mr. paige: Does the California law prosecute the unwanted abortion of a fetus as a homicide? I'm not familiar with the statute. If it doesn't prosecute it as homicide, this is a non-starter. If it does, I truly do not know what the fuss is about or why they wouldn't just do what they normally do. But there is a fuss (as there was in Congress), so I'd guess there's a difference. Can anyone clear this up?
As far as I know, the law is a fetal murder statute, meaning that it has to rise to the level of murder first and foremost. There is no fetal manslaughter law. So say for example, that a person is involved in a car accident that ends up killing the fetus of a person who was not at fault in the accident. The person who was at fault in the accident could not be charged under the fetal murder law because, although his actions resulted in the "death" of the fetus, it was not murder. There's also a requirement that the accused have known (or should have reasonably known) that the woman was pregnant. And the unborn has to be a "fetus", which means certain developmental milestones have been reached - apparently between roughly 8 to 12 weeks into a pregnancy. The law is narrowly written and specifically excludes legal abortions, requires a third party to have caused the "death" and requires the crime to have risen to the level of murder. It was passed by the California Legislature in 1970, as is my understanding, and has been to the California Supreme Court several times only to be affirmed. It is my understanding that there is a case at the Court now regarding the law. We may very well see a change in the law because of that, but the history of the law doesn't seem to support that notion.
http://caselaw.lp.findlaw.com/cacodes/pen/187-199.html 187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply: (1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code. (2) The act was committed by a holder of a physician's and surgeon' s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus. (c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.
Can anyone explain what MIGHT be the cause for controversy? I'm not a lawyer (obviously), but I'd guess that the cause for alarm among pro-choice people is that charging with double homicide raises the legal definition of the fetus to a "person," while the CA statute specifically delineates between the two (mentioning a person OR a fetus). But again, I'm not qualified to clarify. Can anyone else do that, preferably free of spin? Like, this side's argument is this and that side's is that?
My arugment is that it's inconsistent. That ultimately law is driven by society's values. In one instance, we're saying that an unborn child is a life worth protecting...worth prosecuting someone to protect. In another instance we're saying either: 1. it's not living; or 2. it is living but it's ok if mom kills it. I personally don't find either response tenable. The argument from the other side...as I understand it...is that these sorts of statutes gradually erode away at the right of a mother to choose. They too recognize the inconsistency of calling it life in one instance and not life in another. So they're saying that these laws run contrary to what the Supreme Court said in Roe v. Wade.
Thanks, Max. My response to your position (and I really am a moderate on this issue at least, with a lean towards the choice side) would be that the choice side recognizes a fetus as a potential life and, as such, would support a law against aborting it against the mother's will. I think the choice side would define a fetus as not yet a living human being, but still something worthy of protecting.
Hey, Batman, I would be curious to know how you define the moderate position (even leftward-leaning) on abortion.... really, I'm curious.
giddyup: I don't think I'm really gonna give you what you're looking for. Ultimately I'm pretty much pro-choice all the way. A common definition of a moderate leaning left here would probably be someone who only believes in choice in certain situations, is maybe against govt funding for it, maybe believes it should only be legal very, very early in the pregnancy, maybe only in cases of rape or incest. That's not me. When I call myself moderate here, I'm not talking equivocation. Ultimately, I come down pro-choice in almost all instances (excepting late term in most cases and partial birth in all). What I mean when I call myself moderate here is that I absolutely see both sides, think neither is wrong and both are right. And also that both are wrong and neither is right. I find it almost as easy to defend the pro-life position as I do the pro-choice one. It is the political issue on which I am most conflicted. As such, I really only get puffed up about it when confronted by absolutists (on either side). I also am not so sure of myself that I think I can say when life "begins." I think valid arguments can be made to favor either position and ultimately I do not know which is correct, nor would my position be changed by feeling more sure one way or the other on this. I comfort myself (ever so slightly) with the idea that an aborted fetus (or baby, whichever you want to call it) would not know what was happening. Doesn't make it that much more comfortable for me, though. I hate that abortions occur in any instance. The only thing I find less okay than an abortion is forcing a woman to carry an unwanted fetus to term. I'm not going to have that debate here again though, so please don't bait me on it. You can find everything I have to say on this in other threads. I will say this, though. If I were to change anything, it would be to do every possible thing short of threatening imprisonment to reduce the number of abortions in this country. I'd increase education (especially to children -- as distasteful as this may seem to many, it's better than the alternative) and encourage distribution of condoms wherever possible. I find it especially troubling when people who would like to ban abortion also oppose encouraging safe sex. Preaching abstinence will not solve or reduce this problem, no matter how much anyone might like to think it will. I guess that's all I've got on this today. And I hope you know that I completely respect your opinion (which I know is very different from mine) and find it to be completely valid, even if I don't always like the way you express it. Anyway. Hope that answered your question. Peace.
Yes, thanks for the thoughtful reply. I didn't know we felt so similarly about some but not all aspects of this issue. I guess I'm a moderate too!
http://www.bayarea.com/mld/mercurynews/news/local/5687741.htm In slaying of fetus, precedent for penalty By Howard Mintz Mercury News As prosecutors push forward with murder charges against Scott Peterson, they can rely on grisly precedent in California cases involving the killing of a fetus, including one of the most notorious and gruesome crimes in recent San Jose history. In fact, the case of condemned Santa Clara County killer William Michael Dennis, who was sent to death row for the 1984 Halloween slayings of his former wife and her unborn child, helped make the death penalty a possibility for Peterson. The California Supreme Court in 1998 approved the death penalty for Dennis, finding that the killing of a fetus qualifies under the ``multiple murder'' special circumstance that can trigger a death sentence. Prosecutors have charged Peterson with that circumstance in connection with the killing of Laci Peterson and her 8-month-old fetus. Stanislaus County District Attorney Jim Brazelton has hinted his office will pursue a death sentence, but he said he would probably decide before a hearing May 19. Since 1970, California law has held that killing an unborn child can be charged as murder. Over the past few decades, the California Supreme Court has upheld such prosecutions, finding in a major ruling in 1994 that a defendant can be charged with murdering a fetus regardless of whether the unborn child is old enough to survive outside the womb. . . . Evolving law The law on the subject is evolving. In February, the state Supreme Court agreed to review a fetal murder case out of Mendocino County, where a defendant is appealing his conviction for murdering a woman and her unborn child. The Supreme Court is considering whether a defendant can be convicted of killing a fetus if he doesn't know the expectant mother is pregnant, an issue that would not be raised in the Peterson case. California is one of roughly two dozen states that have fetal murder laws on the books. Overall, however, there is little left for defense lawyers to contest in the area of fetal murders in California. ``It's not even an open question,'' said Peter Keane, dean of Golden Gate University School of Law. ``The California Supreme Court says it's constitutional.'' . . .
