DOUBLE murder?

Bill Glasheen · Post by **Bill Glasheen** » Mon Apr 21, 2003 7:02 pm

I decided to wait for the formal charges to come forth before posting this. And so it has passed.

Peterson charged with 2 counts of murder

Wow... When I first heard he was going to be charged with not one but TWO counts of murder, I was surprised.

First... What is the legal precedent for charging someone with murder for destroying a fetus? And if there is no precedent, what would be the justification?

I'm going to get the legal forum to link in on this so I can get legal as well as lay opinion here.

- Bill

RA Miller · Post by **RA Miller** » Mon Apr 21, 2003 8:01 pm

Bill-
Often "Two counts of murder" in a largely circumstancial case means that the prosecution has two theories that they will present as to how the crime was committed.

Rory

Bill Glasheen · Post by **Bill Glasheen** » Mon Apr 21, 2003 9:16 pm

Thanks, Rory.

Someone else sent me this...

California law permits a murder charge for a fetus if a pregnant woman is slain, even if the fetus is not viable, said Hallye Jordan, spokeswoman for the state attorney general. The law has been on the books for about 30 years.

Interesting. Considering Roe vs. Wade, is this something that would pass the scrutiny of the Supreme Court?

- Bill

Kevin Mackie · Post by **Kevin Mackie** » Mon Apr 21, 2003 9:55 pm

I just heard an atorney on the news give an opinion of why the NOW response to the double murder charge is illogical.

Regardless of anyone's opinion on abortion, it is only the woman who has the right to choose abortion over birth, not the man. Lacy had no choice in the matter, she was dead at someone else's hands.

My own feelings are that if the baby can live without the mother at any time, well... let me just say that it should have that right.

There is legal precedent for charging someone with murder when attempting an abortion of all things! It was in Boston, around 1976-1980???
Dr. Kenneth Edelin. I'll have to look into the case.

Found an excellent narative of the Edelin case here.

http://www.holysmoke.org/fem/fem0379.htm

Although the conviction was overturned by the SJC, it seems their motive for overturning the conviction was that there was no evidence that the fetus was "viable". Reading this as a layperson, it would seem "viability" is the key to the Peterson infant. And using the same logic as the Mass. SJC, "lacking a witness" to testify about the viability of the infant, then one could assume that an 8 month fetus is viable (premature delivery at 8 months is somewhat routine these days), and Mr. Peterson should be charged for that murder also.

Gene DeMambro · Post by **Gene DeMambro** » Mon Apr 21, 2003 11:00 pm

Hi Bill,

Roe v. Wade decision held that:

State criminal abortion laws, like those involved here...violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

But the decision further goes on to say that:

Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life

So the state does have in interest in protecting potential life, such as Laci Peterson's unborn child. As such, laws protectiing the unborn from assaults and murders are a natural extension of this interest. This interest stops when the women decides to voluntarily terminate her pregnancy.

Regarding the 'viability' issue, the court in 1973 said:

For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

So the court, like many other abortion laws decisions (dating back to the ancient Persians, believe it or not) clearly ruled that a viable fetus has more protections than one in earlier stages of development.

I pulled the quotes from The syllabus of the Roe v. Wade (410) US 113 (1973) decision.

So, in Laci Peterson's case, my guess is this would pass Constitutional scrutiny.

Regardless of anyone's opinion on abortion, it is only the woman who has the right to choose abortion over birth, not the man.

Very true. In fact the high court later ruled even husband notification laws are unconstitutional.

Helpful?

Gene

Gene DeMambro · Post by **Gene DeMambro** » Mon Apr 21, 2003 11:08 pm

Also, a recent state appeals court decision in Michigan ruled that a women can use the "defense of others" doctrine to prevent harm to her unborn and unviable babies.

The case is PEOPLE OF THE STATE OF MICHIGAN v. JACLYN LOUISE KURR.

Gene

Gene DeMambro · Post by **Gene DeMambro** » Tue Apr 22, 2003 4:21 am

Reading this as a layperson, it would seem "viability" is the key to the Peterson infant. And using the same logic as the Mass. SJC, "lacking a witness" to testify about the viability of the infant, then one could assume that an 8 month fetus is viable (premature delivery at 8 months is somewhat routine these days), and Mr. Peterson should be charged for that murder also.

Pretty much, Kevin. Part of the problem with Dr. Edelin prosecution was there wasn't agreement on how old the baby really was. It's important because the state can assert it's power to restrict abortions only after viability, and even then with an exception to preserve the life or health of the mother. And this is regarding voluntary abortions.

But the state has a legitimate interest in protecting the potentiality of human life. Forgetting the abortion issue for the moment:

Does this interest extend to people seeking to do harm to a fetus, regardless of viability (i.e. would the charges be the same if Laci Peterson was murdered only one or two months into her pregnancy)? What's the legal basis for such a law (which is Bill's question)?

Does this interest externd to people who unintentionally do harm to a fetus, regardless of viability (a drunk driver who kills a women and her 10 week old unborn)?

Gene

Bill Glasheen · Post by **Bill Glasheen** » Tue Apr 22, 2003 12:40 pm

Thanks, Gene. This is helpful.

I'm not trying to sway opinions on the pro life vs. pro choice issue. I just wanted to know what the legal basis was of the second murder charge (which, by the way, makes Scott Peterson eligible for the death penalty).

So it's obvious where the fetus is viable, as it was in this case. And what of the case of the drunk driver that kills a woman and her 2-month-old fetus? Am I hearing that this would NOT result in double manslaughter charges?

- Bill

Glenn · Post by **Glenn** » Tue Apr 22, 2003 2:11 pm

These state laws are not really contradictory to Roe Vs Wade, as the state laws of which I am aware specify the crime as death of the fetus only if in conjunction with another crime. Since abortion is legal at certain stages, it is not a crime and thus death of the aborted fetus does not classify as a crime in those cases...and thus it is doubtful there would be anything contradictory for the Supreme Court to clear up. The Nebraska legislature is working this year to enact a similar law.

Gene DeMambro · Post by **Gene DeMambro** » Wed Apr 23, 2003 4:07 am

Am I hearing that this would NOT result in double manslaughter charges?

My guess is it could result in double manslaughter charges, and these laws will withstand any Constitutional challenge. Since the state has in interest in protecting potential life, and that interest is the authority for any fetal death laws - except those those that ban protected abortions.

Gene

IJ · Post by IJ » Thu Apr 24, 2003 8:19 pm

I did a research project my last year of college in a biomedical ethics class on forced obstetric therapy. This isn't well known, but a number of women have suffered forced therapy for the good of their unborn child. This has included attempts to force blood on jehovah's witnesses, and forced surgery. The last big case I am aware of is that of Angela Carder. She was pregnant and dying of cancer and declined a c section, but one was court ordered. The baby died, and she followed within days, weakened by what I would consider forcible assault. She was a competent adult who had every right to refuse a medical procedure. I think it was GW med center that ended up losing a multimillion dollar suit in the matter.

It is my firm belief that a woman's ability to get pregnant should not render her incapable of making any decisions. Like any other competent adult, a pregnant woman should be able to make her own decisions about what medicines she takes, what surgery she has, whether she wants a glass of wine, etc.

Why does this matter? Well, in these forced therapy cases, the ordering judges basically used the state's interest in protecting potential life as the justification for the assault on the woman. Basically this all came from laaws limiting abortion. The reasoning would go, if a woman can't kill a baby under x and y circumstances, then it sounds like the state should be able to mandate a certain medication or hospital stay or procedure to prevent a similar harm. So women are confined to hospitals for diabetes care, or forced to have blood or surgery. And by extension, it's made sense to some that the state should also probably investigate what drugs a woman is taking, prosecute them for distribution, jail them prophylactically, etc, etc. One could argue an irresponsible woman might have a healthier baby if we jailed her and watched her diet, made sure she didn't have anything to drink, yadda yadda. It's surprising how far these theories will go given the lackluster intrest the state has in BORN children. Some troubles with the efforts:

--it's kinda tough to restrain someone for surgery. Looks bad, feels bad.
--the state hasn't made too much of an effort to prevent harms related to paternal indulgences (drugs, or not being there, etc) and it hasn't mandated fathers give up an organ to save a kid as it has mandated mom have a surgery
--making women feel like they're at risk of state action drives them away from care; it can also drive substance abusers away from care which they need more than punishment.
--autonomy is just number one in my book regardless of women's unique ability to harbor another person inside them

Now I agree that a woman that's assaulted who loses a fetus may suffer more than one that is just assaulted. That all makes sense--but the trick is to make sure there's no danger of the laws being misused as above. The state has interest in "potential life", but then there really are no lines in human life. Viability is a very fuzzy line and is being pushed back all the time. Why does the severity of a crime change dpending on a region's medical sophistication? Why is a non-viable fetus worth less? What abouut a woman that might be pregnant? Should we test bodies? Heck, egg or sperm is "potential" life, so how do we decide where this pnishment will end?

I'll go try to dig up the power point presentation or the original article in my files....

Gene DeMambro · Post by **Gene DeMambro** » Thu Apr 24, 2003 9:10 pm

The state has interest in "potential life", but then there really are no lines in human life.

Sure there are, according to the court.

From the Roe v. Wade decision:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators...in the Apportionment Clause...in the Migration and Importation provision...in the Emolument Clause...in the Electors provisions...in the provision outlining qualifications for the office of President,...in the Extradition provisions...and the superseded Fugitive Slave Clause...and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in early all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

All this...persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

However...

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer

I think it was GW med center that ended up losing a multimillion dollar suit in the matter.

Under those circumstances, as well they should have. Did they loose due to negligence, or did they loose do to assault, etc? Mass. General lost a BIG case in 1999 regarding forced treatment of an asthmatic (not pregnant, though).

Why is a non-viable fetus worth less?

Non-viable fetuses aren't worth less in fetal assault laws. But they are worth less in the abortion debate. So says the court.

Heck, egg or sperm is "potential" life, so how do we decide where this pnishment will end?

We determine this by weighing the rights of the potential mom, etc vs. the powers/interests of the states.

All laws must receive a sensible construction and may reasonably infringe upon a non-Constitutional right (such as forced vaccinations). The burden for a Constitutional right is much higher, as there must be a compellign reason to force something on someone. But it is not insurmountable. The question regarding froced obstetrical care is whether such cases are an abuse of power, or are arbitrary and oppressive, or are extreme.

Gene

Bill Glasheen · Post by **Bill Glasheen** » Thu Apr 24, 2003 9:40 pm

Good stuff, Gene and Ian.

Here's more interesting material from The Richmond Times Dispatch. It seem's from this article that it's a state by state issue. And when you view the Virginia law, you can see why I was puzzled by what was going on in California.

Peterson case may spur fetus rights
Abortion-rights groups skeptical

- Bill

Gene DeMambro · Post by **Gene DeMambro** » Thu Apr 24, 2003 11:49 pm

That all makes sense--but the trick is to make sure there's no danger of the laws being misused as above.

More, on this very issue, from Roe v. Wade:

...appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).

While we all have privacy rights, these rights aren't absolute, and are subject to certain regulation by The Man.

most...courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest,

All rights, including Constitutional Rights, may be limited when the state has a "compelling" interest to do so. And such regulations may not infringe upon these rights any more than necessary to advance the state's interest. This is why the Texas abortion statute was nulified. This includes, maybe. the rights or preganant women to refuse care. How far this power extends to pregnant women is the biggie Ian is asking.

Ian, have any of the forced obstetrical care cases ever reached a state or federal appeals/high court? What were the results?

Gene

Gene DeMambro · Post by **Gene DeMambro** » Sat Apr 26, 2003 1:34 am

Found this:

CALIFORNIA PENAL CODE
SECTION 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.

No where is viability of the fetus mentioned at all.

Gene