# Pro-choice / Pro-Life? Are 3 counts of 1st degree murder what's needed here? **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2002, 6:48pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084 "2002-06-26T18:48:45Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![JohnBckWLD](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JohnBckWLD](https://boards.straightdope.com/u/JohnBckWLD)\ **Post date:** [June 26, 2002, 6:48pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/1 "2002-06-26T18:48:45Z")
[Putting burial customs aside for a moment from this GD thread](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=122191), a sickening story reported in [The NY Daily News](http://www.nydailynews.com/2002-06-26/News_and_Views/Crime_File/a-155626.asp), [Newsday](http://www.newsday.com/news/local/newyork/ny-nykill262763834jun26.story?coll=ny%2Dnynews%2Dheadlines) and [The NY Post](http://www.nypost.com/news/regionalnews/51276.htm) once again raises the question; Is there 1 count of murder missing from an indictment? Larry Smith, a 30 year old paralegal from Brooklyn, strangled his live-in girlfriend, Melesha Francis, who was 8 months pregnant and drowned her 6 year old son, Michael Stultz, after he spilled bubbles in their apartment. According to the Post, Smith was arraigned on 4 counts of murder last night - **2** second-degree & **2** first-degree, making him eligible for the death penalty. Ms. Francis was 8 months pregnant with Smith’s child. That _baby_ was most likely a viable human being who could have probably survived outside the womb of its’ mother. Something inside of me is saying this monster should be indicted on additional murder charges for the death of the unborn child. (Especially because the odds of him getting the death penalty are somewhere between slim and none). Even though I realize bringing up these types of stories is a common tactic used by the pro-life crowd, my pro-choice sensibilites / tenets get a bit shaken when I read these (obviously emotional) reports. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [June 26, 2002, 7:10pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/2 "2002-06-26T19:10:40Z")
Hm… at the very least they could charge him with performing medicine without a license! (ahem… not trained to perform abortions) In very poor taste, I agree, but hey, it wouldn’t overturn Roe vs Wade, either. ---
**Author:** ![ResIpsaLoquitor](https://avatars.discourse-cdn.com/v4/letter/r/b3f665/32.png) [@ResIpsaLoquitor](https://boards.straightdope.com/u/ResIpsaLoquitor)\ **Post date:** [June 26, 2002, 7:11pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/3 "2002-06-26T19:11:43Z")
Short answer: probably not. I don’t have NY’s penal code in front of me (and IANA lawyer), but as far as I know a child has to be alive outside the womb in order to be considered a “murder” victim. There might be special statutes for fetal homicide, but it’s not the same penalty. I recall that there is federal legislation in the works (anyone remember if it passed?) that an unborn child killed on federal property would be considered murdered. One of my law professors testified before Congress in favor of it. ---
**Author:** ![Eve](https://avatars.discourse-cdn.com/v4/letter/e/9e8a1a/32.png) [@Eve](https://boards.straightdope.com/u/Eve)\ **Post date:** [June 26, 2002, 7:38pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/4 "2002-06-26T19:38:37Z")
Does it really matter? Ted Bundy was only convicted of two of the many, many murders he committed. If they’d tried him for _all_ of them, he’d _still_ be in court. I mean, convicted is convicted. ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [June 26, 2002, 7:43pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/5 "2002-06-26T19:43:29Z")
In the recently concluded Joseph Gray trial (the cop who, while drunk, ran down a pregnant woman, her son and her sister), he was charged with four counts. However, under New York law, because it was one action, the sentences must run concurrently. I would imagine the same would apply here. Since he killed the woman and the unborn baby with the same action, any sentences would have to run concurrently, if convicted. As for the death penalty, he could have gotten that for just one count of 1DM anyway. I know it doesn’t really address the OP, but the end result will be the same. Zev Steinhardt ---
**Author:** ![WV\_Woman](https://avatars.discourse-cdn.com/v4/letter/w/e95f7d/32.png) [@WV\_Woman](https://boards.straightdope.com/u/WV_Woman)\ **Post date:** [June 27, 2002, 3:57am UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/6 "2002-06-27T03:57:57Z")
For starters, I think the SOB should fry for all 3 murders. That said, wouldn’t be kinda well, ironic? If this woman were still alive, in some states she would have the right to go pay an abortionist to kill her baby, up till the day of birth. Yet we’re gonna charge him for the murder of somebody who, unfortunately, isn’t even considered a person yet, never mind that he/she could live outside of Mom’s womb now? Don’t get me wrong, I’d love to see it happen. I just doubt it will. ---
**Author:** ![Gaudere](https://avatars.discourse-cdn.com/v4/letter/g/e495f1/32.png) [@Gaudere](https://boards.straightdope.com/u/Gaudere)\ **Post date:** [June 27, 2002, 5:53am UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/7 "2002-06-27T05:53:49Z")
> [@](#): > > If this woman were still alive, in some states she would have the right to go pay an abortionist to kill her baby, up till the day of birth. Yet we’re gonna charge him for the murder of somebody who, unfortunately, isn’t even considered a person yet, never mind that he/she could live outside of Mom’s womb now? As far as I know, no state allows eight month abortions (let alone the nine-month abortions you imply) without a doctor determining that not aborting the fetus would be a threat to the mother’s health. Valuing the mother’s life over that of the fetus is not the same as saying the fetus has no value, or even that the fetus is not a person. Even those who firmly believe the fetus is a person generally allow abortion if the mother is in danger. ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 27, 2002, 6:48am UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/8 "2002-06-27T06:48:13Z")
> [@](#): > > \*Originally posted by Gaudere \* > \*\*As far as I know, no state allows eight month abortions (let alone the nine-month abortions you imply) without a doctor determining that not aborting the fetus would be a threat to the mother’s health. \*\* In a sense, that’s true. However, the landmark [_Doe vs Bolton_](http://www.roevwade.org/aod.html) case defined “health” in such broad terms as to encompass even the mother’s emotional and familial state. As a result, abortion is effectively available on demand in all states except Missouri and Pennsylvania. ---
**Author:** ![Rocza](https://avatars.discourse-cdn.com/v4/letter/r/ce7236/32.png) [@Rocza](https://boards.straightdope.com/u/Rocza)\ **Post date:** [June 27, 2002, 7:15am UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/9 "2002-06-27T07:15:26Z")
> [@](#): > > \*Originally posted by JThunder \* > \*\* > In a sense, that’s true. However, the landmark [_Doe vs Bolton_](http://www.roevwade.org/aod.html) case defined “health” in such broad terms as to encompass even the mother’s emotional and familial state. As a result, abortion is effectively available on demand in all states except Missouri and Pennsylvania. \*\* Are you saying that any of those factors are \*not \* relevant in deciding the health of any person? The doctor still has to decide that the abortion is in the best interest of the woman’s health so I think the burden of proof is on you to substantiate the claim that “abortion is effectively available on demand”. Also what do you propose? A tightening of the restriction? Or the courts overriding a doctor? ---
**Author:** ![Glamour\_Girl](https://avatars.discourse-cdn.com/v4/letter/g/e5b9ba/32.png) [@Glamour\_Girl](https://boards.straightdope.com/u/Glamour_Girl)\ **Post date:** [June 27, 2002, 1:04pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/10 "2002-06-27T13:04:16Z")
In terms of the legality of the deal: I had once seen on tv the story of a road rage case, where woman A did a brake job on woman B behind her (who had pissed off woman A by cutting her off). Woman B ran off the road, hit a parked truck I believe and had a miscarriage. Woman A was then charged with manslaughter of the fetus. ---
**Author:** ![JohnBckWLD](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JohnBckWLD](https://boards.straightdope.com/u/JohnBckWLD)\ **Post date:** [June 28, 2002, 2:19pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/11 "2002-06-28T14:19:45Z")
> [@](#): > > \*Originally posted by Glamour Girl \* > \*\*In terms of the legality of the deal: > I had once seen on tv the story of a road rage case, where woman A did a brake job on woman B behind her (who had pissed off woman A by cutting her off). Woman B ran off the road, hit a parked truck I believe and had a miscarriage. Woman A was then charged with manslaughter of the fetus. \*\* If memory serves me, that sounds alot like the Sitton case in Mississippi back in the late 90’s. The state court threw out the appeal of Woman A who challenged the conviction on grounds the prosecution used pictures of the dead, miscarried fetus. ---
**Author:** ![Snickers](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@Snickers](https://boards.straightdope.com/u/Snickers)\ **Post date:** [June 28, 2002, 6:02pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/12 "2002-06-28T18:02:01Z")
What about Sharon Tate? I know it was some time ago, pre-Roe v. Wade, but the Manson gang ripped her unborn child from her womb. I don’t remember how far along she was, the specifics of the case, or charges, but were charges for the unborn baby brought against any Manson family members? For debate, if they weren’t, should they have been? If yes, how far along does a woman have to be until killing her will draw 2 murder charges? I’ve been reading most of the abortion debates here with great interest, and it’s been interesting. However, I don’t think the murderer mentioned in the OP should be indicted for an extra murder count - while the baby definitely was a baby, I don’t view it as a person with full rights. Why? Because it’s not autonomous, not its own separate unit yet, as it were. I don’t believe we should be proscribing rights to the unborn, because I just see it as a slippery slope leading down a path I don’t want to travel. Snicks ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 28, 2002, 6:14pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/13 "2002-06-28T18:14:24Z")
> [@](#): > > \*Originally posted by Rocza \* > \*\*Are you saying that any of those factors are \*not \* relevant in deciding the health of any person? \*\* I’m saying that if we define “health” to encompass one’s emotional state and family relationships, then abortion is _effectively_ available on demand throughout all nine months of pregnancy. As the link I provided says, that definition is so broad that one would have no solid grounds for claiming that an abortion is _not_ performed for “health” reasons. Face it. When we think of health, we normally think of the person’s physical well-being. We do not normally consider someone to be unhealthy, simply by virtue of that person being sad. Under the broad definition adopted by _Doe v. Bolton_ though, one would have to consider that person’s health to have been compromised… thereby allowing a parent to claim that the abortion was done for “health” reasons. ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 28, 2002, 6:29pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/14 "2002-06-28T18:29:30Z")
> [@](#): > > \*Originally posted by Rocza \* > \*\*The doctor still has to decide that the abortion is in the best interest of the woman’s health so I think the burden of proof is on you to substantiate the claim that “abortion is effectively available on demand”. \*\* The link which I provided already cited several published legal opinions on that matter. In the absence of any direct and contrary evidence over the past 30+ years (e.g. any abortion requests which were denied because the “health” clause could not be justified), I’d say that evidence is more than ample. ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 28, 2002, 6:36pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/15 "2002-06-28T18:36:49Z")
BTW, if you want further proof, consider that the Senate Judiciary Committee itself said that “no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy,” as quoted in the link I provided. That’s about as authoritative as one can get, short of a formal Supreme Court ruling (which is what _Doe v. Bolton_ was). In that light, I’d say that the burden of proof rests on those who claim that abortion is NOT effectively available on demand. ---
**Author:** ![Rocza](https://avatars.discourse-cdn.com/v4/letter/r/ce7236/32.png) [@Rocza](https://boards.straightdope.com/u/Rocza)\ **Post date:** [June 28, 2002, 9:07pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/16 "2002-06-28T21:07:32Z")
> [@](#): > > \*Originally posted by JThunder \* > \*\* > As the link I provided says, that definition is so broad that one would have no solid grounds for claiming that an abortion is _not_ performed for “health” reasons. > > Face it. When we think of health, we normally think of the person’s physical well-being. We do not normally consider someone to be unhealthy, simply by virtue of that person being sad. Under the broad definition adopted by _Doe v. Bolton_ though, one would have to consider that person’s health to have been compromised… thereby allowing a parent to claim that the abortion was done for “health” reasons. \*\* I’m going to reply to your three replies in one 🙂 . The link you provided was to a pro-life site which provided nothing to back up its assertion. I thought in GD if someone asserted something then they should be the ones to back it up. Why someone being “sad” is not usually viewed as unhealthy, being suicidal, clinically depressed, psychotic or other forms of mental illness are usually considered as “unhealthy”. The age of a woman in pregnancy is also commonly used as one factor in determining a high risk pregnancy. > [@](#): > > The link which I provided already cited several published legal opinions on that matter. In the absence of any direct and contrary evidence over the past 30+ years (e.g. any abortion requests which were denied because the “health” clause could not be justified), I’d say that evidence is more than ample. Again the site you linked to didn’t provide any evidence whatsoever that a pregnant woman in her 8th month go to a doctor and ask for an abortion without a compelling reason. It _asserts_ it but doesn’t prove it. It also uses the _number_ of late-term abortions as a reason to back up its assertion without describing the reasons. I could use that to say that the number of amputations in the US shows that people don’t want use of their limbs. In other words, the incidence says nothing about the reasons. It says even less about any women who have had their requests denied. > [@](#): > > BTW, if you want further proof, consider that the Senate Judiciary Committee itself said that “no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy,” as quoted in the link I provided. That’s about as authoritative as one can get, short of a formal Supreme Court ruling (which is what Doe v. Bolton was). In that light, I’d say that the burden of proof rests on those who claim that abortion is NOT effectively available on demand. I’m glad that we agree that there are no significant “legal” barriers to abortion during any point of the pregnancy. I would not want a bunch of lawyers deciding whether or not an abortion should be allowed or how sick a woman should be before she is allowed to have one. A doctor is the only one qualified to make _medical_ decisions. I am not and have not asserted that there is a legal barrier to abortion. I am well aware that there is no legal barrier as the courts have rightfully decided that they are not the ones who can determine whether a person’s health justifies an abortion or not. And they have also stated that a woman’s risk of death cannot and should not be the only risk factor. Her emotional health, age and risk of long-term harm are also factors. And that is what _Doe v. Bolton_ said. However, _you_ have equated no legal barrier with _no barrier at all_ in direct response to Gaudere stating that late term abortions are only carried out if a doctor determines that _not aborting_ is a threat to the mother’s life. \* Doe v. Bolton\* only talks about the legal barrier and says that all aspects of a woman’s health should be considered. If you are really saying that a woman can get an abortion in her 8th month without being “unhealthy” or that her doctor will just agree that she is unhealthy then you need to back _that_ up. So find a state which allows an eight or nine month abortion without requiring a doctors approval and you will have proven your case. If not, then please explain to me (as I asked before) why you think that the _courts_ should override a doctor? ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 28, 2002, 9:24pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/17 "2002-06-28T21:24:26Z")
> [@](#): > > \*Originally posted by Rocza \* > \*\*The link you provided was to a pro-life site which provided nothing to back up its assertion. \*\* I can’t believe you said that. It cited statements from legal publications AND the judgment of the Senate Judiciary Committee – one of the highest authorities in the land. By what stretch of the imagination can we call this “nothing”? ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [June 28, 2002, 9:59pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/18 "2002-06-28T21:59:31Z")
**Rocza** , your objections are simply unfounded. The article I cited doesn’t merely “assert” that abortion is effectively available on demand throughout the nine months of pregnancy. Rather, it substantiates that claim through published legal opinions and the judgment of an officially designated Senate body. If you’re going to claim other wise, it seems to me that you should be the one providing contrary evidence. Now you go on by saying that only a doctor should judge such matters, and so forth, and so on. That issue is worthy of discussion, but i **it is not the matter under debate**. Nor is the matter of whether the current laws are reasonable or not. Rather the question of whether abortion on demand was available throughout pregnancy, and the answer is YES. As I said, you can claim that doctors should not be restricted by the “health” clause, but that is not the subject under debate. Nor is your statement that abortions are only performed with a doctor’s approval. Nobody contests that claim either, _and it is absolutely irrelevant to the question of whether abortion is available on demand throughout all nine months_. Besides, maybe it’s just me, but I don’t think that emotional impact alone is a sufficient **health** hazard, and neither are family relationships _per se_. I agree with the U.S. Senate – such a definition of health impact is so broad as to be virtually meaningless. ---
**Author:** ![JohnBckWLD](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JohnBckWLD](https://boards.straightdope.com/u/JohnBckWLD)\ **Post date:** [June 28, 2002, 10:50pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/19 "2002-06-28T22:50:46Z")
> [@](#): > > \*Originally posted by Snickers \* > **What about Sharon Tate?..were charges for the unborn baby brought against any Manson family members?..** There were 7 counts brought against Charlie & the Family, 5 adults at Tate, 2 at LaBianca > [@](#): > > \*Originally posted by Snickers \* > **…I don’t think the murderer mentioned in the OP should be indicted for an extra murder count - while the baby definitely was a baby, I don’t view it as a person with full rights. Why? Because it’s not autonomous, not its own separate unit yet, as it were. I don’t believe we should be proscribing rights to the unborn, because I just see it as a slippery slope leading down a path I don’t want to travel.** Granted, it’s all opinion. I can’t state with full conviction one way or the other. However, I don’t think I’d use the it’s\*“not autonomous, not its own separate unit”\* argument. If you carry that logic one step further, you could almost make a case for extermination of the severely retarded, terminally ill and elderly followed by a rationalization of eugenics. ---
**Author:** ![JohnBckWLD](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JohnBckWLD](https://boards.straightdope.com/u/JohnBckWLD)\ **Post date:** [June 28, 2002, 10:53pm UTC](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084/20 "2002-06-28T22:53:17Z")
> [@](#): > > \*Originally posted by JThunder \* > Besides, maybe it’s just me, but I don’t think that emotional impact alone is a sufficient **health** hazard, and neither are family relationships _per se_. I agree with the U.S. Senate – such a definition of health impact is so broad as to be virtually meaningless. \*\* What about swollen ankles or hemoroids? :rolleyes: [Next page](https://boards.straightdope.com/t/pro-choice-pro-life-are-3-counts-of-1st-degree-murder-whats-needed-here/116084.md?page=2)