I could be wrong, as IANAL, but in some states isn’t it considered a double-murder if you kill a pregnant woman? I’m pretty sure that’s true in a few of the reddest states. I seem to recall a recent case (was it real, or did I see it in a TV drama?) where a murdered woman was being checked for pregnancy to determine how many homocides were involved in the case.
Not murder. If the woman is still alive, then no murder has taken place.
I know that it may seem callous to some people, but my feeling is that until that baby is born, it’s not a person. Therefore, an assault on a pregnant woman that results in miscarriage of the fetus and doesn’t result in the woman’s death is assault, and whatever other criminal infractions that can be slapped on the perpetrator.
Yes, it’s awful. Yes, it’s a very cruel thing to do. But it’s not murder, any more than an assault causing someone to lose a limb or an eye, or to sustain brain damage.
I feel that many people get too emotionally caught up in the issue, projecting lives, personalities, or accomplishments onto an unborn child. To me, it’s a blank slate, and until after it’s born and is socialized, it’s no more unique or special than an internal organ. And if someone has made the decision that they are not ready/willing/whatever to spend 9 months having their body taken over by a growing organism, and then the next couple of decades devoted to raising it and making it self sufficient, then I feel that people should respect that decision as it has absolutely nothing to do with anyone else.
This is actually a bit timely. There is currently a case of a woman murdering a woman and cutting her fetus out to claim as her own. While she is already under indictment for the murder of the mother, they are still trying to determine if the baby ever drew a breath or died when being removed from the womb.
Not necessarily. A woman can engage in activites known to cause miscarriage, in which case, we ought not hold God responsible.
That’s why I say “death of fetus = murder” is a very tricky definition, because any time any being (from zygote on up) fails to live until birth, you’ve got to send it to the DA’s office. That’s bad juju all around.
Regarding that Mississippi statute, I would read that to say that if a woman drinks to excess and that ends up causing a miscarriage, she could be found guilty of murder under the “poisoning with intent to kill or injure”, or at least manslaughter or deranged indifference, if she wasn’t intending to do harm. That would count even if she didn’t know she was pregnant, since it covers every stage from conception onward.
In fact, smoking or drinking while pregnant, given all the warning labels, seems like a clear case of “intent to injure” and any babies that are born with smoking- or alcohol-related problems should be clear evidence.
Have women been prosecuted under this statute?
I’m not entirely sure I’m pro-choice enough to be desired in this conversation.
But to me, if you knew the woman was pregnant or should have known she was pregnant (far enough along to be obviously pregnant to most people, or in a relationship with the woman such that you would/should have been aware of the pregnancy), it is appropriate to charge you with murdering the fetus.
Viability of the fetus does not matter to me because it makes too much of a slippery slope or a moving goalpost. Preemies are routinely saved today and expected to live normal lives who would not have survived forty years ago–and who knows what technology will come along in the future? It’s also sticky if it gives our hypothetical idiot brute boyfriend/husband a motivation to commit the assault sooner rather than later in the pregnancy so that he’s punished only for assualt on the woman and not for murder of the fetus.
And I’m deeply uncomfortable with any “what if she’s on the way to the abortion clinic” loophole scenarios. After the fact, the fact that she was pregnant and that her assailant was or should have been aware of it either is sufficient to charge the assailant with murder or it isn’t. Let’s not start trying to peer into the brain of a grieving could have been mother trying to define what constitutes a truly heinous crime and what constitutes only a mostly heinous crime.
And yet, that seems to be exactly what that Mississippi statute would require.
I don’t know, but I doubt it. This statute seems to contemplate a third party injuring the pregnant woman rather than self-inflicted injuries. Otherwise, a pregnant woman that attempted suicide could also be charged…
My wife was recently involved in a nasty car accident. As a direct result, she went into labor and delivered a mostly healthy baby a few hours later.
If the fetus had died in the accident, or if there were a second accident that killed the baby a week later, the end result would have been the same: no more baby.
We could argue about grey areas involving zygotes and embryos, but the death of a viable, wanted fetus is equal to the death of a newborn. Assaulting to death a viable, wanted fetus is no less a crime than slaughtering an infant in the crib.
I do actually think that a fetus should be considered a person at some point before birth, and that abortion after that point should be prohibited. However, I also think that the law should be consistent, even if I don’t agree with it. If the state of the law is such that a fetus is not considered a person, then the killing of that fetus should not be legally regarded as murder. It might, however, reasonably be considered to be its own crime (call it “involuntary abortion” if you like).
Perhaps we could refine the hypothetical. Jane Junknuts, tragically infertile and tragically sociopathic, wants a baby badly enough to kidnap a very pregnant Nancy Nockedup, and she cuts the unborn fetus out of Nancy’s body, unfortunately killing the unborn fetus in the process because she’s a lunatic and not a surgeon. Nancy survives the attack.
Should the state be able to charge Jane with murder?
(As gruesome as it is, please not this hypo, or fact situations close to it, are not unheard of in real life. Sadly.)
Yes, at least one has in South Carolina. Link. Convicted and sentenced 12 years.
ETA: The article mentions that the conviction was appealed at the Supreme Court. I don’t know the results.
I was thinking more of Jack SpermSpewer, actually. A few months ago he took hsi girlfriend, Jill BadJudgeofCharacter, up a hill to fetch a pail of water, and she came down both a pail in her hand and a bunin the over. Jack does not intend to marry Jill because he still has wild oats to sow and giants to slay. When she informs him that he’ll still have to pay child support, he cold-cocks her and and kicks her in the belly, hoping to cause a miscarriage. Jill survives; the fetus does not.
Or it could be Jim Crackhead. He lives in the alternate universe in which Jack is not a jackass and stands by the pregnant Jill. One day, J & J are grocery shopping when Jim, who needs money for a fix, comes across them and mugs them; he’s jittery and shoots Jill in the stomach. She survives but the fetus does not.
No, it’s another example of an unnecessary law. It’s already illegal to assault anybody, male or female, from knocked-up to completely infertile.
The fetus is still dead and mom’s still been assaulted.
No one questions the wisdom of a law against assault, or the fact that in my hypo, an assault charge would apply. The question is whether those facts support the existence of a separate crime, apart from the assault.
Sure, your first hypo works just fine for this discussion. Your second not so much, because there was no specific intent to harm the unborn child, although we could certainly discuss whether the felony murder rule should apply. If Jim’s bullet had killed Jill, he’d clearly be liable for murder.
I brought the second hypoethetical up with the felony murder rule in mind.
My position on the OP is that if the mother can knowingly terminate the life of the fetus without it being murder, then it’s not murder when somebody else does it, either. So, if discretional abortions are legal, then murder charges cannot be brought.
If the law said that all discretional abortions were illegal, then killing a fetus might be murder. If the law set a specific time after which discretional abortions were illegal, then after that point it might be murder, but not before. And where discretional abortions are legal until birth, then it logically cannot be murder to kill a fetus.
Instead of murder I would treat the crime as what it is - if the fetus is not a person, it is an appendage of the woman. Possibly a valued appendage. What do we do to people who chop off a woman’s arm? Try them for that.
FWIW here is a famous case where someone was convicted both for the murder of the mother and the murder of her unborn child.
EDIT: I am puzzled how the fetus merits only second degree murder here. Peterson well knew his wife was pregnant…very pregnant at that. Not that it matters much as the conviction merited him the death penalty anyway.
How about if it is late enough in the pregnancy for Jill to be obviously pregnant, and Jim shoots her in the stomach? That seems to me to be getting closer to intent to harm the fetus…
Interesting especially because this was in California. I take back my previous comment that this was the case in “the reddest states,” as CA ain’t all that red.
Quoth Chopper9760:
On the other hand, rape is a kind of assault, too, but we still consider it appropriate to have separate laws against rape, since it’s considered a particularly heinous form of assault. I think it’s quite reasonable to consider feticide to likewise be a particularly heinous form of assault, with separate and more severe penalties from simple assault.