I tend to agree although I think an assault on a woman which causes the fetus/unborn child to die should be a heightened penalty. For whatever may be said of legal abortion nobody thinks that an attacker has a “right to choose.”
Many problems arise with this. My state has a law which says that a fetus/unborn child is considered a person and can be a victim of a crime of violence, such that if you punch a pregnant woman in the stomach, you can be convicted of two counts of battery, or two counts of murder, etc.
But it has these exceptions:
W.Va. Code 61-2-30
(d) Exceptions. – The provisions of this section do not apply to:
(1) Acts committed during a legal abortion to which the pregnant woman, or a person authorized by law to act on her behalf, consented or for which the consent is implied by law;
(2) Acts or omissions by medical or health care personnel during or as a result of medical or health-related treatment or services, including, but not limited to, medical care, abortion, diagnostic testing or fertility treatment;
(3) Acts or omissions by medical or health care personnel or scientific research personnel in performing lawful procedures involving embryos that are not in a stage of gestation in utero;
(4) Acts involving the use of force in lawful defense of self or another, but not an embryo or fetus; and
(5) Acts or omissions of a pregnant woman with respect to the embryo or fetus she is carrying.
Seems sensible enough, but what if the Supreme Court overrules Roe? Then this section comes back into force:
W.Va. Code 61-2-8
Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.
How do these two sections interact? It would seem like exception #1 does not apply because the abortion is not “legal.”
Exception #2 mentions abortion without the “legal” qualifier. Would that exception thus survive? Or could it be argued that this latter enacted statute supersedes the old abortion law? Or does the exception only apply to abortions to save the mother’s life?
On one hand, you would have the abortion law which punishes doctors with 3 to 10 years in prison but another section which either: 1) makes it murder, or 2) makes it legal!!!
Bad legislative drafting.