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.

Some observations:

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?

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2 Responses to “California Penal Code Section 187”

  1. Naturallawyer Says:

    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?

  2. Kev Says:

    Read the code word for word. If a mother intentionally damages herself to cause an abortion, it is considered murder by this law. An abortion must be conducted by a person with a license to perform the procedure to be lawful.


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