girl ipsa loquitur: 11/14/2004

Sunday, November 14, 2004

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

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.