue.

  34. zuzu
    zuzu November 24, 2007 at 7:11 pm |

    Another issue was that he was charged with capital murder, which requires that the defendant kill more than one person. Texas does love the death penalty, though.

  35. akeeyu
    akeeyu November 24, 2007 at 8:40 pm |

    “Actually, “miscarriage” is the medical word for abortion.”

    No, it’s not. It absolutely is not. If you’re pregnant and the embryo/fetus dies inside you, they put Missed Abortion in your medical record. If you have three or more spontaneous abortions (miscarriages) in a row, your new medical label is “Habitual Aborter.”

    It pisses me off to no end to see more penalties and significance assigned to the death of an embryo/fetus than an actual breathing woman, but at the same time if some jackhole deliberately caused the death of the fetuses currently residing inside me, I would goddamned well want them prosecuted for the death, and I’m very much pro-choice.

    The fact that spontaneous abortions (miscarriages) happen all the time is completely irrelevant. Car accidents kill people all the time, but if you deliberately run somebody off the road and kill them, the law does tend to frown on this.

    To me, intent is important, but it’s not the only factor.

    Did the woman carrying the fetus intend to carry it to term?

    If not, did she intend to have the termination done in a safe medical manner, or was she intending to be beaten and/or stabbed until the embryo/fetus died? I would argue that for most women, physical violence is not the preferred way to terminate a pregnancy, nor is it the safest. Even if a woman was attacked on the way to an appointment to a D&C (medical abortion), that’s not a good enough defense of her attacker, nor should it be.

    Forced abortion is just the flip side of forced pregnancy. They’re both about stripping a woman of choice.

  36. chad
    chad November 25, 2007 at 2:52 am |

    Chad, the relevant state law says nothing about fetuses; the court interpreted it to include them.

    Given the info you provide, zuzu, I don’t see why you say this. If state law defines ‘individual’ to include the embryo, and it also protects individuals, then it obviously follows that the state law protects embryos. So why would you say that hte state says nothing about this? This isn’t interpretation–it is direct logical inference. I’m just not following you. It seems to me that the NYT report Cara quoted, and Cara’s original take on the issue, are correct. Specifically, it seems to me that, given the info you’ve provided, it is correct to think that the state law is clear about protecting the embryo, and that Cara’s main problem should be with that law, not the courts (as she has stated).

    Cara, if a person doesn’t agree with a decision, it seems obvious that she thinks it ought to have been decided differently than it was. In this case, you have said that you don’t agree with the decision even if the only alternatives are not legally correct. So you must think that, in certain cases, the court ought to make the legally incorrect decision.

    I don’t think that this issue is merely semantic. The issue turns on how much “activism” (and what sort) you are comfortable with in the courts. So far, it looks to me as if you don’t think that judges should be constrained by the law at all. After all, you think that they should make legally incorrect decisions in certain cases (namely, in cases where the result would be better if they made the legally incorrect decision). I take it that this goes well beyond the sort of judicial activism that is commonly defended. And I don’t think it is really a defensible view. That’s why I recommended that you instead opt for the position that takes no stand on the action of the court, but regards the law as mistaken.

  37. zuzu
    zuzu November 25, 2007 at 11:32 am | *

    Given the info you provide, zuzu, I don’t see why you say this. If state law defines ‘individual’ to include the embryo, and it also protects individuals, then it obviously follows that the state law protects embryos. So why would you say that hte state says nothing about this?

    Because “individual” and “person” usually have different meanings under the law. Persons can act and have rights, and can include non-human entitites such as corporations that can act. “Individual” doesn’t necessarily connote personhood.

    I’ve now looked at the statutes at issue, and the court’s interpretation is probably a fair one given the bill that added protections for the unborn (who are considered “individuals” except for purposes of the kidnapping laws, interestingly enough). Fact is, though, these fetal-protection laws are pretty much the thin end of the wedge for diminishing the rights of adult women over their own bodies.

  38. chad
    chad November 25, 2007 at 2:22 pm |

    I see, so you don’t like the decision but you don’t think that the court should have decided differently. So you don’t have any criticism of the court. That makes more sense.

    Fact is, though, these fetal-protection laws are pretty much the thin end of the wedge for diminishing the rights of adult women over their own bodies.

    Yeah that’s my point, zuzu: pro-choice criticism should be directed towards the law, not the court (assuming that the court’s reasoning was otherwise sound).

  39. zuzu
    zuzu November 25, 2007 at 3:11 pm | *

    I see, so you don’t like the decision but you don’t think that the court should have decided differently. So you don’t have any criticism of the court. That makes more sense.

    No. Saying it’s a fair interpretation of a provision of the law doesn’t mean there’s no basis for criticism. There’s always a basis for criticism. There are undoubtedly reasons why this could have come out a different way, but I haven’t read the decision itself.

    And chad? Don’t try to tell me how I think or feel about anything, hm? Especially when you’re just flat-out wrong.

  40. Darleen
    Darleen November 25, 2007 at 3:59 pm |

    #41 Cara

    I asked because I’m most family with how CA’s rape law works, which is in line pretty much with what you state.

    Also, rape vics in CA are afforded special considerations unavailable to other crime victims.

  41. Darleen
    Darleen November 25, 2007 at 4:00 pm |

    oops

    family = familar

  42. Darleen
    Darleen November 25, 2007 at 4:00 pm |

    oops

    family = familiar

  43. chad
    chad November 25, 2007 at 4:26 pm |

    And chad? Don’t try to tell me how I think or feel about anything, hm? Especially when you’re just flat-out wrong.

    The first part of that comment was for Cara. Sorry that wasn’t clear.

  44. Darleen
    Darleen November 25, 2007 at 9:08 pm |

    I don’t know the particulars of that rape case and tried to find something recent .. the articles state that while the DA is not pressing charges based on insufficient evidence, the Sheriff’s department was keeping the case open.

    How would you change the law (and I gave you CA’s relevant penal code section) in a way that would affect how evidence is gathered, evaluated and charges filed?

    In DA Carr’s case she had promised to change her office’s culture from a win-at-all-cost attitude. That’s actually a good thing because DAs, Public Defenders and Private Defense attorneys are all considered officers of the court and their first responsibility is to justice. The burden of proof is always with The People. The defense only has to present reasonable doubt. That’s the way our system works. Not perfect but would you want the burden to switch to the defense? That innocence be proven rather than guilt?

    You can see what harm happens to paint all DA’s as “screw the facts I wanna win and I don’t care who I destroy on the way” villans with the Nifong hoax debacle.

    I’ve been lucky enough to work for the last nine years in a very busy, but filled with good people, DA office in So Cal. We also have great Victim/Witness advocates that go the extra mile. Sexual assault/Rape/domestic violence is treated very seriously … one of the few areas of crime that is prosecuted vertically or out of a special dedicated unit. Also, the only area of crime in which the victim’s name and personal information is kept out of the court files … including off the complaint.

    The media likes the sensational, so the wobbler cases get the press but all the slam dunk ones …where the perp faced with irrefutable evidence pleas rather than take it to court … go unnoticed.

    Go volunteer at your local DA office sometime. Spend at least six months on the job, talking with the DA’s and clerks and see what happens that never makes Law and Order where stuff goes from crime to conviction in 60 minutes. I really wish a lot more people paid attention to the nuts-n-bolts judicial system. Maybe then they wouldn’t be taking pains to get out of jury duty.

  45. Darleen
    Darleen November 25, 2007 at 9:15 pm |

    Oh

    Just for some perspective

    County-wide, year-to-date, we have entered 69,862 misdemeanor and felony level police reports into our DA tracking system (I noted the number when I left the office on Wed. It took us to 12/28 last year to reach that number). Traffic infractions don’t come through our office.

    and it is not Los Angeles County.

  46. Elaine Vigneault
    Elaine Vigneault November 25, 2007 at 9:36 pm |

    GumbyAnne @ #10 is right. The fetus could have full human rights except where they interfere with the pregnant woman’s rights. It’s her body, her choice to use it to sustain the fetus’ life or not. It’s not the government’s choice or the fetus’ father’s choice or anyone else’s choice; it’s hers.

    Right are not these all or nothing things. We all have rights up to some point. That point varies depending on the situation.

  47. Darleen
    Darleen November 26, 2007 at 12:37 am |

    Read my link, Cara. The DA has referred the case herself to CA AG Jerry Brown for review.

    You may have never dropped the case, but how would you have assured a conviction without evidence?

    I’m not trying to goad you, I’m speaking as someone within the system who has seen both its good and bad sides. And I honestly wanted to know what tangible changes you thought were reasonable and appropriate, and it appears that CA has exactly what you are advocating already in place.

    Life sometimes hands up shitty things, it doesn’t make it a conspiracy.

  48. Marle
    Marle November 26, 2007 at 10:48 am |

    You may have never dropped the case, but how would you have assured a conviction without evidence?

    Without evidence? Without evidence?! There were 3 witnesses! What the fuck kind of evidence do you want in rape cases, if 3 witnesses aren’t enough?

    The California rape laws might be perfect on paper, but if the DAs think that 3 witnesses is “insufficient evidence” then rape is effectively legal.

  49. Choice Words
    Choice Words December 4, 2007 at 2:20 pm |

    [...] Hat tip to Cara at Feministe. [...]

Comments are closed.

The commenting period has expired for this post. If you wish to re-open the discussion, please do so in the latest Open Thread.