criminal law

BUT I AM PRO-LIFE!

Californiapenalcode

 

I hate the term “pro-life.”

I hate it because it’s a misnomer. I hate it because it’s completely misleading, not to mention meta-rhetorical in the worst way. I hate it because in spite of being well-versed in debates about women’s health and abortion (and therefore knowing full-well that I am “pro-choice”), I constantly find myself writing, typing, thinking, and saying the term “pro-life” when I actually mean to say “pro-choice.”

I suppose this happens because I actually am pro-life. I believe in the value of a human being’s life, and I believe in the inalienable right to bodily autonomy for each and every one of us. And because I believe in this right, I believe in every woman’s right to choose. Choose her life. She is a human being and I believe in the value of her life—and her inviolable right to choice—whoever she is.

Below is a case brief I wrote back in my L1 Criminal Law class, on the case of Keeler v. Superior Court. I am sharing it today because it underscores some very important legal facets with regard to who is considered a ‘human being’ according to the law, how murder, feticide, and abortion are all  differentiated in accordance with the law, and why making these distinctions is so crucial, not only to our legal framework, but to well-informed, intelligible, and respectful debates.

 

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KEELER v. SUPERIOR COURT (1970)

FACTS:

  • Man blocked woman with his car while she was in her car
  • Talked to her, pulled her out of the car, got upset at seeing her pregnant stomach and said
  • “I’m going to stomp it out of you”
  • Proceeded to beat her mostly in the stomach, but also in the face
  • Left her there unconscious
  • Woman woke up and drove back to Stockton where she received medical attention
  • Fetus was examined in utero & delivered by cesarean- stillborn
  • cause of death: skull fracture w/ consequent cerebral hemorrhaging

ISSUE: Is an unborn, but viable, fetus considered a “human being” within the meaning of CA’s murder statute?

RULE: No, the majority holds that CA’s Penal Code, Sec. 187 does not mean to include unborn, yet viable, fetuses within its meaning of “human being.”

ANALYSIS: To expand upon the CA statute in order to include unborn, but viable fetuses, would elicit two problems:

  1. jurisdiction, in that the court would be overstepping its judiciary boundary (into the territory of legislature) and
  2. it would violate the defendant’s right to due process by creating a law that would have been unbeknownst to him, because they would be creating it right then and there in that courtroom. Moreover, this violates the prohibition of creating ex post facto laws (because that’s what they would be doing if they were to expand on the statute’s meaning- creating a new law). Finally, there is persuasive authority guiding the majority’s decision- looking at similar cases throughout the country, other states are “unanimous in requiring proof that the child was born alive before a charge of homicide can be sustained.”

CONCLUSION: An unborn fetus, even if viable, is not a “human being,” as regarded by CA state law, the courts are not to overstep their bounds by augmenting statutory law, and if the court were to augment the law within the midst of a case, such as the People would suggest in this one, it would be a violation of due process.

 

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I cannot tell you how many times I have heard the phrase “slippery slope” used by one of my law professors in school, because, really, all it takes is one single word to have been different in a law, one ruling to have been different in a court case, and suddenly you are talking about far-reaching implications and ramifications for many other laws (and individuals) all over the country. Change one legal facet and you are looking at a potential (or rather, probable) shift in our entire legal landscape.

For example, in one class we were looking at cases of pregnant women who had been guilty of intoxication and the legality (or rather, illegality?) of whether or not Child Protective Services could (or should?) be called on them. Can there be—and/or should there be—any legal repercussions for being intoxicated while pregnant?

Can the woman be taken into custody?  After all, there was no actual ‘child’ involved, therefore the rule does not apply. It doesn’t meet the criteria required in order to file charges for child abuse or neglect. Can she be jailed or imprisoned—if there was no possession, no intent to sell, nothing besides the fact that she did in fact test positive for drugs or alcohol? And if she currently cannot be taken into custody according to the law, should she be? After all, once again, there is no child involved—only a fetus, and legally a fetus is not a human being. That’s why it’s called a fetus. And before that it’s called an embryo, and only after it is no longer a fetus is it called a human being.

To be clear, all of the cases we were looking at involved women whose pregnancies were past the point of viability. In other words, all of these women had chosen to go through with their pregnancies and either have a child, or give it up for adoption. In any case, I cannot tell you how much such actions infuriate me. I have had the misfortune of personally knowing a couple of women who have been guilty of these same actions (e.g. doing crack while pregnant with a baby they and someone close to me were going to have). It makes me livid. Beyond livid. I would love to see such women go to jail for this. However, if such legislation were to exist it would compromise the current status quo in a major way. In actuality, it would probably compromise the lives of many more women than initially intended. Remember, CPS only has jurisdiction over juvenile human beings. If they were to have the authority to take action over such cases it would conflict with existing precedent (such as Roe v. Wade and Keeler v. Superior Court), comprising abortion law as we know it today, and bringing with it a whole host of other ramifications. Where would the line be drawn?

Let’s say there’s a woman at a bar, enjoying a glass of wine after a long day at the office. Another patron at the bar—a complete stranger—looks at the woman enjoying her glass of wine and for whatever reason thinks, “Why is that pregnant woman drinking? Unbelievable. I’m calling the authorities.” The woman is taken into custody and it turns out, unbeknownst to her, she is actually pregnant.

What then?

Such legislation and/or rulings could also greatly impact our legal framework (or at least what little of it there is) for assisted reproductive technologies. There are already intense debates going on about leftover embryos, surrogates, and whose rights govern whose genetic materials, and when we are talking about reproductive law at large, it encompasses these aspects as well.

This just about covers the tip of the iceberg as to why I am pro-choice. Yes, I believe in a woman’s right to choose, but I also strongly agree with the legal reasoning behind the majority’s decision in Roe v. Wade, and I don’t think the implications of changing such precedent are worth it. I am pro-choice because, in actuality, I am pro-life. A pregnant woman’s right to her own body and life should never be superseded by the State. Her life comes first—whether she chooses to go through with her pregnancy or not—in either case, it is her life on which everything rests, so why shouldn’t this be her choiceAs the Court concluded in its decision:

“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”

You see, I am pro-life. Because I believe that life starts at the woman.

It’s her life—therefore her decision.

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