I’ve conjured a horrible, horrible scenario, in the hopes of drawing out some moral and/or legal analysis.
Details of the hypothetical case
Let’s pretend John Doe is married with a young daughter. He is very religious and very active with the pro-life movement. Mary Moe is a psychopath who has been stalking John. At about 10:15PM on the night of August 27, Ms. Moe breaks into the Doe house. Armed with a military knife, she takes the child as a hostage and forces the wife to tie John up. Then she takes the wife and child out of Mr. Doe’s sight. A few minutes later she returns to the bedroom and says the wife and child have been “locked in the closet”. She proceeds to rape Mr. Doe, unprotected. She then stabs him in the scrotum.
At 1:00AM on August 28, a neighbor calls 9-1-1 to report a woman leaving the Doe house brandishing what appears to be a knife. At 1:05AM police arrive on scene and find Mr. Doe tied to his bed, gagged and bleeding but still conscious. They find the wife and child gagged and unconscious in a closet with multiple stab wounds. All are evacuated to a hospital. Mr. Doe quickly recovers but is rendered impotent. Mrs. Doe will remain in critical condition for days before making a miraculous recovery. The daughter never wakes up and will die of her injuries.
Mr. Doe names Mary Moe to authorities and she is arrested at 8:00AM August 28 while leaving a corner store. Her purchase - pregnancy test kits - was confiscated. Mr. Doe identifies her that afternoon. Ms. Moe tells her handlers that she missed her period and thinks she might be pregnant. She is administered a daily pregnancy test.
The police search Ms. Moe’s house and find evidence of stalking - multiple photographs of Mr. Doe, newspaper clippings related to him - and printed materials relating vasectomy procedures and male reproductive anatomy. They also find supplies of mifeprisone and misoprostol (under someone else’s name).
Ms. Moe is arraigned on Monday the 31st on charges of burglary, attempted murder, rape, malicious castration, and murder (the daughter died that morning). Ms. Moe is assigned a public defender.
On Tuesday the 1st the police break into Ms. Moe’s electronic devices. They discover extensive evidence of stalking - digital photographs of Mr. Doe & his house, calendar entries mentioning Mr. Doe, etc. They discover that she controls an online persona who is very actively pro-choice. One post in particular, dated August 25, reads, “wouldn’t it be funny if a woman raped pro-lifer and aborted his baby”.
The prosecutor and detective interview Mr. Doe at the hospital that evening. Mrs. Doe had just been moved from critical to stable condition, but she was not available to interview. Among other things, Mr. Doe shares concern that his rapist might become pregnant with his child, and that he wants to seek custody of that child.
On Thursday, September 3, Ms. Moe’s pregnancy test comes back positive. She immediately asks for an abortion. The jail - a public institution - seeks advice of counsel in handling this request due to the nature of her charges (including one count of rape, one count of malicious castration). Counsel for the jail visits the prosecutor’s office to discuss the case.
Meanwhile the jail, Ms. Moe, and her attorney agree to let a physician examine her that afternoon. The physician certifies the pregnancy but finds no medical grounds to justify an immediate abortion. She also orders that the jail unshackle Ms. Moe due to her pregnant state.
On Friday, September 4, the jail denies Ms. Moe’s request for an abortion. They note the lack of medical necessity and cite 1) preservation of evidence - prosecution wants a paternity test to help prove their case beyond a reasonable doubt, 2) their opinion that an abortion could constitute additional harm to the victim, and 3) the “penological interests” of deterring similar crimes. The public defender goes before the judge to object. In doing so both sides reject an invasive paternity test, and the judge ultimately agrees with the prosecution and jail. Trial is set for October 15, and the question regarding abortion would be postponed until after the criminal trial.
After this order, Ms. Moe obtained assistance from private counsel regarding the abortion business.
An appeal of this ruling is filed September 10 in federal court on Eighth Amendment “cruel and unusual punishment” grounds. It was turned down as premature.
The defendant is Ms. Mary Moe, accused of breaking into the Doe house, attempting to murder Mrs. Doe, raping and castrating Mr. Doe, and murdering their young daughter. Her criminal trial is held on October 15 and 16 with the verdict handed down today, the 19th. Prosecution presents a very strong case based on the theory that the defendant conspired to rape Mr. Doe, become pregnant with his child, and then abort the fetus. At the time of the trial Ms. Moe was seven weeks pregnant and prosecutors presented a positive paternity test proving that Mr. Doe was the father.
The jury rejects the insanity defense, returning a guilty verdict on all five felony counts: burglary, attempted murder, rape, malicious castration, and murder. An appeal on the merits of her criminal conviction is seen as unrealistic. Sentencing is scheduled for early November.
The state is authorized by law to seek the death penalty. They would prefer to let Ms. Moe carry the baby to term and let the Does take custody of the child, then administer a lethal injection. The state does not want to grant the abortion but is willing to compromise on the penalty.
Victims Mr. & Mrs John Doe, whose daughter was murdered and who were both forcibly sterilized as a result of Ms. Moe’s actions, did not learn that Ms. Moe was carrying John’s child until the trial, and are now preparing a civil motion for custody of the unborn child. They are staunch pro-lifers and would consider the abortion of that child to be another murder, but do not support the death penalty even in this case.
Ms. Moe seeks an immediate abortion and a light penalty. She argues that her right to privacy covers her choice to abort her pregnancy, and that being forced to bring the child to term is a “cruel and unusual punishment”. Also that the death penalty is a cruel and unusual punishment.
Hopefully I didn’t botch any details. Please remember that this is all hypothetical. Regarding morality and legality, what is your opinion on this scenario?