[Logic]

US foetus law sparks abortion row

I'm amazed. I like this law, and I'm glad to see something done about this.

to the republicans and W.

[Spliffdaddy]

So it's murder to kill a fetus?

What if the mother had scheduled an abortion for next week?

hmmm

[Nicko]

What is it with americans and their obsession with abortion?

[ladybird]

Originally posted by Nicko:
What is it with americans and their obsession with abortion?

And the war??? its deaths???
Indeed, the obession of the abortion..

[Millennium]

Frankly, both sides are right about this. When an unborn child (presumably, a wanted one) is harmed in a violent atttack, the loss does tend to cause as much pain to its family as the loss of any member. However, as others have noted, it's also the first step on a slippery slope. It is, however, unusual (not unheard of, but unusual) to see Democrats resorting to incrementalism; normally that style of argument is reserved for Republicans.

By the way, as for the American obsession over abortion, the basic idea is that there's a large section of Americans who consider a fetus to be a living human being, and therefore believe that it ought to have the same rights as a human. The second follows logically enough from the first; it's that first one that's really at the core of the whole debate. Many of them believe this for religious reasons. Some, such as myself, have others; a few, such as myself, even try to justify it scientifically.

[SimeyTheLimey]

I'm not sure why any federal statute is required here. But also, those who think there is something radical here are wrong. Criminal law is generally a state law issue. State law already makes deliberately killing an unborn fetus murder. For example, here is California's statute:

(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.

Cal. Penal Code S. 187.

This statute was enacted in 1872, and was last amended in 1996. It basically follows the common law, which regards viable fetuses as persons from the point of view of criminal law. It also allows recovery in civil cases. So if you negligently cause the death of a fetus, you can be held liable for the wrongful death. This is a common law issue, so there is a good chance that the rule is the same in the UK and any other common law jurisdiction -- e.g. Canada, or Australia.

Notice also that the statute excludes legal abortions. That's unnecessary because abortions performed according to the law are not illegal (by definition), but it's common in these statutes. Just the other day I was looking at Texas' wrongful death statute. It had the same language about fetuses and exeptions for abortion.

The only thing going on here that I can tell is that federal law is being brought into line with state law. The federal murder statute defines murder as:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

50 U.S.C. S. 1111.

However, I think the case law would universally define "human being" as including an unborn child, but it is hard to find cases because the federal government doesn't prosecute murder much, it's generally charged under state law.

So there isn't much of an issue here at all. Why wasn't that in the article?

[phoenixboy]

Originally posted by SimeyTheLimey:
So there isn't much of an issue here at all. Why wasn't that in the article?

yeah, i don't get it either. what does this have to do with abortion? they are two completely different issues.

i doubt that "abortion" is ever going to be explicitly "illegal" again.

[voodoo]

$#"&%# Internet Exploder on this %$"%"% Wintel ate my post!

[BRussell]

I looked up the bill here (I assume this is the same one that just passed, but I'm not positive about that), and saw this:

`(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided for that conduct under Federal law had that injury or death occurred to the unborn child's mother.

`(B) An offense under this section does not require proof that--

`(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or

`(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.

That's a little odd. You don't have to prove intent to be found guilty of murder? Isn't that making the life of the baby even more valuable than the life of a person, given that you do usually have to prove intent when you kill a person? You wouldn't even have to know the woman is pregnant. For that matter, the woman herself doesn't even need to know that she's pregnant. This bill says "any stage of development." So some guy gets in a fight with his wife, neither of them knows she's pregnant, but a doctor later determines an abortion occurred (as happens in most pregnancies), and now the guy is up for murder. Sounds pretty bad to me.

I suppose it's like felony murder - maybe that's what they're modeling this on. But I don't know what all those subsection numbers are, other than that there are lots of them, that count as permitting this law to be used. Jaywalking? Shoplifting?

Anyway I think they could have made the penalty harsher for killing a pregnant woman without introducing legal "personhood" to the baby.

[Spliffdaddy]

nah.

What we really want is to get it in everyone's heads that a fetus *is* a person - even though its mother has the legal authority to kill it.

[SimeyTheLimey]

Originally posted by BRussell:
That's a little odd. You don't have to prove intent to be found guilty of murder?

I don't read it quite that way. Suppose I get a machine gun and spray a crowd of people with bullets, killing 43 people. The prosecution wouldn't have to show specific intent to kill each of the 43 people I killed to charge me with each of their murders. I could have only intended to kill one, or a hundred, or even none.* It wouldn't matter. The act of shooting and killing is enough to show intent, and each victim is a separate count.

All that the portion of the statute does, I think, is to apply the same principle. If you so beat a woman or commit violence against here that you kill her unborn child, then you don't have to prove specific intent to murder the child individually.

But as I said above, I don't think this bill would really do much in the real world. The federal government rarely prosecutes for murder. It's a state matter.



* in lots of cases, the intent to do something other than kill that leads to death can be murder. So, for example (off the top of my head), the killers of Matthew Shepard didn't plan to kill him, only give him a ferocious beating. But it was so ferocious and so obviously likely to result in death, and so deliberate a beating, that the killing can't be said to be accidental. So it's murder. Had Shepard been a pregnant woman, they would face two murder charges in most, if not all, states.

[voodoo]

Originally posted by Spliffdaddy:
nah.

What we really want is to get it in everyone's heads that a fetus *is* a person - even though its mother has the legal authority to kill it.

Ignorance is bliss.

Fetus is not a person. It has the potential to become one.

Blastula is not a person. Zygote is not a person. Gastrula is not a person.

It is absurd.

[benb]

Originally posted by Nicko:
What is it with americans and their obsession with abortion?

What is it with people and stereotypes?

You are in Nigeria? What is is with Nigerians and their obsession with scam emails?

[Millennium]

Originally posted by voodoo:
Blastula is not a person. Zygote is not a person. Gastrula is not a person.

By what reasoning? Furthermore, then, what is the magic line crossed from non-person to person?

From what I have seen, the only consistently-applied scientific definition for a human being is genetic: if a being falls within an acceptable range of parameters, it is considered to be a human being. Even a zygote manages to pass that test, but I have yet to find any other truly rigorous test. How, then, is religion even necessary to show beyond doubt the personhood of a fetus?

[Lerkfish]

IMHO, even if the intent of this law is for the legitimate legal reasons Simey suggests, I'm just as apprehensive that it will be used instead as the wrong tool for the right job for the anti-abortionists to further restrict choice.

[SimeyTheLimey]

Originally posted by Lerkfish:
IMHO, even if the intent of this law is for the legitimate legal reasons Simey suggests, I'm just as apprehensive that it will be used instead as the wrong tool for the right job for the anti-abortionists to further restrict choice.

Actually, I don't think they can. I took a quick look (and I do mean quick) at the case law this morning. It seems the Supreme Court dealt with that issue about 30 years ago apart from Roe itself. Abortion is constitutional (within the limits the Court has set out) and it doesn't stop being constitutional because the legislature tries to redefine it as murder. The courts are quite capable of distinguishing between theraputic abortion by a physician, and murder.

So I wouldn't worry. What they really are doing is passing pointless legislation that changes nothing legally (so far as I can tell) to amend a federal a statute that is hardly ever used, basically for political reasons. It's good press with the troops in an election year. But it's really nothing to worry about (if you are pro-choice) or crow about (if you are pro-life), because I don't think it really does anything much at all. . .

. . . except murder a couple of trees for no reason. It does do that.

[Shaddim]

Originally posted by Spliffdaddy:
nah.

What we really want is to get it in everyone's heads that a fetus *is* a person - even though its mother has the legal authority to kill it.

Exactly. Now, let's take this further... rugrats under the age of, say, 12 can't live on their own for long... can we legally just kill them too? I mean hell, they're dependant on their caregivers, can't reproduce yet, a potential burden on their parents, can potentially cause physical harm and trama. Overall, seems to fit within the same catagories.

[Shaddim]

Originally posted by voodoo:
Ignorance is bliss.

Fetus is not a person. It has the potential to become one.

Blastula is not a person. Zygote is not a person. Gastrula is not a person.

It is absurd.

Kids aren't "people" either, read my above post.

[Lerkfish]

Originally posted by MacNStein:
Exactly. Now, let's take this further... rugrats under the age of, say, 12 can't live on their own for long... can we legally just kill them too? I mean hell, they're dependant on their caregivers, can't reproduce yet, a potential burden on their parents, can potentially cause physical harm and trama. Overall, seems to fit within the same catagories.

ok, lets' take it further, let's say they're adults, living in Iraq or Palestine, can we legally kill them too? I mean hell....

[Shaddim]

Originally posted by Lerkfish:
ok, lets' take it further, let's say they're adults, living in Iraq or Palestine, can we legally kill them too? I mean hell....

Sure, if they're terrorists.

[BRussell]

Originally posted by SimeyTheLimey:
I don't read it quite that way. Suppose I get a machine gun and spray a crowd of people with bullets, killing 43 people. The prosecution wouldn't have to show specific intent to kill each of the 43 people I killed to charge me with each of their murders. I could have only intended to kill one, or a hundred, or even none.* It wouldn't matter. The act of shooting and killing is enough to show intent, and each victim is a separate count.

All that the portion of the statute does, I think, is to apply the same principle. If you so beat a woman or commit violence against here that you kill her unborn child, then you don't have to prove specific intent to murder the child individually.

But as I said above, I don't think this bill would really do much in the real world. The federal government rarely prosecutes for murder. It's a state matter.



* in lots of cases, the intent to do something other than kill that leads to death can be murder. So, for example (off the top of my head), the killers of Matthew Shepard didn't plan to kill him, only give him a ferocious beating. But it was so ferocious and so obviously likely to result in death, and so deliberate a beating, that the killing can't be said to be accidental. So it's murder. Had Shepard been a pregnant woman, they would face two murder charges in most, if not all, states.

I think you're diminishing the strict liability nature of this law. The examples you give are about unintended but foreseeable actions, like spraying bullets into a crowd or leaving someone beaten up in the cold. This law would apply if you don't even know the woman is pregnant, and even if she didn't know. You just have to assume that all women could be pregnant, I guess. In that way it's a very feminist kind of law, because you would have no such worry with a man.

I think you're right that this wouldn't have much effect because this is almost entirely a state issue, but that's why it's interesting - if it won't have a practical impact, why do it? The reason seems clear to me. It's to get the idea out there that unborn babies at any stage of pre-natal development, even a few days into the pregnancy, are persons with the same exact legal status as the mom. The fact that it's federal gives it even more punch, if that's the intent of the law, than it would be if it was a state.

I found this rundown of state laws. From what I can tell, 16 states have fetal homicide laws that cover the entire period of pre-natal development, and 13 have laws that apply after viability, or when even abortion would become more difficult. And many of those 29 don't call it murder, but manslaughter or some other lesser crime. I think that's totally appropriate, but different from this federal law.

[SimeyTheLimey]

Originally posted by BRussell:
I think you're diminishing the strict liability nature of this law. The examples you give are about unintended but foreseeable actions, like spraying bullets into a crowd or leaving someone beaten up in the cold. This law would apply if you don't even know the woman is pregnant, and even if she didn't know. You just have to assume that all women could be pregnant, I guess. In that way it's a very feminist kind of law, because you would have no such worry with a man.

I don't see that as a conflict. If you do something that is likely to kill a person, and in fact you do kill a person or persons, then you are liable for as many people as you kill, not how many you intended to kill, or thought you were going to kill. So (to take another example), if you poison the well of a house thinking that by doing so, you will only kill one occupant, but unbenownst to you, there are actually 2 occupants, then you still murdered the second occupant. Anything else would let you murder people and get off by simply saying "I didn't mean to kill X, I only meant to kill Y."

Of course, you still have to get past the threshold to get to murder at all. If you spray deadly weedkiller on fresh fruit, not meaning to kill anyone, but with enough recklessness to be manslaughter, then manslaughter is what you get. Or murder in the second degree, or whatever the state provides. Each state is different. The same could be the case with the killing of an unborn child. Or, as I pointed out, in I believe all states, killing an unborn fetus can be grounds for a civil suit for negligence.

This does, of course, expose a basic inconsistency in the law. The law in most jurisdictions regards an unborn child as a person, and for some purposes (for example, inheritance) in all jurisdictions an unborn child is regarded as a person. But for purposes of abortion, an unborn child is not regarded as being murdered. There is your basic inconsistency, but I don't know why you are upset about this one statute when there are whole bodies of law that express the same inconsistency.

As for whether this means in effect that the mother is worth more than a non-mother, that can't be true. It's not that she is worth two lives, it is that the law says that the mother and her child are two lives. If the baby is murdered, but the mother is not, it's one count of murder. If she is murdered, but the child survives (for example, she is kept on artificial support long enough to carry the baby to term for a C Section), then it is only one murder charge -- that of the mother. A life is still a life.

Part of the problem is that people overstate what the Supreme Court has said about abortion. The Court has never held that a fetus is just a lump of protoplasm. Even before the Court tightened the standard in Casey, the original Roe court always said that the state has an interest in protecting the life of the unborn child from conception. It's just that until a certain point in development, the state's interest is outweighed by the rights of the mother to abort. But if the mother's choice isn't at issue, because someone else comes in and beats the baby to death, then I see no reason why the state's interest can't come into play in full force. The state can take the same interest in valuing that unborn life by prosecuting for murder as that of any born human being.

[SimeyTheLimey]

Also: just to clarify, as I understand it, in order for this kind of statute to have effect, you would have to have federal criminal jurisdiction. The feds can't just waltz in to any case. The usual reason it happens is because the crime crosses state lines (that why many drug charges are federal), or because the act takes place on federal land. In this case, the main application would probably be in the federal parks, and there aren't that many murders in federal parks let alone murders where this statute would be of effect. The same issue arose with the issue of federal hate crimes. The application is actually very narrow. That's why I think it is mainly election year politics.

[BRussell]

I'm not saying there's a conflict, I'm just saying it's a damn strict law. In the examples you give, like poisoning a well to kill one person but also killing another person, you're still assuming an intent to murder. In this law, you might not have the intent to murder the mother, only injure her (or maybe less - I haven't looked up those other statutes that can invoke this one), but you could still be charged with murder. The only other case I can think of that matches this type of lack of intent is felony murder, where your intent is to rob a bank but some guy has a heart attack from the fear, and now you're charged with murder. So it's not unheard of, but it's pretty unique.

On your other points:

I don't think the personhood issue necessarily determines the abortion issue. Even if you're a person, you don't necessarily have the right to make someone else go through anything like pregnancy. I can't demand that someone else give me their appendix even if that appendix is necessary for me to live. That, to me, is analogous to abortion - the unborn baby doesn't have the right to make its mother go through a pregnancy if the mother doesn't want to go through it.

[edit]

As for whether this means in effect that the mother is worth more than a non-mother, that can't be true. It's not that she is worth two lives, it is that the law says that the mother and her child are two lives. If the baby is murdered, but the mother is not, it's one count of murder. If she is murdered, but the child survives (for example, she is kept on artificial support long enough to carry the baby to term for a C Section), then it is only one murder charge -- that of the mother. A life is still a life.

Not 'mother worth more than non-mother,' but 'woman worth more than man.' The way this law is written with its exclusion of intent means you have to be careful about hurting a woman, because you may be charged with murder if she's pregnant and loses the baby. This law would deter woman-hurting, just like felony murder laws are meant to deter felonies. That's OK, I guess, but it's just interesting to me that the pro-lifers are pushing for a feminist kind of law.

[SimeyTheLimey]

Originally posted by BRussell:
I can't demand that someone else give me their appendix even if that appendix is necessary for me to live.

What are you, a rabbit?

[voodoo]

Originally posted by SimeyTheLimey:
What are you, a rabbit?

mmm biology

[voodoo]

Originally posted by MacNStein:
Kids aren't "people" either, read my above post.

You don't understand developmental biology. Until you do, you aren't really qualified to talk about the crucial points in embryology. All you can do is blabber on about POVs that other people equally ignorant have cooked up for you. Your logic is incredibly flawed.

Sorry to pull a Simey on you but you really deserve one: Go to the library and educate yourself.

[voodoo]

Originally posted by Millennium:
By what reasoning? Furthermore, then, what is the magic line crossed from non-person to person?

From what I have seen, the only consistently-applied scientific definition for a human being is genetic: if a being falls within an acceptable range of parameters, it is considered to be a human being. Even a zygote manages to pass that test, but I have yet to find any other truly rigorous test. How, then, is religion even necessary to show beyond doubt the personhood of a fetus?

A drop of blood contains a myriad of cells that are undoubtedly human, with full DNA and what have you. That reasoning you are using is neither scientific nor logical.

[Zimphire]

Originally posted by voodoo:
Ignorance is bliss.

Fetus is not a person. It has the potential to become one.

Whatever makes you sleep better at night.

[voodoo]

Originally posted by Zimphire:
Whatever makes you sleep better at night.

I'm a biologist.

[Zimphire]

Binkey is a space clown.

[voodoo]

Originally posted by Zimphire:
Binkey is a space clown.

100% silly.

[lil'babykitten]

Originally posted by Logic:
US foetus law sparks abortion row

I'm amazed. I like this law, and I'm glad to see something done about this.

[SimeyTheLimey]

Originally posted by voodoo:
Sorry to pull a Simey on you but you really deserve one: Go to the library and educate yourself.

I hope you see why it gets frustrating sometimes. Just how many courses are you supposed to summarize to refute a layman's arguments? At what point is it permissible to simply say "for God's sake shut up and look at the diploma on the wall."



Life in the internet.

[Zimphire]

Originally posted by voodoo:
100% silly.

Exactly my point. You got it. Good.

[Zimphire]

Originally posted by SimeyTheLimey:
I hope you see why it gets frustrating sometimes. Just how many courses are you supposed to summarize to refute a layman's arguments? At what point is it permissible to simply say "for God's sake shut up and look at the diploma on the wall."



Life in the internet.

There are some things a Diploma on the wall cannot answer.

I believe this is one of them.

[voodoo]

Originally posted by SimeyTheLimey:
I hope you see why it gets frustrating sometimes. Just how many courses are you supposed to summarize to refute a layman's arguments? At what point is it permissible to simply say "for God's sake shut up and look at the diploma on the wall."



Life in the internet.

I see indeed

[voodoo]

Originally posted by Zimphire:
Exactly my point. You got it. Good.

I'm not here to change your mind, but I'll tell you one thing: You haven't got a clue what you are talking about regarding the human fetus it seems

[voodoo]

Originally posted by Zimphire:
There are some things a Diploma on the wall cannot answer.

I believe this is one of them.

This is not a faith question.

[BRussell]

Originally posted by voodoo:
You don't understand developmental biology. Until you do, you aren't really qualified to talk about the crucial points in embryology. All you can do is blabber on about POVs that other people equally ignorant have cooked up for you. Your logic is incredibly flawed.

Sorry to pull a Simey on you but you really deserve one: Go to the library and educate yourself.

Developmental biology doesn't answer the question of whether an unborn baby is a person - that's a legal construct, not a scientific one.

[Zimphire]

Originally posted by voodoo:
I'm not here to change your mind, but I'll tell you one thing: You haven't got a clue what you are talking about regarding the human fetus it seems

In other words, I don't make excuses for poor actions.

There are things that have to do with abortions that you can't learn in any "textbook" or claim to know just because you have a diploma.

100% Pretentious.

[Zimphire]

Originally posted by BRussell:
Developmental biology doesn't answer the question of whether an unborn baby is a person

And no diploma in the world can answer that.

We don't know. And until we do, we shouldn't be practicing it.

[BRussell]

Originally posted by Zimphire:
And no diploma in the world can answer that.

We don't know. And until we do, we shouldn't be practicing it.

Right. But I'm not sure if I'd say "we don't know" if an unborn baby is a person. It's not like there is an answer that will some day be discovered when the right experiment is done. It's not an empirical construct - that's the point I was trying to make.

And BTW voodoo, I think Macnstein was basically right, that there are increasing legal rights as one gets older throughout development, not just pre-natal. In most legal systems that I know about you can't vote, drink, drive, smoke, etc., until you're a certain age.

[voodoo]

Talk law, arbitrary rights, religion and whathaveyou regarding the human fetus, but saying

"But I'm not sure if I'd say "we don't know" if an unborn baby is a person. It's not like there is an answer that will some day be discovered when the right experiment is done. It's not an empirical construct - that's the point I was trying to make."

is just bull.

There you don't know what you are talking about it seems. You may feel one way or the other on the matter but you can't project your feelings on reality.

[voodoo]

Originally posted by Zimphire:
In other words, I don't make excuses for poor actions.

There are things that have to do with abortions that you can't learn in any "textbook" or claim to know just because you have a diploma.

100% Pretentious.

You are projecting.

[voodoo]

Originally posted by BRussell:
Developmental biology doesn't answer the question of whether an unborn baby is a person - that's a legal construct, not a scientific one.

Yes it does actually, but you wouldn't know

The legal construct has nothing to do with science or reality.

[voodoo]

Originally posted by BRussell:
In most legal systems that I know about you can't vote, drink, drive, smoke, etc., until you're a certain age.

All these 'rights' or privileges are arbitrary and even though they are similar in most nations they are not the same. 21 you can drink alcohol in some US states, 16 in Spain. Etc.

[BRussell]

Originally posted by voodoo:
Talk law, arbitrary rights, religion and whathaveyou regarding the human fetus, but saying

"But I'm not sure if I'd say "we don't know" if an unborn baby is a person. It's not like there is an answer that will some day be discovered when the right experiment is done. It's not an empirical construct - that's the point I was trying to make."

is just bull.

There you don't know what you are talking about it seems. You may feel one way or the other on the matter but you can't project your feelings on reality.

Really, it's bull? So there has been a scientific study done that proves whether a fetus has the same legal status as a person in the US? I gotta start reading these developmental biology journals - they're doing some incredible stuff. So I can educate myself, can you post the citation for the study? I'm really excited now.

[voodoo]

Originally posted by BRussell:
Really, it's bull? So there has been a scientific study done that proves whether a fetus has the same legal status as a person in the US? I gotta start reading these developmental biology journals - they're doing some incredible stuff. So I can educate myself, can you post the citation for the study? I'm really excited now.

You aren't really comprehending what I wrote are you?

I can't imagine how a scientific study could lead to the discovery of somethings rights.

** This just in: scientists discover e.coli have the right to freedom of expression.

[Wiskedjak]

Originally posted by Spliffdaddy:
What we really want is to get it in everyone's heads that a fetus *is* a person

I agree with you ... to an extent. I think that a fetus a nine months is a person. I don't think it is a person at one month. I do not, however, know at which point in the pregnancy I think it becomes a person.

I do know that there are many kinds of slippery slopes one can find themselves on, and I think one can easily say that calling abortion murder at one month of pregnancy is a slippery slope. At that point it would not take too much to argue that preventing conception could be considered murder as well (since many Christian groups believe that our spirits exist prior to conception waiting for life).

Having said that, I don't believe that abortion is something that should be allowed easily. If people are going to be having sex without the intention of pregnancy they should be responsible enough to take the necessary precautions to avoid pregnancy. Abortion reduces the need to make responsible decisions about sex and could cause people to take the risk of getting pregnant too lightly. I think abortion needs to be available, but there needs to be a price paid (not a $ price) by the person who treats abortion frivilously.