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StrangerThan -> RE: Religious Wrong gets smacked down again (9/4/2011 8:21:29 AM)
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quote:
ORIGINAL: EternalHoH
quote:
ORIGINAL: StrangerThan
The issue would be whether or not there was intent, or accidental in relation to an action otherwise intended to harm the mother.
If it was regarding the pregnant woman (not yet a mother, that term would be another false play on personhood for a fetus, like 'child' is), the best charge possible would be attempted murder of the woman. For charges of actual (successful) murder to apply regarding a fetus, it would still depend on the legal definition of when that fetus is a human being. If the fetus is not at that point, then no charge of murder would be possible.
I posted these before, but will do so again for clarity. Some states have added fetus to their definitions, but a good many of them don't like the idea of someone else killing the child, or fetus if that's the term you prefer.
Like I said, this has been up and down the line from local courtrooms to the Supreme Court.
Pennsylvania On December 27, 2006, in the case of Commonwealth of Pennsylvania v. Bullock (J-43-2006), the Pennsylvania Supreme Court unanimously rejected an array of constitutional challenges to the Crimes Against the Unborn Child Act, 18 Pa. C.S. Sec. 2601 et seq., including claims based on Roe v. Wade and equal protection doctrine. Although the law applies "from fertilization until birth," a convicted killer, Matthew Bullock, had argued that U.S. Supreme Court precedents allowed such a law to apply only after the point that the baby is "viable" (able to survive indefinitely outside of the womb). The Pennsylvania justices rejected this argument, stating that "to accept that a fetus is not biologically alive until it can survive outside of the womb would be illogical, as such a concept would define fetal life in terms that depend on external conditions, namely, the state of medical technology (which, of course, tends to improve over time). . . viability outside of the womb is immaterial to the question of whether the defendant's actions have caused a cessation of the biological life of the fetus . . ."Also: On January 24, 2003, in Commonwealth of Pennsylvania v. Corrine D. Wilcott, the Court of Common Pleas of Erie County rejected challenges asserting that the law is unconstitutionally vague, violates U.S. Supreme Court abortion cases, violates equal protection clause, and conflicts with state tort law on definition of "person."
Georgia A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit unanimously upheld the conviction of Richard James Smith, Sr., under Georgia's "feticide" statute. Smith argued that the law conflicted with Roe v. Wade, but the court rejected this assertion as "without merit." The court held: "The proposition that Smith relies upon in Roe v. Wade -- that an unborn child is not a "person" within the meaning of the Fourteenth Amendment -- is simply immaterial in the present context to whether a state can prohibit the destruction of a fetus." Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). Related state supreme court decision: Brinkley v. State, 322 S.E.2d 49 (Ga. 1984) (vagueness/due process challenge).
California In People v. Davis [872 P.2d 591 (Cal. 1994)], the California Supreme Court upheld the legislature's addition of the phrase "or a fetus" to the state murder law in 1970, but held that the term "fetus" applies "beyond the embryonic stage of seven to eight weeks." (California Penal Code 187(a) says, "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.") In People v. Dennis [950 P.2d 1035 (Cal. 1994)], the California Supreme Court upheld inclusion of fetal homicide under Penal Code 190.2(3), which makes a defendant eligible for capital punishment if convicted of more than one murder.
Texas In the case of Terence Chadwick Lawrence v. The State of Texas (No. PD-0236-07), issued November 21, 2007, the Texas Court of Criminal Appeals (the state's highest appellate court in criminal cases) unanimously rejected a convicted murderer's claims that the 2003 Prenatal Protection Act was unconstitutional for various reasons, including inconsistency with Roe v. Wade. In its summary of the case, the court explained that after learning that a girlfriend, Antwonyia Smith, was pregnant with his child, defendant Lawrence "shot Smith three times with a shotgun, causing her death and the death of her four-to-six week old embryo." For this crime, Lawrence was convicted of the offense of "capital murder," defined in Texas law as causing the death of "more than one person . . during the same criminal transaction." The court said that the abortion-related rulings of the U.S. Supreme Court have "no application to a statute that prohibits a third party from causing the death of the woman's unborn child against her will." The court noted, "Indeed, we have found no case from any state supreme court or federal court that has struck down a statute prohibiting the murder of an unborn victim, and appellant [Lawrence] cites none."
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