The short version is a man tried to give his pregnant girlfriend an abortion-inducing drug without her knowledge. She did not ingest the drug but his plan was found out and he was convicted of attempted murder of the unborn child. (As it happens she miscarried later unrelated to this.)
What struck me about this is the disconnect where we allow a woman to terminate a pregnancy yet sentence this man to 22 years in prison for attempted murder. I have no problem with getting him for some lesser crime (e.g. assault) but murder seems at odds with allowing a woman to terminate her pregnancy with no repercussion.
I could see this charge if it was in the 2nd or 3rd trimester but not in the first (I did not see in the article how far along the woman was…I am assuming the 1st trimester).
FTR I am pro-choice. For debate I am curious if others think this is an appropriate crime to be charged with in these circumstances? (As in whether it makes sense, not debating if this is how the law is actually written.)
That doesn’t explain away the disconnect. Are there any other cases where it’s someone other than the victim who gives or withholds consent?
Who’s the victim here? If this is a crime against the woman, then “attempted homicide” isn’t the appropriate charge, because she’s not the one he was attempting to kill. If it’s a crime against the unborn child, then consent isn’t an issue; fetuses don’t consent to abortions.
It’s funny that you mention this example, because it’s one used in Judaism to support abortion rights. Jewish law is often based around rabbis arguing with one another on how to interpret various rules. One of the famous debates involve an ox escaping and causing damage. Based on the negligence of the owner, and the damage the ox caused, different penalties are hashed out. For example, if negligence causes the escape, and a man is killed, the owner is put to death as a murderer (if I remember this right – the exact details are foggy, I learned this years ago in a high school class). If the bull crashes into a pregnant woman and causes a miscarriage though, the owner of the bull only pays a fine. So from that ruling, it is derived that fetuses are not considered on par with a human life in Jewish law.
Well, to begin with this sort of assault could have imperiled the woman’s life as well – but, as background: In at least 30 states, if you commit an assault or a reckless/negligent injury on a pregnant woman that results in loss of the pregnancy, it can count as an instance of homicide – the specifics of what charge and punishment applies vary both from state to state and depending on such things as the stage of pregnancy, the nature of the encompassing assault/negligence, and if there can be shown deliberate intent/depraved indifference/etc.
Wisconsin apparently has something like 14 different statutory offences that include prenatal injury either in themselves or as a special case. I’d expect there were several of those that were simultaneously involved here and it was prosecutorial discretion which one(s) to charge him with.
The law in Wisconsin explicitly excludes from those when it happens in the course or as an effect of the woman’s own conduct, or of a procedure conducted “in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a licensed physician”.
The article says she got pregnant in August and the attempt to trick her into consuming drugs happened Sept. 17th.
My initial emotional response was that a murder charge was just fine, although I thought it was either not correct application of the law, or the law would need to specifically except abortion.
But thinking about it further and for an early 1st trimester pregnancy I’d say it should count as some sort of grievous assault on the mother.
The pro-life counter arguments are obvious, although I don’t agree with them.
Someone could try to make a pro-choice argument that even assault is too harsh a charge, since it would be fine for the woman to have the pregnancy terminated, but I hope the proponent of such an argument would see that it’s somewhat similar to say that since the woman is free to go to a clinic and have fat sucked out of her abdomen it would also be fine for someone to do that to her without her consent.
No, as mentioned above the victim in this case is the unborn child. That is who he was convicted of attempting to murder. So, the law recognizes that the unborn child is a person subject to the law insofar as if you attempt to kill it, it is attempted murder.
Yet, in an absurd way, the law also recognizes that the woman may have an abortion, which is an attempt to kill the child, yet she has a constitutional right to do so.
IOW, if we justify abortion on the grounds that it is not murder, it is a healthcare decision, a right of a woman not to bear an unwanted child, etc. then an attack on the unborn child should be some species of assault, battery, aggravated battery of the woman as the law recognizes that the unborn child is not a subject of being murdered if his mother does it. The victim should be the woman and not the child if we are to be consistent.
No? This was my opinion in a thread that is more about what the law should be than whether or not the prosecutor and court applied existing law correctly. My opinion is that a 1st trimester fetus shouldn’t be considered the victim of murder.
The strict pro life position seems to be straightforward. The consistent position would logically be:
mother gets an abortion = murder of the child
OP crime = murder of the child and assault on the mother
From a pro choice position, at first glance then the consistent position seems to be:
mother gets an abortion = no crime
OP crime = assault on the mother
But that’s wrong. The pro choice position does not stem from a belief that a fetus should not have rights, but from a belief that the right of the mother to bodily autonomy supersedes the any rights that the fetus might have. In general, the pro choice position does not explore what rights the fetus should have absent a mother, since the situation doesn’t arise. But that’s really what we’re asking in the OP scenario. In a sense, it’s similar to the need for the pro choice position to explore the rights of an early-stage fetus when we have the technology to grow a baby in a synthetic womb.
Also, I think that the gut reaction to the crime in the OP is influenced by the fact that the perpetrator is the father rather than a random stranger. But should that really make a difference? I don’t think the pro choice is position is that a parent has an explicit right to kill a fetus. It is that the mother has a right to bodily autonomy that overrides the right of the fetus to “use” her body, and that exercising that right kills the fetus only incidentally. So a father who commits the crime in the OP should not be treated any differently from a stranger who commits that crime.
So: my first reaction was that from a pro choice perspective it should not be murder; but on reflection, I think that in addition to assault on the mother, the crime in the OP should be the same charge that we would apply if we had the technology to grow a fetus in a synthetic womb, and someone killed it. I don’t think most people who are pro choice have necessarily considered that question.
The charge is not “murder.” The charge, according to your link, is " . . . attempted first-degree intentional homicide of an unborn child . . .". This would seem to refer to a statute which is specific to unborn children.
Women are allowed to have abortions because the fetus is dependent upon the female body to grow into an independent being. And women have the right to decide what risks of injury and death they are willing to undertake with relationship to their own bodies.
Being pro-choice is not the same as saying life isn’t precious. It is a basic belief that what goes on with a woman’s body is her choice and hers alone. It is not about the responsibility of raising a child, but about the risks and inherent damage to a woman’s body as a result of bearing a child to term and giving birth. In the USA we like to take a sanitized view of this, and close our eyes to what women suffer to continue the human race. A lucky few have no significant long-term effects, but the harm can be immense.
I sometimes equate abortion to kidney donation: I don’t think the state can can compel me to donate a kidney to my own child, so they can’t compel me to donate womb space to an unborn person. Where it gets touchy in my mind is once the infant is viable: I think the right to not be pregnant doesn’t automatically imply the right to kill the fetus. I find it easier to support a woman’s right to have a c-section or induced delivery at 30 weeks even if there’s no medical reason than her right to abort.
So, this would be like I have decided to donate my kidney to my child, who needs it and can only use mine. If someone deliberately poisons me to taint my kidney and make it unsuitable for donation, have they murdered the child it was meant to save?
I was under the impression that the pro-choice side relied on the belief that the unborn child was not a life, at least one that was incapable of being “murdered.” Isn’t that why they insist on the term fetus instead of unborn child? We hear in these threads all of the time that it is just a clump of cells, not much different that removing a cancer from your body. It is at many times not referred to as abortion, but as “women’s health care” or some other euphemism.
I think that just a distinction is necessary for the pro-choice side. If we hold that the unborn child is a life capable of being murdered, then any balancing test would clearly be against legal abortion. The right not to be murdered on one side would clearly outweigh nearly any inconvenience the woman suffers as a result of pregnancy.
Well, of course people’s opinions may vary widely on the issue. But no, for most people I don’t think you are describing things fairly. The pro choice position is a positive assertion of the woman’s right to bodily autonomy relative to the rights of a fetus, not an assertion that a fetus has no rights at all. If one is ethically confident in that relationship, the question of exactly where the rights of fetus lie does not need to be addressed unless a fetus can be grown independent of a woman’s body.
I disagree. To assess the question, one must first define the rights at stake in order to determine which rights take precedence.
I think everyone can define the rights of the woman in this scenario and everyone agrees with them: a woman wants to maintain her bodily autonomy, have the choice of whether to reproduce, whether to suffer the pain and inconvenience and possible health consequences, and even death in rare circumstances.
But in order to determine if that means she should be able to choose to abort the fetus/unborn child, one must necessarily then determine what rights the fetus/child has. Without conducting that analysis it is simply impossible to baldly state that the woman’s rights control. To come to that conclusion, one has decided that whatever rights the fetus/child has are lesser in comparison to those described above.
However, getting back to the OP, if we hold that an unborn child has such a right to life that the taking of that life would be considered murder under the law, independent of the woman’s choice, then it seems inconceivable that the balancing test would be in the woman’s favor. I know of no balancing of harms in the law where one’s convenience is more important than another’s death.
That is why I think the OP makes an interesting point. If the fetus has these lesser rights such that a woman’s convenience is paramount then it does not follow that a charge of attempted killing (or illegal abortion) of this unborn child should amount to an attempted murder. It is internally inconsistent.
ETA: Or are you saying that some on the pro-choice side hold the position something like, “Well, hell yes, its murder, but fuck the little bastards. It’s my body and if I want to murder it, I will”? That seems not at all in comporting with the standards of any decent society and is untenable.
One be confident that a is less than b without precisely defining by how much a is less than b.
In any event, I was doing my level best to discuss how the principles apply to the OP without getting dragged into the pro choice / pro life debate per se. Both sides have a defensible ethical position that’s not hard to understand in principle, and I’d rather limit this to discussing the logical implications of each position to the OP.
I’m not going to argue pro choice vs pro life with you.
Obviously this disingenuous nonsense is the diametric opposite of what I said.
Well, just IMO as I am not the legislator or the court of course, that’s just why parallel-history legislator **JRDelirious **would **not **have voted for “fetal homicide” statutes using those terms about “unborn child” that are used in many of the states.
However… we know that not all killing is what the law calls “murder”… but at the same time not calling it murder it does not mean it can’t be determined to still be treated as a crime or a tort.
I subscribe to the tradition that a natural person is one who lives free from the motherly womb; so I woud not have legislated to call it murder. But it is causing a damage upon an entity that is within the woman’s body and tied to her organism, so her consent would be required for it to be intervened with; and it is an interruption of a natural process that, under normal circumstances, is life-risking but not per se terminal but has a higher risk if meddled with unprofessionally. So then I’d say redraft the bill and call it (malicious/wrongful/negligent) (termination of pregnancy/fetal death/gestational mayhem) and penalize it or recognize a cause of action, separate and distinct from those we use for murder, where the injured party is the woman.
I am not at all arguing pro-life vs. pro-choice. And I agree that a can be less than b without defining the exact counters of a.
The principles in the OP suggest that if the standard is that a fetus is protected by murder laws, then a cannot be less than b. (Again, unless the argument of some on the pro-choice side are saying yes it is murder but I don’t care).
I am not in this thread, then thereby saying that abortion should be illegal, I am saying that the standard of protection of the fetus cannot be one of murder laws applying.