California Penal Code Section 187
September 5, 2012
Subsection (a): “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
Subsection (b) provides an exception for abortion consented to by the mother.
However, the following results: a man who walks up to an unsuspecting pregnant woman and punches her in the stomach, intentionally killing her unborn child, commits murder. Not merely a tort or the crime of assault and battery. Murder.
If the man punches a woman who is not pregnant in the stomach, it is not murder, and if he punches a pregnant woman in the stomach but it does not kill the fetus, it is not murder.
If a man walks up to a woman and cuts off her arm, or any other “bodily tissue” not resulting in a death, it is not murder.
If the pregnant woman punches herself in the stomach, or asks a man to punch her in the stomach to intentionally cause the death of the fetus, it is not murder.
So, in California: (1) Killing an animal is not murder. (2) Cutting off an appendage is not murder. (3) Killing a human being is murder. (4) Killing a fetus is murder. Except when a pregnant woman decides for whatever reason that her fetus belongs with categories (1) and (2) rather than (3).
As written, subsection (b) of section 187 is logically consistent with subsection (a) because subsection (a) expressly does not apply if subsection (b) applies. However, can the exception philosophically be reconciled with the rule? On what basis may a fetus be deemed the equivalent of a human being based on the intent of another person? Can a person truly decide and declare, based on any reason or no reason at all (i.e. randomly), whether another person is in fact a person or the equivalent of a person worthy of legal protection?
It’s one thing to attempt to justify legal abortions on the ground that an unborn child is not a legal person or the equivalent thereof. But wouldn’t that mean section 187 is incoherent? Would one prefer, in the name of consistency, to rewrite section 187 to honor the argument that unborn persons are not in fact persons, thereby recasting and/or reducing the criminal sanction against a man who walks up to a random pregnant woman and punches her in the stomach, causing an abortion? Is a “wanted child” more worthy of personhood and legal protection against killing than an “unwanted child”? Why?
September 5, 2012 at 3:22 pm
Incidentally, after reviewing my own post, I note that my question at the end, “Is a ‘wanted child’ more worthy of … legal protection” assumes that the purpose of the statute is to protect persons and fetuses, rather than to punish those who violate the statute. I usually prescribe to the latter theory, so perhaps my question to retributionists like myself should be, “is killing a ‘wanted child’ more deserving of punishment than killing an ‘unwanted child’?” Perhaps it is, but surely killing an “unwanted child” should not be exempt from punishment based on the whims of a third party, even the child’s own mother. We don’t exempt child abuse from punishment based on whether the parent gives permission to the abuser, right?