Fetus Follies


New at Reason: Cathy Young explains why the pro-choicers blew it on "Conner's Law."

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  1. “Conner’s Law,” eh? How sickening. I’ve always believed you can get any piece of legislation passed if you name it after a child. How about a law gutting the First and Fourth Amendments and tossing innocent citizens into the can indefinitely without trial? We’ll call it “Timmy’s Law.”

    Can’t miss.

  2. I believe that law is already called the “PATRIOT Act”.

  3. Maybe it was bad PR, but the pro-legal-abortionists were right on principle. It’s ridiculous to charge someone with a crime against someone who doesn’t exist. OTOH, it makes perfect sense to criminalize the killing of a fetus as a crime against the woman carrying it.

  4. This is one great article. I’ve been saying for years that the wacko-extremist on both sides of the issue have done a miserable job of misframing the issue.

    We now, more or less routinely, save former fetuses (is that feti?) as underdeveloped as 5 months. When you can bring a 5 month old fetus to development, that should skew the argument away from the pro-choice to pro-life.

    I do not know how I feel about when life begins. As a devout Christian with an enormous respect for science and years of scientific training, I wrestle with the issue from both a scientific AND philosophical perspective.

    But even the hardest line pro-choicers have got to respect that medical science has muddied the waters for the abortion rights cause.

    Simply put, how can you save the life of a 5 month old fetus and bring it to personhood merely by taking it out of the body and then make the case that it’s O.K. to abort a five month-old fetus simply because it wasn’t wanted?

    I realize there are a host of other issues involved such as birth defects as well as others. Nonetheless, Ms. Young is correctthat the pro-choice crowd was its own worst enemy on this one.

  5. At least they’re not calling it “Baby Connor’s Law.” Personally, I think the kid had it coming.

  6. There seems to be a misunderstanding about what personhood means as applied to the fetus. For instance, fyodor argues that charging someone with a crime against someone that doesn’t exist is silly. Sorry fyodor but that fetus DOES exist, hence its very physical presence within the womb. The reason that abortion is legal is because according to the Supreme Court, a fetus is not considered a “legal” person in light of the Constitution. Since the Constitution seems to only address people or persons post birth, then by some wave of the legal wand, fetuses are not considered “persons,” but this is only in the legal sense. And since they are not legal persons they do not have the same protections that the rest of us post birth have.

    So, fetuses do exist and under the legal law constructed in Roe v. Wade, achieve legal personhood at birth, whenever that may be, with all the full protections of the Constitution at that precise moment. Hope that clarifies things so as to lead to intelligent, thought provoking debate.

  7. Re: 5 month fetus

    Every dollar spent on a premature baby is a dollar that’s not spent on a fully functioning human. Until everyone in our country is provided for medically premature babies will remain a luxury. That sounds harsh but we shouldn’t even be discussing saving premies until we have a surplus of medical resources. Hand-wringing about premies is a cop-out.

    If you want to save your premature baby take out a mortgage- don’t make others bear the burden of your conscience.

  8. My question about the law is if one kills a pregnant woman, but she is not obviously (let’s say 2 months), does he get tried for both? If yes, then if her murder was 1st degree, was the baby’s murder merely manslaughter? Or is the baby’s murder a sentencing of equal or greater value?

  9. Mo,

    I think that depends on whether the murderer knew that she was pregnant. If so, a separate murder charge would make sense, as the killing of the fetus could be premeditated.

    However, if the perpetrator did not know she was pregnant, I think the most you could get would be a separate charge for manslaughter. Though Timothy McVeigh was charged with murder for the deaths of many people he technically didn’t know were in the Federal Bldg

  10. Viability OUTSIDE the womb is the usual criteria in determining what is a (potential) person and what is an organism fully dependent upon its host to survive. Just because it has human DNA, it isn’t necessarily a person (yet). Reasonable people favor the life and rights of an ACTUAL person over those alleged rights of a POTENTIAL person. Emotional people see it the other way around.

  11. I am totally pro-choice but at the same time I support this law. Personally, I’d rather be dead than a mother, but I can understand how other women feel differently, and dammit, if I am seven months pregnant and looking forward to mommyhood and then some sonofabitch attacks me and I lose my baby, why shouldn’t he suffer a might worse fate?

    Why not view this the way we view the sex-rape dichotomy? If the woman consents it is legal; if she doesn’t it isn’t. Thus if a woman voluntarily gets her fetus removed there’s no crime; if she loses it involuntarily because of some asshole then there is.

    As for the people who say it’s unfair to the poor criminals who thought they were “only” assaulting a regular woman, not a pregnant one: tough titty. If a guy’s going to run around assaulting women he’s just going to have to live with the risk that she might be pregnant felony fodder, not a misdemeanor mama.

    Think of it this way: if I beat up Mo, and it turns out he has a heart condition and drops dead from a beating that would merely incapacitate most people, I still get manslaughter rather than assault, even though I honestly didn’t know I was going to kill him.

  12. If penalities for speeding in a DOT work zone double, then why not the penalties for killing a pregnant woman double? I am of the 80% who believe killing a fetus requires extra time, but I am also the roughly 55% who believe abortion should remain legal, you know what they say about prohibition of any sort! I will even go so far as saying killing a nun or priest should be double the penalty, and I am not all that religous. I just recognize when a blow is a “low blow.”

  13. I don’t understand. The extremists lost because they were not willing to compromise. Yet, Feinstein’s bill (a compromise) only failed by 2 votes. The pro choicers were backed into a corner and they lost narrowly. I guess this is not as an exciting conclusion as the one Ms. Young proposes.

  14. Mark,
    Feinstein lost because she would not acknowledge the elephant (or fetus) in the room. Her amendment said that “interfering with a pregnancy” would bring about all the nasty felonies. So if the baby was merely made retarded by the attack and not killed, nothing would happen. There’s a good article on Slate that says the same thing Cathy does, but highlighting different points.

    Put me in the group that sees no problem with being pro-choice and also pro-increased penalties for fetal assault.

    Me? Beat up by a girl? Unlikely. 😉

  15. So, what happens if mom and baby are murdered on the way to the abortion clinic?


  16. Mudflap-

    Here’s a better one: What if the woman has second thoughts just as the anesthesia starts to take effect (i.e. she’s unable to revoke her consent), and at that moment a “pro-life” sniper kills the doctor? 🙂

  17. Anonymous,

    I didn’t say the fetus doesn’t exist. You must be stupid to think I’m that stupid! Uh…sorry, that was my inner Jean Bart speaking! Anyway, since you state yourself that the fetus is not legally a person until birth (well, actually until viability), you are confirming my point. I suppose to be more exact, I should have said that the fetus does not exist as a legal person. And for that reason, charging someone with a crime against the fetus is ridiculous.


    Like I said and like Simply Put said, why not make it a greater crime against the woman? Seems that would make everyone happy, except those who want to politicize crimes against women.

  18. Mo,

    Unless, of course, she has a baseball bat and hits you from behind.

  19. Fyodor-
    Fine by me; charge the asshole with the crime of killing that woman’s child. From the woman’s perspective that’s what he did, even if she’s only four weeks pregnant and nobody could possibly have known it to look at her.

  20. Here’s the crux of the issue:

    The law allows for separate charges to be filed on behalf of the fetus as a wronged party. Why, instead of creating a legal status for a fetus as a party in a criminal lawsuit, couldn’t the law instead provide a separate and more severe set of punishments for crimes against pregnant women (much as there are for crimes against the elderly)?

    Wouldn’t that accomplish the same ends, i.e. increasing penalties for killing or injuring pregnant women and, by so doing, killing or injuring the fetus in her?

    But no…it HAD to give some package of rights to the fetus, and thus open the door for defining the start of life as conception (a clearly ambiguous “moment”), with rights and privileges beginning at that moment.

    That not only lays the groundwork for dismantling a woman’s right to choose, but it creates an environment in which women will be able to be held criminally responsible for any harm that befalls the children they’re carrying in them, even if they’re not yet aware they’re pregnant (for instance, if she were to, say, take lots of drugs, causing a miscarriage, before she’s aware of her pregnancy).

    After all, if that fetus’s death is grounds for criminal punishment if caused by someone outside the woman, how can it not be grounds for criminal punishment if caused by the woman herself? Whether intentional or caused by neglect, would she not still be criminally responsible?

    Yeah, the party of small government my ass. Can you imagine the enforcement of all the natural extensions of this garbage? I guess this is how you stimulate the economy: create an infrastructure so necessarily enormous that it employs ever greater numbers of people every year. Who needs rights, so long as there’s a desk to sit behind, eh?

  21. It seems that most (certainly not all) opposition to this bill is rooted not so much in objection to its substance as in suspicion of the ultimate motives of its proponents. It was the same case with the late-term abortion ban. Given that many militant pro-lifers tend to trumpet this sort of legislation as a “victory for the sanctity of life”, perhaps that suspicion is warranted.

    I think it is possible to not be opposed to this particular bill in principle, but to oppose it nonetheless because it gives a foothold to those who would outlaw abortion completely. That pretty much describes the way I feel, anyway.

    Simply Put and fyodor suggest that the the same end could be accomplished by making a crime against a pregnant woman worse, without making it a crime against the fetus per se. I’d be OK with that if it didn’t strike me as being a bit too close to the logic of hate crime legislation.

    Maybe a better approach would simply be to allow juries and judges to impose harsher sentences on those convicted of assault/battery/murder on a pregnant woman. I think most jurors would be inclined to do that anyway, without codifying any requirement to do so. I certainly would if I had the opportunity.

    And isn’t that already the case?

    If it ain’t broke…

  22. “It seems that most (certainly not all) opposition to this bill is rooted not so much in objection to its substance as in suspicion of the ultimate motives of its proponents.”

    Which is not exactly a groundless assumption considering that the law is largely symbolic no matter what. As a change only in federal statute, it would apply only to violent assults that take place on federal lands or in government buildings, none of which is very likely to occur anyway.

    So unless Laci Peterson was killed in a National Park, WTF does she have to do with this legislation?

    The real issue is that politicians have now started making up laws named after hyped-up media stories like the pointlessly over-reported Peterson case and the “Amber” alert, which is activated seemingly for every local custody dispute gone bad. Oh well…

  23. I’m all for attempts to figure out when a fetus becomes a rights-bearing person, but using viability outside the womb is a poor criterion. It’s likely that we’ll eventually have artificial wombs where a baby can be brought to term all the way from conception. At that point, a fertilized egg would be viable. If human cloning technology develops as well, then any human cell could be considered a viable human being. The point is that viability is a function of *technology*; it seems much more sensible to infer personhood from sentience or something like that.

  24. thoreau,

    I think that stand qualifies you for the Supreme Court! (a la Clarence Thomas!) 🙂

  25. I’m not sure how someone could ethically disagree with abortion, but think it should be legal. On what grounds do they find it unethical other than if they found it to be the killing of a human? If they don’t believe abortion is killing a human, why would it be unethical?

  26. Wellfellow-

    I suppose one could say “Well, I’m not 100% certain where I stand on the status of a fetus, but it seems likely that it’s in some sense human, so I oppose it personally. But because I’m not really solid on this, I don’t want my tentative conclusions to be law.”

    Or one might see abortion as an abhorrent act only taken by people in desperate circumstances, and decide (however rightly or wrongly) that he/she can’t support incarcerating somebody for it.

    Again, I don’t necessarily take either one of those stances. Remember, I came out a few posts ago and declared my position to be “Aw, fuck it, I don’t care one way or another!” But since it is such a controversial issue, I try to comprehend the motives of people on various sides of it, so I can regard them as honest human beings rather than as enemies. (Maybe the pro-life and pro-choice sides should both try that some time, instead of demonizing one another.)

  27. “It’s ridiculous to charge someone with a crime against someone who doesn’t exist.”

    Yes it would be, unfortunately, in this case, it is equally ridiculous to claim that the unborn child does not exist.

  28. Having just read fyodor’s explanation about legal status, let me say: the legal status of an unborn child as a non-person seems to only be justified as a rationalization for legal abortion. There is no logical reason for it.

  29. Cathy Young writes, correctly, that “the semantics matter.” But she accepts the standard media dichotomy between “prolife” and “prochoice” without a question. The anti-abortion lobby scored a big publicity coup by getting the media to accept their claim that theirs is a “pro-life” position, which implies that abortion is “anti-life.”

    Choice is something which living beings, not corpses, do. The idea that life and choice are opposed should be self-evidently silly. The idea that the abortion debate is over whether people should live or have choices is worse than silly.

    On the other side, so-called “pro-choice” liberals often want to take away people’s choices in many other areas (e.g., John Kerry’s compulsory national service scheme). Their belief in people’s right to choose doesn’t run deep. But at least they are really taking a pro-choice position on this one issue.

    Challenging a bad idea requires challenging the rhetoric behind it. That means not passively echoing the slogans of its advocates.

  30. “The anti-abortion lobby scored a big publicity coup by getting the media to accept their claim that theirs is a “pro-life” position, which implies that abortion is “anti-life.”

    And the pro-abortion lobby scored an equally big coup by getting the media to accept their claim that their side a “pro-choice” position, despite the fact that the choice they support is killing a living human being. Almost all laws, by definition, restrict a choice of action. The question is: do the choices thus restricted do more to protect one party’s rights than limit another’s liberties?

    If you accept the self-definition of one side, but deny the other, you are coming down on the side of the former’s argument and disagreeing with the latter. Unless you prefer both sides defined in ways that they do not want: pro- & anti-abortion?

  31. MJ: I do not accept that a fertilized ovum is a “living human being.” Nonetheless, your suggestion of “pro- and anti-abortion” sounds to me like the most reasonable terminology. One could argue that being in favor of the right to abortion is not the same as being “pro-abortion” — some people oppose abortion on ethical grounds but believe it isn’t a proper subject for legislation — but as one-word descriptions, those are far better than the rhetorical flourishes of “pro-choice” and “pro-life.”

  32. G.Bruno,

    In your zeal you missed the point. And yes…your statement does sound harsh.

    For a second, put the financial cost on the back burner. Don’t worry…it’s not going anywhere.

    The point was that from most reasonable points of view, the fact that a 5 month old fetus can be saved intact as a whole person with intelligence makes the arbitrary line of birth as the establisher of legal personhood VERY arbitrary – if not downright capricious.

    It muddies the water and forces us to re-examine just what makes a person in the first place.

    Asked in another way, what exactly is the difference – if any – of a 5 month old fetus, 8 month old fetus or a newborn child if medical science levels the playing field for them by giving them all the potential for a reasonably healthy life?

    To sum up:
    For pro-lifers, life begins at conception.

    For pro-choicers, life may begin at conception but that doesn’t mean squat until the little fetus crosses the finish line/birth canal.

    For the law, as interpereted by Roe v. Wade the legal ramifications are almost non-existent until birth.

    For the law as interpereted by Connor’s law, there ARE ramifications if the intention was to have a child.

    For me, the ablity of medical science to save a 5 month fetus and have it become a person in the real AND legal sense means we probably need to revisit the issue and come up with a new determiner of what makes a person and when.

    If science is to be involved, the actual answer may be one that niether the pro-lifers or pro-choicers want to hear.

  33. It might be worth pointing out that until Medical Science asserted its authority, abortion was an entirely private matter, left up to the woman’s right to choose — ie, determination of whether the fetus was viable was a self-determination by the mother of whether the fetus had “quickened” or not [as in ‘the quick and the dead’, ie, had acheived the status of ‘life’].
    How would we be worse served if everyone butted out and left the decision to abort or not to the sole person it impacts, the mother?
    [NB, a fetus is not, and cannot be, a person; it lacks all the essential characteristics of personhood, see the voluminous works of the various ‘personalist’ philosophies, even including the horridly substandard work of Karol Wotyla]
    Could it be because nobody really believes in liberty for others, only for themselves?
    Shirley Knott

  34. Brian,

    Your point about “if it ain’t broke…” is well taken. After all, was there really some outbreak of crime against fetuses that called for this law?!? Were there people going unpunished or underpunished because of this glaring oversight in our penal code? Somehow I doubt it. Therefore it’s most likely clear that it was purely a political ploy with ulterior motives, not a good way to make law.

    Still, while maybe it’s a minor point, I can’t help but take issue with your comparison with hate crime law, just on its internal logic. The problem *I* have with hate crime law is not that it encodes aggravating circumstances but rather the type of aggravating circumstance, which deals with matters of thought and opinion and conscience (however reprehensible I may personally find the opinions in question). If snuffing a fetus adds to the very real harm done by a willful act, I’m okay with criminalizing it, or at least I’m not opposed to it for that reason anyway. But back to your other point, I don’t think I would back any law that’s not urgent and necessary to protect the citizenry.

  35. garym, et al,

    I prefer to say “pro-legal-abortion” and “anti-legal-abortion,” which I think gets straight to the heart of the matter. I admit that sticking the “legal” in there adds a degree of cumbersomeness, but I think it’s a small price to pay fo both being accurate and making it difficult for partisans to cry foul.

  36. “I do not accept that a fertilized ovum is a “living human being.”-garym

    Out of curiosity then: what is it? When does it become a living human being (since at some point, it does), and why at that point?

  37. fyodor–

    I guess the parallel I see with hate crime laws is not so much the issue of aggrivating circumstances either as the net result of creating a ‘protected class’ of people, be it homosexuals, ethnic minorities, or in this case, pregnant women. But yes, the internal logic behind both is not exactly the same…

    But again, I’m all for giving judges and juries lattitude to consider whatever they view as aggrivating circumstances on a case-by-case basis, and to let that be reflected in sentencing.

  38. Fyodor:
    {The problem *I* have with hate crime law is not that it encodes aggravating circumstances but rather the type of aggravating circumstance, which deals with matters of thought and opinion and conscience (however reprehensible I may personally find the opinions in question).}

    I think motive should be considered. There’s a difference, I believe, between beating up someone you know and who personally pisses you off, and beating up a stranger because he represents a group of people you despise. I think the second is more harmful to society.

    The problem I have with existing hate-crime legislation is the selective victimhood written into the law. Making it a crime to beat up blacks because you hate blacks, but not a crime to beat up nerds because you hate nerds, offends the equal protection clause.

  39. I’m all about life, liberty, and the pursuit of happiness.

    The pro-lifers have the life thing down.

    The pro-choicers have the liberty thing down.

    But both sides get so aggravated that they’ve forgotten the pursuit of happiness.

    Therefore, my stance on abortion is (drum-roll, please, as I finally break my silence): Aw, fuck it, who cares either way?

    This stance will enable me to pursue happiness unencumbered by the dilemma of life vs. liberty. The rest of the world can have it out and decide the issue one way or the other.

  40. MJ-

    The Onion once had a point-counterpoint of “Life begins at conception” vs. “Life begins at 40!”

  41. MJ: A variety of criteria could be applied. The most restrictive criterion would be “at birth.” The least restrictive criterion I’d consider at least somewhat plausible is detectable brain function. As a legal criterion, I’d go with viability not requiring heroic measures.

    The reasoning behind this is that a collection of cells which has no awareness and has never had any has no “self”, no consciousness of its own existence, and thus has nothing more to lose by death than the hair which I’m losing does.

  42. Good point, Thoreau, although, I would think that if one weren’t sure, one way or the other, they would err on the side of least possible damage. IE. if it is nothing but a cell glob, then you’ve infringed on someone’s rights, but if it is human, you’ve murdered someone. Also, one could argue that most crimes are abhorrent acts taken in desperate circumstances. I, too, am trying to comprehend motives, hence the confusion over the ethic/law paradox. If it should be legal, it is because it isn’t a viable human. If it’s not a viable human, than it is no more unethical to exterminate it than to remove a wart. If it is a viable human, than it deserves protection under the law. You can’t really have it both ways, desperate circumstances not withstanding.

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