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.
1. Murder only applies to killing a human, not an animal or non-human.
2. If a man walks up to a woman and, say, cuts off her arm (or any other bodily “tissue”) but it does not result in her death, it is not murder.
3. A man who walks up to an unsuspecting pregnant woman and punches her in the stomach, intentionally killing her unborn child but not killing the mother, has committed murder under the statute, even if she had planned on getting an abortion. It is not merely a tort or the crime of assault and battery; it is murder.
4. 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.
5. If the pregnant woman punches herself in the stomach and kills her fetus, or if she asks a man to punch her in the stomach to intentionally cause the death of the fetus, it is not murder.
So, killing an animal or cutting off a human appendage is not murder, and killing a human being is murder. Killing a fetus is also murder, except when a pregnant woman decides for whatever reason that her fetus belongs with the categories of “animal” or “human appendage” rather than “human being”.
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? Does it make sense that it’s murder to kill someone else’s fetus, even if that person planned on getting an abortion anyway? When would that fetus transfer from “human being” back to discardable tissue? When mom makes up or changes her mind (unless someone else decides for her without her consent)?
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?