ABC News.com story

The fetal protection law has created a disparity here in this case IMHO. Is the law really sayinig that one can get life in prison for killing for a fetus but not the other person becaus of their gender? Isn't that unfair? If one is innocent, then they both are innocent. If one is guilty ,the other is guilty as well. I don't buy this legal hairsplitting based upon what organs a person has or may not have.

Questions for debate:

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?

2.)Why shouldn't this law apply to the female as well?

3.)How can it be maintained that the girls actions or the boys actions solely caused the miscarraige?

1. Yes, it's a contradiction.

2. Because women do have a right to abortion. It would be better to rewrite the law to avoid this sort of problem in the future.

3. It doesn't have to be "solely" for it to be proecutable. Let's say that you and I jointly shoot an annoying boy band singer to death. It's impossible to say whose bullet did the actual killing, but that for some reason you're found innocent (it turns out you had a brain tumor which caused temporary inability to make moral judgments). It still makes sense to put me on trial for murder; what doesn't make sense is saying that because I acted with an accomplice, I can't be charged with murder.

Here's another contradiction: Why is it murder when a boyfriend tries to help bring about an abortion, but not when a doctor does the same thing? (Don't get me wrong, I think it was incredibly stupid of them to try to abort this way, rather than finding some way of having a doctor do it - although I say that not knowing the full circumstances, maybe they were genuinely unable to get a doctor's help. But although I think what they did was stupid, ti wasn't murder).

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There are two approaches to fetal-protection laws. The first approach provides special punishments for assaults on a woman which lead to involuntary miscarriage or abortion. The second kind, like this law, protects the fetus as an independent entity. Either approach would serve exactly the same function of punishing criminals who cause miscarriages while assaulting women.

In a country in which abortion is legal, it would make far more sense to have the first kind of fetal protection law than the second; and if we had the first kind, then this case wouldn't be prosecutable, since what happened here was not an assault on the woman. But instead we have the second kind, which - as you correctly point out - contradicts the status quo of legal abortion.

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?
Of course.

2.)Why shouldn't this law apply to the female as well? I think that the question is backwards here. Why doesn't the law protect the man from imprisonment for performing an abortion? If a doctor did this, there would be no life imprisonment for him/her. Maybe you fine the guy for practicing medicine without a licence? But life in prison! Shouldn't we be able to lock up every abortion doctor then too?

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?
I would go so far as to argue that the law in question is unconstitutional. The woman has an established right to an abortion. She requested an abortion from her boyfriend, who provided it. He is guilty of practicing medicine without a license -- nothing more.

2.)Why shouldn't this law apply to the female as well?
It cannot apply to the female because she has a right to an abortion.

3.)How can it be maintained that the girls actions or the boys actions solely caused the miscarraige?
This is irrelevant to the issue. Actually, her attempts to abort the fetus also constitute practicing medicine without a licence, so they should both pay the appropriate penalty for that crime.

I would like to add an addendum to this question....

As heinous as I think this is.... under the law he should only be charged with practicing medicine without a license. As abortion is legal in the state of TX.

But what if she had not wanted to get an abortion and her boyfriend and kicked her stomach and caused her to abort... should he face the same punishment?

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?

There is a disparity on the application of judgement in this case. The law does not allow a person to allow themselves to be assaulted. What this man did was assault: he harmed this woman's body. The woman cannot tell the police to let the man go since assault is not a property crime it is a violent crime.

This man's assault on this girl (she is 17) resulted in the miscarriage. It is irrelevant (to the law) that the woman wanted to miscarry. It is irrelevant to the law that she wanted this guy to help her miscarry.

The law says that if an assault results in a miscarriage, then the perpetrator is guilty of a crime.

The woman may be guilty of conspiracy or endangerment or some other crime, but not of assault and therefore not of fetal death.

2.)Why shouldn't this law apply to the female as well?

Under the current definitions, she did not commit assault and therefore could not have killed her fetus. Had she miscarried due to illness or self harm, then no penalty would apply since that is not what the law says.

3.)How can it be maintained that the girls actions or the boys actions solely caused the miscarriage?
His assault contributed to the death of the fetus. Her actions are judged by a different standard because the action was against herself.

Tragically, if she had wanted an abortion, she should have gone and gotten one.

An assault is not a medical procedure. An abortion is.

I think that is the point of the fetal protection law. To protect from unwanted attacks on the child. If this act were not consensual, then the man getting life makes perfect sense. The pregnancy being wanted makes the act murder in many states. The pregnancy being unwanted under the federal law makes the act an abortion.


Amlord, by the straight forword legal definition of assault, you are correct. But there are always exceptions. Boxing is an example that jumps readily to mind. By the strict legal definition of assault - threatening of or physically harming another person, all boxers could in theory be charged with assault. Why aren't they? Because the other person has agreed to the attack.

I guess you are in favor of repealing spousal abuse laws where the victim refuses to press charges?

An abortion is a medical procedure, not a kick in the stomach. This guy could have seriously hurt this girl and then what would we be talking about: what an idiot the guy was. The fact that the girl wanted to be assaulted is irrelevant in the eyes of the law.

Point taken. There is a difference between literally asking someone to attack you and being afraid to press charges though.

OK. This guy committed assault, and the exemption for boxing will just have to remain a mystery. When has an assault charge, where the other person was not seriously hurt, warranted life in prison?

Why is it irrelevant to the law that she wanted this guy to help her miscarry? Do you think it should be?

If we're going to use the reasoning the authorities have in this case, really they should've charged this guy with practicing medicine without a license. She's safe because she has a right to have an abortion, and if we're going to call what these kids did an 'abortion' then what he did wasn't murder; he was performing an abortion.

So either it was an act of violence or it was a medical procedure performed by a couple of teenagers; it can't be both

Exactly Solanio. And welcome. If what this man did is to be prosecuted as assault, what stops the authorities from prosecuting doctors for assault when they perform an abortion. Or chemotherapy for that matter. You are technically assaulting the individual with those procedures.

What differentiates these acts from being violence or a medical procedure? It must be something or you are opening the door to all types of litigation. The only thing that I can find is the consent of the individual to be (technically)assaulted.

Do you really think that stomping on someone's stomach (for whatever reason) is a medical procedure?

Doctors follow a code of standards. There is an established practice of what constitutes "medical procedures". This ain't it, even though the results were similar to an abortion.

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?

Big time! This whole case is absurd. We have a law in place that protects an unborn child. Obviously, the only exception to this is a legal abortion. Hence, since we are not talking about a legal abortion and both the woman and the man attacked the child in the womb, they should both be held accountable.



2.)Why shouldn't this law apply to the female as well?

It should. There is a lot of tension between the pro abortion crowd and those that seek to protect unborn children from violence. The former take bizarre positions like opposing "the Laci Pederson law" because they fear that it will undermine the view in the law that the fetus is not human. I mean, how can we condone murder via abortion of a fetus, and then put someone away for life for trying to "murder" a fetus like this?

Although, interestingly, I believe a moral distinction can be made between abortion and murder. Most (if not all) people who believe that abortion should be very restricted (only to save the life of the mother) would never support a law that permitted a woman to be prosecuted for murder for having an illegal abortion.

It could also be argued that a woman always has complete dominion over her body even when she is carrying another human being. But the result is still the same, the child is killed.

Ultimately, if we are going to make an exception in this case for the mother, the same needs to apply to the father.

I say in this case, either they both get prosecuted, or neither of them do.

As more fetal protection laws are adopted by the states, the more Roe stands the chance of being overturned. Part of the reasoning in Roe was that there were not laws that legally defined a fetus as being human and capable of being murdered. Fetal Protection laws do this.

As for this case. Charge the man with assault and practicing medicine without a license. Abortion was the woman's desired end, so no murder was committed under the law. Stomping on her stomach, however, endangered the life of the woman. Even if she knew or even wanted it to happen, this man should have known better. Currently, however, it is not a crime to assault one's self -- unless it is a suicide attempt -- so the woman should not be charged with a crime. She should, however, look into getting some serious therapy. She's got to have some serious issues to even contemplate physical assault as a form of abortion.

I pretty much agree. Putting aside moral judgments concerning abortion, this makes absolutely no sense. It would be a completely different situation had the boyfriend done this without the mother's consent. However, this was her idea. While it was incredibly stupid for them not to go to a doctor, they in essence did the same thing a doctor would have done, though in a cruder and more barbaric fashion. Yet, the boyfriend gets life in prison and the mother isn't even prosecuted??

I think they should both be charged with a misdemeanor of some sort, but as long as abortion remains legal, charging anyone who does this voluntarily and without a doctor's presence a murderer is simply ridiculous.

So the code of standards is what separates a doctor's abortion from assault. Fair enough. And consent does not matter. I have a serious problem with this. If consent does not matter, then boxers are all guilty of assault. Lets lock Tyson back up. So are football players. Warren Sapp, you have the right to remain silent. Lets not forget Daren Erstad for running over Estrada the other week. But lets make an exemption b/c there are rules to the games they play. OK, what about actors. I herby call Adam Sandler to the stand to testify about his involvement in falling on an innocent woman's boob in the movie Billy Madison. Assault is the charge. Her consent is irrelevant. While we're at it, any remaining Stooges still alive? Lets get them. And don't forget Brad Pitt and Edward Norton for their involvement in Fight Club. Kiss slapstick goodbye. I'm sure there are some odd acting rules that we can overlook these crimes though right? OK, anybody like S&M? S&M = Assault. Shoot, the first time a woman has sex she is likely assaulted. It probably hurt, and she may have bled. Assault! Consent is irrelevant.

I'm sorry for being crude and a bit of jerk about this, but the law that convicted this man do not specify that the doctor's code of standards is exempt. Nor do they exempt the activities above. That is my point here. You are setting a precedent that will allow some gunhoe sheriff and attorney to haul a doctor in for performing an abortion. If consent matters though, all of this goes away.


I'm with you Entspeak. This case will be used to attack Roe later.

Since Greek times the law has always taken into account the intent of the accused. We now call that notion "criminal intent" and I was under the impression that, to be convicted of a crime, the accused must be demonstrated to have had criminal intent.

For example, if I take very careful aim with a gun at what I think is a dummy model and shoot it through the heart, and then discover that it is a real human, then I cannot be convicted of murder, because there was no criminal intent. I can be convicted of manslaughter or some lesser crime predicated on the determination that I acted with inadequate regard for the safety of the victim. But if, in some highly contrived scenario, I can establish that I demonstrated reasonable regard for the safety of others, then I will not (or should not) be convicted of any crime.

The same principle applies here. Clearly, there was no criminal intent; the boy sought to assist his girlfriend in an abortion. Her desire to obtain an abortion was not illegal. He did demonstrate criminal intent in his acquiesence to a medical procedure that was not legal, and for that he should be held accountable. But holding him accountable for the death of the fetus is not proper; the fetus' life was already forfeit upon the decision of the mother to have an abortion.

It can be argued that stomping upon a woman's stomach is not a recognized legal procedure. Indeed it is not -- but the legal status of stomping upon a woman's stomach is not the issue here. The issue is whether his frame of mind was criminal. Clearly, he honestly believed that stomping on his girlfriend's stomach would have a salutary effect upon her. It is arguable that he should have known that stomping upon her stomach would not produce desirable medical results, but then, I'm not sure that I would hold a 19-year old to that standard of education. Most people have some pretty strange notions of medical procedure. I didn't discover until I was 23 years old that gangrene isn't green. I'd hate to go to jail for life for that little misconception.

[quote=Amlord,Jun 9 2005, 07:35 AM]
[quote=Just Leave me Alone!,Jun 8 2005, 04:36 PM]

Do you really think that stomping on someone's stomach (for whatever reason) is a medical procedure?

Doctors follow a code of standards. There is an established practice of what constitutes "medical procedures". This ain't it, even though the results were similar to an abortion.

[/quote]

Either side of this argument is really indefensible here. My point is that prosecuting the male and exonerating the female is ridiculous -- both or neither is the only sane course here. Personally, I'm disgusted by the whole affair but from a societal point of view what is the message we're sending here? Girls, kill your own babies and leave your boyfriend out of it..? If the female is free from prosecution because punching herself in the stomach is an 'abortion', then why is the male doing the same thing not also performance of an 'abortion'?

It's grotesque but it's a fair example of justice gone far, far awry no matter what side of the issue you fall on!

1.)Is the disparity between life in prison for the male and "right to abortion" for the female contradictory?

Of course it is, two people commit the same actions and one is immune to prosecution?

2.)Why shouldn't this law apply to the female as well?

Simply because the mother has a right to an abortion. Where this right is vague is that they should have put in "by a licensed physician." I read this story a few days ago, and I think they did this because it was passed a certain period were the abortion was no longer viable or legal. Maybe she should be prosecuted under that law at the very least.

3.)How can it be maintained that the girls actions or the boys actions solely caused the miscarraige?

I don't really think it can be. From what I remember of the article, the link is down at the moment, the girl was doing things like running full speed into a wall. Thats about the same force in my opinion. The only thing that saved this girl from prosecution is her right to an abortion, if the man had a say in abortion he would have escaped prosecution as well. (But that was another debate.)

I was with you, until you got to the part about prosecuting her. I figure, if a person who acts as her own lawyer has an idiot for a client (which isn't necessarily true, give that public defenders often have 200 cases at any given time, while the self-appointed attorney has one!), then a person who acts as her own doctor probably has an idiot for a patient in many cases, too, but it shouldn't be illegal to be an idiot when the only person you're going to hurt is yourself.

Is that illegal? Does anyone know if I can be charged with practicing medicine without a license if I decided to stitch up my stubbed toe, rather than go to the doctor (I wouldn't do it, I'm a wimp, I was just asking!)

Can the hiker who was trapped under a boulder until he sawed off his own arm a couple days later technically be charged with practicing medicine without a license? What about the woman who almost died of pneumonia on a plane flight because she was treating herself with herbal medicines?

Good point; self-treatment is also anybody's right, and it's impossible to draw a line between reasonable self-treatment and unreasonable self-treatment. After all, a doctor must respect the patient's wishes even when the patient's wishes are to his overall detriment.

Thanks for catching my error! I learned something useful today.

You're welcome. I learn a lot here, happy to know that, at least once, I've returned the favor!

Although I suppose a woman can be arrested for carrying out an illegal abortion (for example, because she is at a late stage of pregnancy), just as a doctor can. And it certainly wouldn't be fair to arrest him under that sort of law, and not her!