girl ipsa loquitur: Peterson Verdict is In...<br> Are There Pro-Choice vs. Pro-Life Implications? Email me!

Sunday, November 14, 2004

Peterson Verdict is In...
Are There Pro-Choice vs. Pro-Life Implications?

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As frequent Girl Ipsa readers know, I try to write for everyone. Every day spent in law school is a day farther from being able to communicate with regular "non-brain-damaged" people. (This is one reason why my buddy, Dork, is so valuable to me. He is being brain damaged right along with me.) The Peterson case has apparently confused some of these normal folks. They wonder, as I would have once wondered;

How can we find Peterson guilty of first degree murder of a fetus and yet an elective abortion of the same fetus is not murder?

To answer this question we'll have to begin at the beginning... A time when the intentional killing of a fetus wasn't murder OR a time when Girl Ipsa sat in criminal law class filled with rage.

The case we studied involved a man who intentionally killed his wife's fetus by "stomping" it. He was angry that she had become pregnant by another man. He beat her violently and stomped on her abdomen while stating his intention to "stomp it out of you". Consequently, the fetus died and the state of California tried to convict this guy of murder.

Now, lets set our own personal and political views of abortion aside for a minute and just answer this question; Should this guy get punished for intentionally causing the death of this fetus? Almost everyone is going to say "You bet!" and those that don't need to examine their reasoning for a non-abortion related hook to hang their conclusion on. Outside the abortion framework, it's clear to everyone -- pro-life and pro-choice -- that what this dude did was wrong, intentional and murder. But it did not work out that way. (Cue Girl Ipsa's rage)

In that case, the prosecution was unsuccessful by definition. In common parlance murder is one person killing another. Sometimes it's a person killing something we love, like our dog. Just recently, in my house, it was the dog killing a plastic horse as in "Oh, no! Crash has murdered Roxy!!" But in the law murder is the unlawful killing of a human being with malice aforethought. Or it was.

You need all of these things -- 1) Unlawful, 2) Dead Human Being 3) Malice Aforethought -- to prove murder. At the time of this "stomping" case (Here in Cali) a fetus was not a human being. At common law, a fetus was not a human being. (!?!) In order to be a human being back then, you had to have taken a breath outside the womb. Until then you were something else, but not a human. Crazy, man!

Therefore the law provided no punishment to this evil baby stomper. And people were angry. So, the California legislature changed the law to read "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." WHEW! Now we can get those evil baby stompers. As we've already determined, no rational person will disagree that this is the right outcome.

Now, lets add in the abortion issue. (wince... Girl Ipsa is not a fan of fire bombing so please go easy on me) We're back to our question of what's the difference? With abortion you have a fetus, right? The statute says it's murder to kill a fetus. (It's an embryo until 8 weeks and after that it's a fetus) The easiest answer to this is the first element of murder ~ UNLAWFUL. For now abortion is lawful. So, it's not an unlawful act and that ends the murder inquiry right there. Same goes for execution of prisoners. In that case there is certainly an intentional killing of a human being. But we do not prosecute the warden because his act was lawful.

This is unsatisfying to those that think abortion should be unlawful. It seems like a technicality and, truth be told, it is a technicality. To differentiate between fetuses which are wanted by their mothers and fetuses which are unwanted is to make a false distinction. There are no differences between the fetuses, are there? Only differences between their mothers.

However, the competing interests are so polarized that to interject a designation, an absolute-for-all-purposes designation, of a fetus as a person or not is to declare war. Neither side is prepared to just concede. It is a satisfactory resolution, in a very moderate atmosphere, to agree for purposes of murder only. And we do all agree. What Scott Peterson has been convicted of is a crime and it should be punished. There is no reason to disagree if you do not have to worry that agreement will result in the loss of the personal right to choose abortion.

In the end, the analysis turns on the lawfulness of the act not the humanness of the fetus. This doesn't get either side of the abortion issue into the Winners Circle but it does get Scott Peterson behind bars, where he belongs. And perhaps, since we are in California, the next issue raised will be another lawful killing: Peterson's execution.


Blogger The Director said...

Good legal analysis on this issue. Most people get caught up in the personhood debate and miss the lawful vs. unlawful killing point.

I think that the Peterson case will have an impact on the abortion debate outside the legal arena. This case has publically (and nationally) re-affirmed the personhood status of an unborn child. The more public opinion comes to resolve that an unborn child is a person deserving legal protection, the shakier the foundation of Roe v. Wade becomes.

Technology is also shaping views on this issue. Google the terms: ultrasound 30 weeks. Take a look at some of the 3d ultrasound photos. People who see images like this are more likely to recognize the humanity present, and not a mass of discardable tissue.

You have a very interesting blog. I plan to visit more often in the future.

3:25 PM  
Blogger girlfiend said...

do you think that this will set a precedent that will interfere with a woman's right to choose?

1:33 PM  
Blogger Girl Ipsa said...

It isn't setting a legal precedent since this is all settled law. What it will do is raise the issue in the public forum and bring it up for more debate.

Thanks for reading!

3:11 PM  
Blogger The Director said...

I rather despise the term "a woman's right to choose." That term was adopted because it is so much more palatable to say one is in favor of "choice" than it is to say one is in favor of abortion. Who could be against choice? Choice is a great thing! We all love choice!

The phrase is intellectually dishonest. We all have the right to "choose." The fact is, some choices have different consequences than others. I can choose to kill my neighbor if I wish to. Or I could choose to key his car. Or bake him a cake. The question is: what consequences attach to my choices?

Currently, a woman's choice to have an abortion bears no legal consequence. There may be physical, emotional, or spiritual consequences, but there will be no legal consequence. The debate is not whether women can choose to have an abortion. The debate is over what legal consequence, if any, will follow that choice.

11:21 PM  
Blogger Christopher Chopin said...

I was planning to stay out of this conversation, as, quite frankly, being a man, I have no stake in the matter. But I suddenly feel the need to respond.

Director, I can only assume what you direct is some sort of group for the massively underinformed who wish to stay that way. First and foremost yes, "choice" is a word that has positive connotations. Not like saying you're pro-life, which of course so many of us despise. Boo on life. Who likes life? How silly.

But as for the lack of legal consequence to a woman's right to choose what will happen to her own body, you simply don't seem to get it. Every time an American citizen exercises a right guaranteed by our Constitution or the Courts charged with interpreting it, there are far reaching effects, not the least of which is a more cemented understanding that at least some of us are paying attention.

The moment, as you seem to believe, the debate is no longer about a woman's right to choose what to do with her own body, the debate is over, and that choice is lost.

The debate is whether a woman may continue to choose to have an abortion without small minded oppressors determining that the end result of such a choice should be prosecution or stigma of any kind. The debate is about whether that choice is a free one, or a back alley, coat hanger result of the lack of any free choice.

You're right, director, the choice has always been there. And countless women have died, been permanently injured, been prosecuted, and been run out of town on a rail as a result of the lack of any freedom to make that choice. I think its clear to anyone reading your posts you'd like to see those bad old days return, and still say women are free to choose. I, for one, am disgusted.

What's next, Director, saying minorities may choose to vote, but you can choose to lynch them if they try? Is that where the debate lies?

4:05 PM  
Blogger Madame Rubies said...

Thank you for explaining this. Tho, I am of the mind that a baby is a baby is a baby and it's all murder. I didn't know all that about the law and how it changed. I am glad to know now.

8:05 PM  
Blogger The Director said...

First things: Heather, the law has not been changed by the verdict in the Peterson case. Abortion is still legal. The Peterson case is merelyan example of changing public opinion regarding what the legal status of an unborn child should be.

Second things: Christopher, let's define a few parameters for discussion first. The Constitution does not guarantee a right to an abortion, nor does it guarantee a right to privacy, nor does it guarantee a right to "choose." You state that the right to an abortion is one guaranteed by the Courts charged with interpreting the Constitution. This is the current state of the law. However, there is a big difference between a Constitutionally guaranteed right and a Court guaranteed right. A Constitutional right can only be taken away by amending the Constitution. A Court-defined right can be given or taken away whenever the Court in question changes its mind. There's something a lot more "guaranteed" when 3/4ths of the states have to agree to take away a right, as opposed to 5 judges sitting on the Supreme Court. So let's avoid any mention of the Constitution proper in this discussion, and stick to the Supreme Court.

Second of all, let's define how we speak of choice. I think we can agree that every mentally competant individual always has absolute free choice about everything they do. Let's restrict our discussion of "choice" to only those choices that one can make without violating any laws. So when I speak of someone having a "choice", I will mean the person has an option available to them that is not proscribed by law.

Now then. You speak of a "woman's right to choose what to do with her own body" as if it was an absolute, fundamental right. It isn't. No woman, or man for that matter, has the absolute right to choose what to do with their bodies. Where I live, women (and men) cannot expose certain body parts in adult clubs. Are exotic dancers in my city being barred the right to choose what to do with their bodies? Yes. Likewise with prostitution (unless you live in Nevada). We can all argue the merits of such regulation on people's bodies, but the fact remains that the law (interpreted by the Supreme Court) allows and forbids certain activities relating to the bodies of men and women.

It sounds from your comment like you think I am a "massively underinformed," "small minded oppressor" because I believe that the choice to have an abortion should bear a legal consequence for those who make the choice. I suppose that you would think the same of anyone who regulates physical conduct in any way, shape or form. If not, what makes abortion different for you?

What makes it different for me is the legal status of the unborn child. This is the issue at the crux of the abortion debate: whether an unborn child a "person" guaranteed the protection of the Fifth Amendment of the Constitution. The Fifth Amendment states "No person shall be... deprived of life, liberty, or property, without due process of law...."

If an unborn child is a "person" as is stated in the Constitution, then a woman cannot "choose" to deprive that person of life without due process of law. Period. This is why the pro-abortion movement frames their position as a matter of "choice" and denies the personhood of the unborn child. When people believe that an unborn child is still a person within the meaning of the Constitution, they instinctively understand that that person has rights that cannot be taken away by a "choice."

If, as I myself believe, an unborn child is a person, then the issue of choice is moot. No man or woman can legally choose to deprive another person of their life. Constitutionally, that person is entitled to due process of law before their life is taken.

This is why the true abortion debate is NOT about choice, as you suggest. This is why the Peterson case was important for conferring, at least in the arena public opinion, some degree of legal protection and status on the life of Scott and Laci Peterson's unborn child.

Finally, you drew some rather interesting conclusions from my previous comment. You stated that I want to see women dead, permanently injured, prosecuted, and run out of town on a rail. Did you REALLY draw that conclusion from my comments, or are you just engaging in demagoguery? Does it REALLY disgust you that I believe an unborn child is entitled to legal protection? Or is it just that you don't want to rationally debate the issue? Perhaps you understand, deep down, that if you are right, we're just arguing about petty regulations, no different than legalized pot or the skin business; but if I am right, the stakes are much, much higher. Perhaps you don't want to face those stakes, Christopher.

I welcome discussion and debate with you, but let's try in the future to stick to the facts at hand and avoid the kind of wild, inflammatory, and rather silly conclusions that you drew in your earlier comment.

Thanks to Ipsagirl for hosting this little discussion!

1:16 PM  
Blogger Girl Ipsa said...

This is certainly an interesting discussion. When I first wrote the post I feared the abortion debate would rear it's less than lovely head. But Girl Ipsa must learn to face her fears, right?

Director, for the purposes of an "On Point" discussion you must keep in mind that the U.S. Constitution does NOT direct the day to day lives and choices of citizens. It has nothing what ever to do with your "choice" to kill or not to kill your neighbor. Our Constitution has nothing to say about that. It is only going to apply to you if you are the federal government or a "state actor" for purposes of the 14th Amendment. Period. A woman’s personal choice to have an abortion raises no constitutional protection issues for the fetus. (Or, I would much prefer, EMBRYO)

Further, we have some varying law on the personhood of a fetus. The California murder laws say "human being OR fetus". This law does not confer the legal status of "person" on a fetus. And, for purposes of the 14th amendment a fetus is not a person.

So, the constitutional argument isn't supported at all.

As for consequences flowing from free choice I have to say - Duh. We all have the power to do what ever is, well, with-in our power.

By casting this issue into black and white contrast, we do not get one inch closer to a resolution. It is not simply an issue of the rights of a fetus, as the fetus can not exist independently of its mother who is clearly a person within the meaning of our laws and who clearly has that protection we extol. That single fact is what makes all other analogies off point. There is no other situation which so intertwines the corporeal rights of one with another. Except for con-joined twins! Not a lot of case law there, though.

I would entreat those that want to think slightly deeper than the surface to really consider the competing issues. To examine the contentions of the opposing viewpoint will not taint you with evil Right/Left-ness.

Thanks for reading! Girl Ipsa

9:52 AM  
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9:59 AM  
Blogger The Director said...

Girl Ipsa,

You are correct when you say that our law (as interpreted by the Courts) does not confer the status of personhood on the unborn for purposes of the 5th and 14th Amendments. I don't believe that I ever said it did. My point (which may not have been evident) was that the debate over the personhood of the unborn is where I personally believe the issue will eventually will be resolved, not the debate over "choice." That was the whole point of my very first comment regarding the Peterson case. We have had in this country a series of events, some legal, some political, which shift the debate closer and closer to the question of whether and at what point an unborn child is a legal "person." Aside from the Peterson case, the partial-birth abortion ban also comes to mind.

You are also correct when you say that the Constitution does not direct our day to day lives and choices. Precisely. So why is it that pro-abortion groups proclaim so loudly that a woman has a Constitutional right to choose to have an abortion? What is it about choosing abortion that makes it Constitutionally protected when other forms of bodily choice are freely regulated by both state and federal government? What makes it different, at least in my opinion, is the gray area involved when dealing with an unborn child.

Yes, gray area. It's not an objectively black and white discussion. It will become black and white if the debate ever legally resolves the question of unborn personhood. Most would agree that a child is a legal "person" when it exits the womb. What was different about the child one minute before it was born that denies the status of personhood to the child? Is it merely that the child is still connected to the mother? What about premature children, are they not persons until the cord is cut?

There is a LOT of gray area here in our public debate. There are many questions that need answering. But I believe that any intellectually honest debate of the abortion issue must confront these questions of personhood. I believe in the freedom of individual choice, but I also bellieve that no choice can be legally absolute if it infringes on the most basic rights of others. It is those who argue for absolute choice who are failing to address the deeper issues involved in this debate. Sure, it's a lot easier to say "it's a woman's choice, period" than it is to jump into the briar patch of resolving the personhood of an unborn child. But I think it's an avoidance of the ultimate issues involved.

And that's all I have to say about that.

Thanks again to Girl Ipsa for hosting the discussion, and on a personal level, for not resorting to name-calling and innuendo.

11:51 AM  
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