Kalibah

Please read this before you delete it Mods.

It pertains to politics as you will soon understand ( if you dont now )



How can a fetus NOT be considered a humanbeing- yet Scott Peterson is convicted of 2nd degree murder for killing conner?


How do they argue this? am i mistaken in my understanding of a fetus not being a human being in lawmakers eyes? How can lawmakers and politicans defend abortion and then convict for this?

Jimellow

I am not familiar with abortion laws, nor am I really familiar with the case, but I would think there is a difference between being pregnant and murdered than being pregnant and making an informed and logical decision that you want to abort your child.

In this case, I would assume the mother would have preferred her son to be born, and thus her being killed is like murdering two people.

Lebell

I agree, it's an inconsistancy in law that should be addressed.

If abortion is indeed legal and not "murder", then there should be a law such as "Intentional harm or killing of a fetus", or some such.

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Ironic, isnt it?

joeshoe

I think it opens up a whole new can of worms. You're right, there is an inconsistency in the law, a definite ambiguity (oxymoron unintended). It's just like the law banning late-term abortions. If a fetus isn't a human until it's born, then why should late term abortions be any different? So a fetus IS a human before it's born, according to those laws. I think the best solution would be to define a point in the pregnancy when the baby has "human status."

mused76

i agree. if they're going to charge scott for second degree murder for the unborn son then abortion, in that sense, should be illegal. seriously. this will open up a lot of debates and bring this issue to the forefront once again. i'd like to hear what people who are for abortion have to say regarding this case and issue.

matteo101

Perhaps we need to take into account that their was not concent from the mother. I am just throwing some ideas out btw. I really have no clue.

hannukah harry

if i remember correctly, there was talk back before and up until he was charged that they might charge him with a double murder as a manner of trying to wedge the anti-abortion door open a little further. the idea being that every little bit that they can do to add laws or get court decisions pertaining to an unborn entity having the same rights are human could be used to erode roe v. wade.

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roachboy

first off, what is the big deal about the peterson case?

secondly, i do not think anything groundbreaking was introduced by charging peterson with double murder: i think it is pretty routine in murder cases where the victim was a pregnant woman. i way to going for a harsher sentence. you would think that is obvious.

third: i dont really see the inconsistency in all this---i am not a lawyer, but it seems to me that the question of "personhood" for a fetus vs. the ability of a woman to control her own body has been the dividing line across which this matter has been fought out all along. this would explain why the question of viability has become so important legally.
the political correlate of all this is another fight over how the question of abortion should be framed.

the "hey i just noticed this...." move at the outset of this thread is obviously disengenous.
i would also expect to see more of this kind of foolishness from the anti-choice crowd over coming months. more "logic" covered by "hey what about this...?" moves to dismiss....

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MSD

The death of the fetus when killing a pregnant woman is like strapping her down to a hospital bed, sedating her, and performing an abortion against her will. An abortion is a choice by the woman. I think we can all agree that those two situations are different.

Publius

While I’m not a lawyer (yet), I do happen to be a law student. California, like most states, has adopted exception clauses for abortion. The California Penal Code Section 187 reads:

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.

Since Peterson was convicted of 1st degree murder he is facing penalty under California Penal Code Section 190 which reads in relevant part:

190. (a) Every person guilty of murder in the first degree shall be
punished by death, imprisonment in the state prison for life without
the possibility of parole, or imprisonment in the state prison for a
term of 25 years to life. The penalty to be applied shall be
determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and
190.5.

If your really bored and want to read the entire California Criminal Code dealing with murder, you can find it here: http://www.leginfo.ca.gov/cgi-bin/di...0&file=187-199

Now as for the law being inconsistent let me throw something else into the mix for consideration here. If unlawful killing is considered murder, then, what makes a killing lawful? And if there can be lawful killing then why would it be inconsistent for abortion to be included in that category? (Suggest you think the first question through before answering the second.)

Kalibah

I suppose it is
a Woman can chose to end her childs life
not a man


Its hers, belongs to her, etc.

Then again at 9 monthes... it could live outside the body ... hmm definatly questionable

SecretMethod70

To categorize the killing of a fetus as murder is to consider it a seperate human life. Once that consideration takes place, it doesn't make a difference whether or not the mother is willfully killing the fetus or not, because once that consideration takes place the fetus has its own right to life. That is where the inconsistancy lies, whether the law states it that way or not.

To differentiate between the mother CHOOSING to take the life of the fetus and someone else doing it against her wishes the fetus must qualify as PROPERTY of the mother and not a seperate life in and of itself. If it is property of the mother and not its own human life, then the killing of the fetus is no different than the killing of the mother's dog: something that is not equatable to murder.

This is, indeed, an inconsistancy, and one intentionally put into place by pro-life lawmakers. This is precisely why there was so much debate over the federal version of this law when it was up in congress (I know: I watched them debate it on C-Span).

As for lawful and unlawful killing, it is pretty clear that a killing is lawful when done in self-defense or sanctioned by the state as punishment for a crime. I am not aware of any other circumstances where the taking of human life is lawful. If an unborn child is, legally at least, not considered a human life, then there is no inconsistancy with abortion being legal. If it is considered to be a human life however, which the California and, now, federal murder laws suggest by not treating it as a destruction of property, then legal abortion would be inconsistant when the mother's life is not in danger (in which case it would fall under self-defense).

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Suave

Abortion requires the consent of the mother. I believe abortion is also illegal past the first trimester, barring extenuating circumstances, and perhaps the unborn child was in the second or third (I believe it only becomes a fetus in the second trimester anyways, but it's been a while since biology).

Jimellow

I think it's wrong to assume that the mother wanted to abort the child, and thus the murderer should be tried for murdering two people IMO.

And if there was documentation that the mother had signed that indicated she wanted to abort the child, and was murdered, then I would think the murderer should be tried for murdering one person and acting out of practice and aborting the unborn child, given that he isn't a doctor with the rights to do such things.

There is definitely a difference between a mother's consent to abort and a murder's intent to abort, because he is not carrying the child.

When such a case arises, I think it's safe to assume that the mother intended to have the child, unless there is signed and valid documentation stating otherwise.. And if there is such documentation, would that change the charges against the murderer from murdering two people to something else?

SecretMethod70

Since abortion is legal, it is clear that future POTENTIAL is not a valid factor in determining the status of something. In other words, it doesn't matter that what is carried in the mother's womb has the POTENTIAL to be a human, from the perspective of abortion it is not PRESENTLY a human and therefore is property of the mother and not its own life. This is necessary for abortion to be legal, otherwise the thing inside the mother would have rights of its own - including the right to life.

As such, whether the mother PLANNED to give birth to the child or not is of no consequence in terms of murder. The question is, what is the object inside the mother's womb considered AT THE TIME OF THE MURDER. So then, the object can either be considered property of the mother or a life in its own right. It cannot be considered one under one circumstance and the other under another - it is either a human life or not. In other words, a murder that takes place during a time period in which it is legal for the mother to have an abortion must be considered to be a murder of ONE person accompanied by the destruction of that person's property (imagine if a person murdered a woman and killed her dog as well).

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Tarl Cabot

Yours is the most logical discussion of the issue I've seen. I've always felt the issue resembled legalized permission to kill a person who was in a coma, but who was extremely likely to make a full recovery in 9 months or less.

And, although a "woman's right to choose" is firmly ensconced in our laws, a fetus's right to choose life is apparently not.

Man, I can't seem to respond to only one post here.

There was also talk of NOT charging him with a double murder for the exact same reason. Hence the total lack of women's groups such as NOW crusading on the issue.

Yes. The hospital scenario would be assault and battery, under current law, since it didn't result in the end of a human life.

Publius

Wow so much here I want to respond too. First, SecretMethod70 for providing exactly what I was looking for in a response so allow my to quote you in part here a couple of places (from your 2 different responses).

SecretMethod70 “... As for lawful and unlawful killing, it is pretty clear that a killing is lawful when done in self-defense or sanctioned by the state as punishment for a crime. I am not aware of any other circumstances where the taking of human life is lawful. If an unborn child is, legally at least, not considered a human life, then there is no inconsistancy with abortion being legal ...”

Exactly, or so we are told. But in actuality this is not entirely true. Let me quote the relevant California Code here to provide background.

195. Homicide is excusable in the following cases: (Note: it reads excusable not lawful)
1. When committed by accident and misfortune, or in doing any
other lawful act by lawful means, with usual and ordinary caution,
and without any unlawful intent.
2. When committed by accident and misfortune, in the heat of
passion, upon any sudden and sufficient provocation, or upon a sudden
combat, when no undue advantage is taken, nor any dangerous weapon
used, and when the killing is not done in a cruel or unusual manner.

196. Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either– (Note: it reads justifiable not lawful)
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to
the execution of some legal process, or in the discharge of any other
legal duty; or,
3. When necessarily committed in retaking felons who have been
rescued or have escaped, or when necessarily committed in arresting
persons charged with felony, and who are fleeing from justice or
resisting such arrest.

197. Homicide is also justifiable when committed by any person in any of the following cases:
(Note: it reads justifiable not lawful)
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.

Now that is a lot of legal mumble jumble there, but it does supplies us (at least within California Law) with a legal definition of lawful killing. Self-defense here, as in most states, does not constitute a lawful killing but an “affirmative defense”. What does this mean exactly? It will be up to the prosecution to decide whether or not to charge one with the commission of a crime in the death of another when it appears that one was acting in self defense of oneself, one’s property, or the life of another (but only when the other is unable or unwilling to act in his own defense). If the prosecution does charge one with the commission of a crime, then, one can raise the self defense claim as an “affirmative defense” to that charge. In raising an “affirmative defense” one basically is saying “yes I did what I am being charged with doing, but I was justified in doing so, therefore, I should not be found guilty”. It will then be up to the jury to decide if the killing was justified or not. If the jury returns a verdict in your favor, then the killing was lawful, but if the jury find against you then shit up a creek in a leaky canoe without a paddle.

SecretMethod70. “Since abortion is legal, it is clear that future POTENTIAL is not a valid factor in determining the status of something. In other words, it doesn't matter that what is carried in the mother's womb has the POTENTIAL to be a human, from the perspective of abortion it is not PRESENTLY a human and therefore is property of the mother and not its own life. This is necessary for abortion to be legal, otherwise the thing inside the mother would have rights of its own - including the right to life ...”

Good point here and I would definitely agree that the law does not take into account the POTENTIAL status of the fetus only its relevant status at that particular point in time (I’m not sure I can agree with you about argument that the fetus is the mother’s property however, but that is a topic for another time). The California Penal Code in Section 187 (b) (1) makes a specific exception to the charge of murder when: “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.” So, it is important to read all of the law to see the entire intent of the legislature here.

123460. This article shall be known and may be cited as the
Reproductive Privacy Act.

123462. The Legislature finds and declares that every individual
possesses a fundamental right of privacy with respect to personal
reproductive decisions. Accordingly, it is the public policy of the
State of California that:
(a) Every individual has the fundamental right to choose or refuse
birth control.
(b) Every woman has the fundamental right to choose to bear a
child or to choose and to obtain an abortion, except as specifically
limited by this article.
(c) The state shall not deny or interfere with a woman's
fundamental right to choose to bear a child or to choose to obtain an
abortion, except as specifically permitted by this article.

123464. The following definitions shall apply for purposes of this
chapter:
(a) "Abortion" means any medical treatment intended to induce the
termination of a pregnancy except for the purpose of producing a live
birth.
(b) "Pregnancy" means the human reproductive process, beginning
with the implantation of an embryo.
(c) "State" means the State of California, and every county, city,
town and municipal corporation, and quasi-municipal corporation in
the state.
(d) "Viability" means the point in a pregnancy when, in the good
faith medical judgment of a physician, on the particular facts of the
case before that physician, there is a reasonable likelihood of the
fetus' sustained survival outside the uterus without the application
of extraordinary medical measures.

123466. The state may not deny or interfere with a woman's right to
choose or obtain an abortion prior to viability of the fetus, or
when the abortion is necessary to protect the life or health of the
woman.

123468. The performance of an abortion is unauthorized if either of
the following is true:
(a) The person performing or assisting in performing the abortion
is not a health care provider authorized to perform or assist in
performing an abortion pursuant to Section 2253 of the Business and
Professions Code.
(b) The abortion is performed on a viable fetus, and both of the
following are established:
(1) In the good faith medical judgment of the physician, the fetus
was viable.
(2) In the good faith medical judgment of the physician,
continuation of the pregnancy posed no risk to life or health of the
pregnant woman.

It is important to focus in on Sections 123466 & 123468 here because they show us where and when the fetus gains rights, ie. when it become “viable”. Viability is generally considered (presently) to be not before 24 weeks, after which time a child MAY BE (but not necessarily) viable (I don’t have sight for this one, but I did ask my wife who happens to be an OBGYN and that’s what she told me). Of course there is still the exception for when the abortion may be deemed necessary to protect the life of the mother (and here again I would agree with you SecretMethod70) which can be raised as an “affirmative self-defense”.

I still however fail to see any inconsistency in the law here (or at least in California Law). A women has the right to terminate her unwanted pregnancy prior to the time of viability, whereas, another does not have such a right (unless acting on behalf of the women and in accordance with California Law). Likewise, I may be justified in killing a bugler in my house whereas I would not be justified in shooting someone who was mugging me on the street (unless I am unable to escape and my life is in immanent peril, but for the purpose of this hypo let us presume my life is not in peril so we can compare apples to apples). Are these situation inconsistent with one another? No, I would argue that they are not because although they may seem similar there are still sufficient differences to justify the different results.

SecretMethod70

What I'm getting at is that during the time period in which a mother has the legal ability to terminate a pregnancy, outside of the need to protect her own life, it cannot be considered a life. So, you point out that a woman can terminate a pregnancy up to 24 weeks and sometimes afterwards without it being an act of self-defense. This means that, according to the law, it is not a life before 24 weeks, but may be considered a life after 24 weeks. Specifically in the case of Scott Peterson, this means there is no inconsistancy: Laci was 8 months pregnant and abortion (presently at least) is illegal during that time. There is no inconsistancy in charging Scott Peterson with double murder.

What I am intersted in and concerned about however is the person who murders a pregnant woman BEFORE the third trimester. Any time in which it is legal for a woman to have an abortion for reasons other than self defense, the thing in her womb must not be considered a life. Like I stated before: if it is a life, it has its own rights, including the right to life. So, by the very fact abortion is legal in the first two trimesters, we are affirming that it is NOT a life and has no rights. If a murder takes place during that time then, only one person has been denied her right to life - not two. Thus, only one murder has taken place. Now, if the law wants to charge the murderer with something else in respect to the pregnancy - such as whatever the charge would be if the murderer had also killed the woman's dog, or perhaps as someone else mentioned, acting without a medical license - that's fine with me. I see no logical explanation, however, for why a murderer can be charged with double murder in the first two trimesters - indicating he has taken two human lives - yet the pregnancy is conveniently not a human when the woman wants an abortion.

I see this situation as us having our cake and eating it too. Of course, if a person who murders a woman before her third trimester COULDN'T be charged with double murder, then there is no inconsistancy. I am not awaer of any such distinction though.

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ARTelevision

I think abortion is murder. But I don't care. I think abortion is a good thing all around. Too many humans are born, IMO.

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hannukah harry

i think that this is the first time i have ever heard this opinion... could you expand on why you feel this way?

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Suave

I can't speak for ART, but I share the latter part of his opinion. Too many humans are being born, which is resulting in overcrowding and environmental strain. We are not socially advanced enough to support our growing population without destroying the planet, and ah also likes mah livin' space.

However, I'm anti-abortion (except under certain circumstances) and believe that the world population growth rates should be dealt with through preventative measures rather than corrective measures (under which I believe abortion falls).

ARTelevision

It seems to me that each new person born puts pressure on the people who are already alive. That would be the reason behind my statement. I am interested in the people who are alive, period.

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flstf

Perhaps the fetus is just as much alive and deserving of the right to live as you and me. Maybe we (or you, LOL) should be removed instead to make room for them.

flstf

I think your analysis here and in your other postings is right on the money. It is hard to justify the fetus being a precious human being in one case and just so much medical waste in another.

I guess I am still in favor of a woman's right to abort, even though we have the above dilema. However I can't help thinking that people in the future may look back at us and say " those people were such barbarians, killing all those helpless unborn children just because they were inconvenient".

ARTelevision

flstf, I don't acknowledge the existence of "rights."

I acknowledge only power relationships.

........
edit: I already acknowledged it as murder. For those of you who are fascinated by parsing the definition of life, I'll rephrase my explanation to this statement:

It seems to me that each new person born puts pressure on the people who are already here. That would be the reason behind my statement. I am interested in the people who are now on earth, period.

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Stompy

Apples to Oranges, people...

If the mother intends on keeping the baby and someone intentionally causes harm to her which results in the death of her fetus, that is murder. The baby belonged to the mother and the other person had no intention on killing it.

If the mother decides she no longer wants the fetus inside of her, it's a different case. Why? It's her baby, the clump of cells growing inside of her body is belongs to her. She is the host providing energy to allow the cells to grow and develop. This clump of cells cannot live without the host. I'm sure they could take it out and put it in some type of test tube, but that doesn't really count.

If she decides that she doesn't want the baby, she has the legal option of getting it removed. HER choice of getting it removed, not someone elses.

So... second degree murder .. abortion, NOT the same.

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aliali

I wonder how it is different to the fetus/baby.

aliali

It seems that the baby/fetus can be killed by a third party or at the request of the mother--one is illegal, the other is legal. However, the mother's decision of whether to keep the baby/fetus alive doesn't change what the baby/fetus is, that is, it is a baby or fetus or worthy of legal protection whether or not the mother wants to abort, keep it, or changes her mind twelve times. So, the baby/fetus is killed in any event. What is the basis for protecting the baby/fetus from third parties and why doesn't that apply to everyone?

Stompy

You talk about the fetus as if it's a living thing. You can't prove or disprove it either way, so it's moot. The only path this thread will lead to is about whether or not the fetus is really alive and deserves rights.. and that gets nowhere because no one knows the answer - it's all opinion.

Like I said, the two situations between murder and abortion are different for fairly obvious reasons. One is assault, the other is a conscious legal choice of the host to follow through with a medical procedure to remove the cells growing inside of her.

Murder is illegal, so why isn't it illegal for you to kill someone in self-defense? The person dies either way, right? You have to take into context what's happening. If a man walks up to a pregnant woman and just kicks her in the stomach causing her to lose her fetus, it's subjective and would most likely be murder of sorts because it wasn't up to the attacker to decide whether the fetus lives or dies.. especially if the mother had every intention on allowing it to grow and develop.

The mother (the host) owns those cells. Nobody (except her) has any say over them. Period.

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Coppertop

Seems to me that Publius answered the question dead on:
Abortion is lawful killing. Therefore the law is not inconsistent, no matter how much some people want it to be.

hannukah harry

so then you'd be in favor of prosecuting the mother for manslaughter if she miscarries? or if she falls down the stairs or gets into a car accident and loses the baby? that's the implications of what you're suggesting.

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daswig

They are entirely different things. It's one thing if you decide "Gee, I'd like to kill myself" and carry through on it. That's suicide, and isn't a crime. It's another thing entirely for somebody else to say "Gee, I'd like to kill that person" and carry through on it. That's murder.

It's a woman's right to decide if she wants the fetus inside her any more. If she doesn't, that's her right, and the fetus will die. It's entirely another thing for somebody else to say "I don't want her pregnant", and kill the fetus.

Women are not incubators.

hannukah harry

actually, there is no question that a fetus is a living thing. the question is whether or not it is a human organism or a (for lack of thinking of a better term) a precurser to a human organism. and what rights does it have? those are based on how we classify a clump of cells that are human in origin, but may or may not have developed into a human organism.

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Lebell

Hmmm, I don't see how you can possibly argue this.

Biologically, there is 100% no doubt that the fetus is alive (showing biological activity) and I've never seen a philosophical argument that it is not.

The only viable arguments that I've seen that favor abortion rights is that the fetus is not a person and therefore should not be afforded the same rights.

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daswig

By the "biological activity" definition, cancer is alive. That doesn't mean it has rights.

I prefer the respiration test. If it's breathing, it's alive. Until it has taken that first breath, it's not alive, and once it's stopped breathing, it's no longer alive. It has a certain elegance to it as a solution.

filtherton

I agree completely. There is biological activity in the shit i just flushed down the toilet(kinda felt like giving birth).

I belive abortion serves a purpose that is of a benefit to society. Less people, and less people born to people who don't want them.

aliali

I'm not suggesting anything about miscarriage or an accident. The question I am asking is, if it is illegal for a third party to kill a fetus/baby because we are protecting the fetus/baby, why is it legal to kill the fetus/baby with the consent of another who is not the fetus/baby?

It is alive long before it breathes outside of the womb. It is protected from third parties w/ criminal and civil sanctions for those that harm it. If it is worthy of protection, why does it matter to it who kills it or orders it killed?

daswig

Simply because a fetus does not have the right to cause it's mother to become a slave to the fetus. 13th Amendment and all that...

If you visit me at my invitation, in my house, I can kick you out, even if it means you freeze to death. That's life.

hannukah harry

heh, i was using a landlord/tenent/squatter analogy in my response to him/her before i hit some button and it closed all my windows (damn macs).

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