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    Default Abortion As Justifiable Homicide

    If a fetus/unborn human was eventually defined as a legal person, would abortion become justifiable homicide?

    (Fetus is a physical threat to the mother because of its nonconsensual occupancy of her body, she seeks an abortion in self-defense.)

  2. #2
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    Default Re: Abortion As Justifiable Homicide

    Making that definition would not itself overturn the Supreme Court’s decision in Roe v. Wade that held that women have a right to an abortion. Should the Court ever decide to reconsider that stance and overturn the Roe case then the answer to your question would depend very much on the law of the state where the abortion occurs. I strongly suspect the answer will be no. Those more liberal states that support a woman’s right to an abortion will simply not make abortion a crime in the first place and thus no such defense would be necessary. On the other hand, the more conservative states that are pro life aren’t going to make abortion a crime and then simply turn around and negate that by providing the affirmative defense you suggest. However, some states may well provide a defense where the unborn child posed a true medical threat to the life of the mother, i.e. that the mother would likely die without the abortion. They may also provide that abortion is not illegal when the pregnancy was the result of forcible rape. Those exceptions are, however, much more specific and more limited than the kind defense you suggest in which the threat is merely the “nonconsensual occupancy of her body” whatever that nebulous phrase might mean.

  3. #3

    Default Re: Abortion As Justifiable Homicide

    Thank you for the response. Let's say the federal constitution is changed to include the unborn as persons, with all states following the definition.
    Of course pro-life states won't offer up a defense of "self-defense". My example would require a citizen challenger adversely affected by the law (effectively a ban on abortion).
    Roe v Wade found the woman's right to abortion through the 14th Am, and I think it could be re-decided again in favor of a woman's right to choose, but based on the 2nd Am's right to self-defense.

    I called it a "nonconsensual occupancy" for lack of a widely accepted alternative to "pregnancy" because the former notes the presence of two separate actors.

    If a person through no fault or ill will of his own were to suddenly grasp at you to prevent himself from falling off a cliff, at once risking you to similar harm and death, what would be your obligation to save him?
    If you chose to make an attempt at saving him but thereafter saw that you would almost certainly fall as well, would you be allowed to change your mind?
    Finally, after forcibly breaking free, after this person to falls to their death, should you be held liable? What was your intent in allowing the other person to die? What could you use as a defense?

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    Default Re: Abortion As Justifiable Homicide

    It is generally not a "nonconsensual occupancy". By engaging in activities that could lead to the creation of a child, the woman consents to the possibility of that occurring. Rape would be an obvious exception.

  5. #5

    Default Re: Abortion As Justifiable Homicide

    free9man, can you please point to some precedent for the claim that sex alone forms the basis of a contractual agreement? It's the birth of the child that creates a duty owed by the parent (unless they're unfit I guess).

    Assuming you're right and the act of sex alone places the woman (but not the man) in a contract to provide life-sustaining support to the fetus, the question would be: Is it a protected personal freedom to change one's mind?

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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    Thank you for the response. Let's say the federal constitution is changed to include the unborn as persons, with all states following the definition.
    Again, just defining the unborn as a person does not change the law on abortion. Unless the Supreme Court were to overturn Roe v. Wade or the Constitution were amended to expressly overturn that case, i.e. an amendment stating that the Constitution does not protect a right to abortion, the current state of the law would be unchanged. Bear in mind that simply defining an unborn child as a “person” does not mean that the state must have a law that bans abortion or that would define abortion as murder. Thus, if the constitution were to state that the unborn child is a person, my previous answer still applies: those states that oppose abortion would adopt (or retain, if they have them on the books now) laws that ban abortion. Those states favoring the mother’s right to choose would not adopt laws that make abortion illegal (or repeal such laws if they have them on the books now). In neither case would your odd defense of “nonconsensual occupancy” be needed, and that phrase is so vague as to invite years of litigation over what it means.

    Quote Quoting LexNonScripta
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    Roe v Wade found the woman's right to abortion through the 14th Am, and I think it could be re-decided again in favor of a woman's right to choose, but based on the 2nd Am's right to self-defense.
    Two problems with that. First, the Second Amendment is NOT a right to self-defense. It is a right to bear arms. That is a distinctly different thing. The extent of a self-defense claim to prosecution for some offense (e.g. murder, manslaughter, etc) depends on the law of jurisdiction prosecuting the offense, not the second amendment. Second, it is not at all a reasonable stretch to say that a normal pregnancy results in a situation in which the mother fears for her life and needs to resort to killing another (the child) to protect herself. The vast majority of pregnancies in this country do not result in death or serious injury.

    Quote Quoting LexNonScripta
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    If a person through no fault or ill will of his own were to suddenly grasp at you to prevent himself from falling off a cliff, at once risking you to similar harm and death, what would be your obligation to save him?
    If you chose to make an attempt at saving him but thereafter saw that you would almost certainly fall as well, would you be allowed to change your mind?
    Finally, after forcibly breaking free, after this person to falls to their death, should you be held liable? What was your intent in allowing the other person to die? What could you use as a defense?
    I see nothing in that situation that is remotely akin to pregnancy and abortion, so this is a red herring.

    In short, I see no reason why a state would go down the road you suggest when it has more straightforward ways of implementing its chosen policy on abortion. And the argument that abortion would somehow be protected by the second amendment under a self-defense theory is a complete nonstarter.

  7. #7

    Default Re: Abortion As Justifiable Homicide

    TaxingMatters, do you mean to say the most common pro-life demand– that state and federal constitutions are amended to include the unborn as legal persons– is totally moot? Including the unborn as persons would have no affect on existing statutes pertaining to violence?

    For some reason I'm thinking that if the unborn were legal persons, abortion would have to be counted as a homicide, not.. an abortion. What type of homicide then?

    As to state's individual powers to ban or endorse abortion rights, I would ask: where in history has the American government allowed the public to kill without any basis? Especially a targeted, innocent group? If the federal constitution included the unborn as persons, would a state really be at liberty to offer less protection in its own constitution?

    The right to privacy and bodily autonomy belonging the woman would have to be found to trump the unborn child's right to due process– that is, some articulated reason why it should die/be aborted. I don't think there would be quick agreement on whose rights should prevail. The unborn child, as a person, would now be able to rely on the State/gov't to demand some basic due process before its killing can be called lawful, no?

    That's where I'd suppose that a right to self-defense would better serve to mitigate the woman's rights with the unborn child's. If the pregnant woman perceives the unborn to be a threat to her life (a life which by definition includes freedom from involuntary servitude) she is within her right (of self-defense) to protect her life, limbs and property by knowingly causing the death of another person, her own child.

    I was really embarrassed when I failed to research a "right to self-defense" in relation to the 2nd Am. I don't feel quite so bad now seeing that most if not all US courts have extrapolated a right to self-defense (though not absolute):

    Quote: The Washington Constitution expressly secures a “right of the individual citizen to bear arms in defense of himself, or the state.” The court concluded that this provision and the Second Amendment “are most reasonably read not as creating a right of self-defense but as lending support to the existence of an unenumerated right to self-defense retained by the people or fundamental to due process,” though the court also noted that some other courts “have read constitutional guarantees of a right to bear arms as implicitly guaranteeing a right to self-defense." from https://www.washingtonpost.com/news/...=.8b451b7e05f7

    *I apologize if the term "non-consensual occupancy" is ill-fitting or perplexing, give me something better to describe the legal status of a fetus/unborn person participating in an unwanted pregnancy and I will use that.

    Also, if you're able, please provide a better analogy for an unwanted pregnancy than my "stranger grabs you before falling off a cliff" scenario.

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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    TaxingMatters, do you mean to say the most common pro-life demand– that state and federal constitutions are amended to include the unborn as legal persons– is totally moot? Including the unborn as persons would have no affect on existing statutes pertaining to violence?

    For some reason I'm thinking that if the unborn were legal persons, abortion would have to be counted as a homicide, not.. an abortion. What type of homicide then?

    As to state's individual powers to ban or endorse abortion rights, I would ask: where in history has the American government allowed the public to kill without any basis? Especially a targeted, innocent group? If the federal constitution included the unborn as persons, would a state really be at liberty to offer less protection in its own constitution?

    The right to privacy and bodily autonomy belonging the woman would have to be found to trump the unborn child's right to due process– that is, some articulated reason why it should die/be aborted. I don't think there would be quick agreement on whose rights should prevail. The unborn child, as a person, would now be able to rely on the State/gov't to demand some basic due process before its killing can be called lawful, no?

    That's where I'd suppose that a right to self-defense would better serve to mitigate the woman's rights with the unborn child's. If the pregnant woman perceives the unborn to be a threat to her life (a life which by definition includes freedom from involuntary servitude) she is within her right (of self-defense) to protect her life, limbs and property by knowingly causing the death of another person, her own child.

    I was really embarrassed when I failed to research a "right to self-defense" in relation to the 2nd Am. I don't feel quite so bad now seeing that most if not all US courts have extrapolated a right to self-defense (though not absolute):

    Quote: The Washington Constitution expressly secures a “right of the individual citizen to bear arms in defense of himself, or the state.” The court concluded that this provision and the Second Amendment “are most reasonably read not as creating a right of self-defense but as lending support to the existence of an unenumerated right to self-defense retained by the people or fundamental to due process,” though the court also noted that some other courts “have read constitutional guarantees of a right to bear arms as implicitly guaranteeing a right to self-defense." from https://www.washingtonpost.com/news/...=.8b451b7e05f7

    *I apologize if the term "non-consensual occupancy" is ill-fitting or perplexing, give me something better to describe the legal status of a fetus/unborn person participating in an unwanted pregnancy and I will use that.

    Also, if you're able, please provide a better analogy for an unwanted pregnancy than my "stranger grabs you before falling off a cliff" scenario.
    "Products of conception" .

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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    TaxingMatters, do you mean to say the most common pro-life demand– that state and federal constitutions are amended to include the unborn as legal persons– is totally moot? Including the unborn as persons would have no affect on existing statutes pertaining to violence?
    No, I am not saying that defining the fetus as a “person” would be meaningless. Let me first summarize the Roe v. Wade decision as that is important to understanding the law on abortion. The Court started by declaring that the Constitution’s implied right to privacy protected to a woman’s decision to have an abortion. “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” Roe at 153.

    Roe argued that this right was absolute and that the state could not impose any restrictions on it whatsoever. The state, on the other hand, argued that the state’s interest in protecting prenatal life was a compelling interest that trumps the woman’s right to privacy. The court rejected both of those absolute positions. Id at 156. Rather, the Court held that the state’s interests grew stronger as the pregnancy developed further along. At conception, the state has no real interest and could not restrict the right to abortion but near the end of the pregnancy the state’s interest is strong enough to ban the abortion outright. What other restrictions the state may impose before that time and when they may be imposed has been the subject of a number of other cases that have come up since Roe was decided.

    The court did state that if the fetus were a “person” within the meaning of the 14th Amendment that this would have changed the outcome of the case, i.e. the Texas criminal statute barring abortion would not have been struck down by the Court. The Court did not explain why this would be the case and indeed gave that point very little discussion. It didn’t need to do that since it held that a fetus is not a person. “All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Id at 158.

    The statement by the Court that the state would have prevailed if a fetus were a person for purposes of the 14th amendment is dicta since it was not a factor in arriving at the Court’s decision in the case. So technically it is not clear that simply changing the definition of person to include a fetus would indeed have had that result. But let’s assume that it would have changed the outcome as the dicta comment suggests. What does that mean? All that it means is that the Texas law would have been upheld, i.e. that the state had the right to outlaw abortion. It does not mean that the state would have been compelled by the Constitution to make abortion a crime. The Court pointed out that not all states made abortion illegal, and there has never been a suggestion that the Constitution would (absent the Roe decision) mandate that those states have such a law.

    That brings us to the present. If the Constitution were amended today to state that an unborn child is person within the meaning of the 14th amendment, we may infer that might overrule the Roe decision but, since the Court’s comment was dicta and the reasoning behind it was not explained, it is not completely clear that this would be the result. It might take years of litigation to sort that out. This is why I think abortion opponents would do better to simply seek amendment the Constitution stating directly that the Constitution does not protect a right to abortion. That would be the clearest nail in the coffin of Roe.

    But let’s suppose the amendment does indeed overturn Roe. What is the impact of that? Overturning Roe simply means that there is no protected right to abortion and that states would then be free to regulate abortion or ban it altogether. The immediate impact of that is that any state statutes still on the books that ban abortion or that would treat abortion as a crime of murder would now be enforceable and the state could prosecute those offenses, at least for abortions that occurred after the adoption of the amendment. Those states could, however, repeal those old laws if they chose to do so. Likewise, states that currently have no laws criminalizing abortion could adopt laws penalizing abortion but the Constitution would not compel those states to do that.

    It should be noted that the Constitution only expressly provides that the government may not deprive a person of life or property without due process. The Constitution does not itself ban private persons from killing another. That is instead done by the various federal and state statutes that penalize murder and other lesser offenses related to homicides. It is certainly possible that a state could repeal its murder statutes entirely. There is nothing in the Constitution that requires a state to have laws against murder or to prosecute offenders for violating the statutes.

    The one argument that I can see that might compel the state is one of equal protection. All persons are entitled to equal protection, so the issue would be whether there was any basis for treating an individual who killed a fetus (once it is defined as a person) differently than an individual who kills a person after that person has been born. I think that the state likely could justify differing treatment in its law in the case of an abortion since, as you point out, the fetus is inhabiting the body of the woman. That is a unique situation not found in any other situations involving the killing of a person. But that would be something that would have to be hashed out in litigation that would take years to resolve.

    The federal Constitution has never firmly been held to encompass a right to self-defense. Certainly it does not do so expressly. Any such right would have to be implied, and the case law is mixed at best on that. There is no well established case law that sets out what such a constitutional right might include. (The article you linked discussed a state court decision that rested primarily on state law and thus does not set precedent for federal law.) But let’s suppose that the Constitution does protect a right to self-defense. What would that mean, exactly? I think it is reasonable to say that the right would be interpreted similar to the right of self-defense under the common law and under most state statutes today. The right to kill in self-defense is extremely limited in the law and always has been. Take for example Colorado law. Colorado Revised Statute (CRS) § 18-1-704 states:

    (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

    (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

    (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or

    (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.

    In a normal pregnancy, there is no reasonable ground for the mother to believe the unborn child will imminently kill her or cause her great bodily harm. The unborn child is not committing a burglary or kidnapping so the other two exceptions are not applicable either. As the mother cannot reasonably claim to be at risk of immediately being killed or suffering great bodily harm she would not be justified in killing the other person (the fetus) under a claim of self defense. Your argument that it would be self defense is, in my view, an absurd stretch of the term far beyond its accepted meaning. I have no doubt a court would easily reject it.

    The argument of involuntary servitude fails too. First, it is not involuntary servitude. The Supreme Court has said that “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery.” Butler v. Perry, 240 U.S. 328 (1916) and that the term “necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process.” United States v. Kozminski, 487 U.S. 931 (1988). The fetus is not forcing the mother to work for it, let alone using any threat of physical restraint, physical injury, or threat of coercion. Whatever you might say about pregnancy, it is certainly nothing akin to the conditions of African-American slaves.

    Second, even if you think the mother is subjected to some kind of servitude, it is not involuntary. Indeed, it was not the choice of the fetus to be there in the first place. It was an act of the mother (and her sexual partner) that put the fetus there, and the mother’s body keeps the fetus there. Thus, unless the pregnancy was the result of rape, the child is there by the voluntary act of the mother. Women know (or should know) that is a risk any time they have sex. They may not have wanted to get pregnant, but they voluntarily took the risk in having sex anyway and assumed the burdens that go along with that. If abortion becomes illegal again, they will undertake the risk that they will have to see the pregnancy through to birth. Since the woman does that knowingly and voluntarily, there is no way that this is involuntary servitude.

    Third, even if it were involuntary servitude, the law does not give the slave a right to kill his/her master. There are other avenues of recourse for the slave to deal with that problem that do not involve killing anyone. This is not a situation that falls into self-defense.

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