Abortion should have nothing to do with criminal law

[minkymurph]

There is only one argument which can be used to suggest it is not murder, the non-human human argument, that has been already been used to justify mass murder, persecution and mistreatment everywhere from (I invoke Godwin) to Stalin’s Russia, to slavery in the USA.

Not in criminal law. Mental impairment is a defense to murder in that the charge can be reduced to manslaughter.

 

[fix]

In reality, there is almost nothing separating them.

Now abortion can be, like some other forms of killing and murder, a morally complex thing. Therefore there is a number of possible situations to consider.

If, however, you murder someone so that you can live a more pleasurable or convenient life, what can be said to justify that?

There is only one argument which can be used to suggest it is not murder, the non-human human argument, that has been already been used to justify mass murder, persecution and mistreatment everywhere from (I invoke Godwin) to Stalin’s Russia, to slavery in the USA.

In general if there is a concern among some proportion of the population about mass murder, and the argument put forward by the state or “experts” is that the people being killed are not human anyway so it doesn’t count, you can pretty much bet that it will be seen as mass murder in the fullness of time. I would prefer not to be on the “they don’t count as human” side of the argument, myself.

You make good points. I find the idea that people do not know that a pregnant woman has a baby in her quite perplexing. Given that we spend billions of dollars a year on prenatal issues and there are all manner of plans that are made while pregnant and gifts purchased and what not it seems disingenuous to claim people in some way do not grasp that there is a baby present. Or, perhaps it is a baby when one wants a baby and it is not a baby when one wants to kill the baby? Whatever the psychological rationalizations there is no reasonable argument that can have it both ways.

People can lie to themselves but that cannot change the need for legal protection and sanctions.

 

[oldcatholicguy]

There are lots of differences. The reply was hyperbole to hyperole.

As to your example, murder itself is a term of criminal law. As to the reality, there is very little in common between a woman terminating her abortion and a murderer.

That’s part of the problem, the rhetoric.

Please enlighten me to how intentionally planning and causing the death of an innocent person for one’s own benefit (1st degree murder) has very little in common with intentionally planning and causing the death of an unborn child for one’s own benefit. Outside of the developmental age of the victim I see very little which is not in common between the two.

 

[minkymurph]

I would like to add consideration should be given as to whether proposed legislation should be of a retributive nature or a restorative nature?

Retributive justice focuses on punishing people. Restorative justice focuses on reform. It needs to consider if retributive justice - punishment - is the appropriate measure and will achieve its objective.

Retributive justice has its place in that certain crimes do warrant a punishment element, and serves its objective in that dangerous people cannot roam the streets posing a serious risk to society. In my view, the only people who should be locked up are people who pose a serious risk to society. One reason is the fact that incarcerating people places a financial burden on the state and ultimately, good old taxpayer. There has a been a big drive towards restorative justice in my part of the world for this reason. However, there are other reasons. One being young people who find themselves incarcerated simply learn to be better criminals in jail and the majority re-offend.

I don’t think every woman who has an abortion poses a risk to society that is serious enough to warrant a custodial sentence. It could be argued in terms of morality, in that abortion poses a moral risk, but who poses the greater moral risk? The woman who seeks an abortion, or people who make money from abortion?

On the other hand, there was in case in my part of the world recently where a woman was convicted of the murder of her new born baby. It transpired she had been having an affair for years, had had six abortions in total, yet managed another ‘unplanned’ pregnancy and so suffocated the baby when it was born. She had no children to her husband. I am more than happy to see retributive justice take its course in this woman’s case and pay taxes to maintain her incarceration. As such, there are occasions when the charge of murder and a custodial sentence may be warranted.

 

[minkymurph]

Please enlighten me to how intentionally planning and causing the death of an innocent person for one’s own benefit (1st degree murder) has very little in common with intentionally planning and causing the death of an unborn child for one’s own benefit. Outside of the developmental age of the victim I see very little which is not in common between the two.

To make my position clear I am not in favor of abortion. I don’t like to describe myself as ‘pro-life’ as a consequence of the negative interpretations associated with that terminology, but I would fall on that side.

I have to say though, it cannot be assumed that every woman has an abortion does so for the same reasons and in the same circumstances. I am not saying that makes it more acceptable. What I am saying is it cannot be stated every woman who has an abortion fully appreciates it is a death, and intentionally plans and causes it purely for their own benefit.

Lets be honest, the reason for categorizing abortion as 1st degree murder and consequently warrants a prison sentence is a religious one. That does not in itself mean it is wrong to categorize abortion as first degree murder. What it means is those who do not share our faith will not agree that it is. Telling them they should (not that I’m saying your doing that) will prove ineffective in addressing the issue.

As such, we have to deal with the situation as it is and not how would like it to be. My ideal scenario is a society were no woman would want or feel the need to have an abortion. I suspect my ideal is unlikely to be realized in the near future.

 

[SamH]

I am not saying that makes it more acceptable. What I am saying is it cannot be stated every woman who has an abortion fully appreciates it is a death, and intentionally plans and causes it purely for their own benefit.

Are you saying they are psychopaths?

If not for their benefit then why are they doing it?

 

[fix]

To make my position clear I am not in favor of abortion. I don’t like to describe myself as ‘pro-life’ as a consequence of the negative interpretations associated with that terminology, but I would fall on that side.

I have to say though, it cannot be assumed that every woman has an abortion does so for the same reasons and in the same circumstances. I am not saying that makes it more acceptable. What I am saying is it cannot be stated every woman who has an abortion fully appreciates it is a death, and intentionally plans and causes it purely for their own benefit.

Lets be honest, the reason for categorizing abortion as 1st degree murder and consequently warrants a prison sentence is a religious one. That does not in itself mean it is wrong to categorize abortion as first degree murder. What it means is those who do not share our faith will not agree that it is. Telling them they should (not that I’m saying your doing that) will prove ineffective in addressing the issue.

As such, we have to deal with the situation as it is and not how would like it to be. My ideal scenario is a society were no woman would want or feel the need to have an abortion. I suspect my ideal is unlikely to be realized in the near future.

Well as has been mentioned the law allows for various degrees depending on several factors. That is true for all types of killing and abortion should fall under that umbrella. Each case would be different. With that said though there is the argument that claims the women is never fully culpable due to various factors such as coercion or instability or undue pressure, etc. The problem some see with this reasoning is that it can apply to born children too. If a mother was coerced into killing her 5 year old how many would stand for that logic?

 

[minkymurph]

Are you saying they are psychopaths?

If not for their benefit then why are they doing it?

I don’t know how you get from ‘someone may not fully appreciate what a certain act entails,’ which is more or less what I wrote, to I am saying they are psychopaths.

Diagnosing someone as a psychopath would be beyond my area of expertise. If someone accused of a crime was a psychopath, and it is a possible an individual who has an abortion may be a psychopath as it is also possible they may not be, would be something for a court to decide based on medical evidence, and it would be for the court to decide if and to what extent that diagnoses should be taken into account.

That is something you would need to ask someone who has either had or is contemplating an abortion. I can’t be expected to explain why every or any woman would contemplate an abortion or have one. What I am saying is it cannot be assumed that every woman who has had an abortion did so purely for selfish reasons. In the absence of being able to read minds and hearts, unless we have not facts relating to particular individuals situation and circumstances, that is something we cannot know. Certainly some women may have abortions for selfish reasons and for there own benefit. However, it cannot be considered just to judge every individual accordingly.

 

[minkymurph]

Well as has been mentioned the law allows for various degrees depending on several factors. That is true for all types of killing and abortion should fall under that umbrella. Each case would be different. With that said though there is the argument that claims the women is never fully culpable due to various factors such as coercion or instability or undue pressure, etc. The problem some see with this reasoning is that it can apply to born children too. If a mother was coerced into killing her 5 year old how many would stand for that logic?

This is good reasoning and you make a very good point.

As you say, every case is different and as must be judged on it’s own merits. Courts must assess whether or not an individual is culpable and to what extent, and it is based on medical reports.

In UK law, coercion is never a defense to murder. It can be taken into account at the sentencing stage, but it is never permitted as a defense. It is a defense to manslaughter, but the courts apply a very strict criterion that must be satisfied before a defendant would be afforded the defense of coercion. It is up to the prosecution to determine whether to charge a defendant accused of killing someone with murder or manslaughter. Coercion is also a jury question and it is open to the jury to reject it as a defense. In which case, it may be open to them to find the defendant guilty of murder if they are so charged.

I’m not saying this law is perfect. I’m just explaining the legal reasoning behind the law.

 

[SamH]

I don’t know how you get from ‘someone may not fully appreciate what a certain act entails,’ which is more or less what I wrote, to I am saying they are psychopaths.

Diagnosing someone as a psychopath would be beyond my area of expertise. If someone accused of a crime was a psychopath, and it is a possible an individual who has an abortion may be a psychopath as it is also possible they may not be, would be something for a court to decide based on medical evidence, and it would be for the court to decide if and to what extent that diagnoses should be taken into account.

That is something you would need to ask someone who has either had or is contemplating an abortion. I can’t be expected to explain why every or any woman would contemplate an abortion or have one. What I am saying is it cannot be assumed that every woman who has had an abortion did so purely for selfish reasons. In the absence of being able to read minds and hearts, unless we have not facts relating to particular individuals situation and circumstances, that is something we cannot know. Certainly some women may have abortions for selfish reasons and for there own benefit. However, it cannot be considered just to judge every individual accordingly.

Given the weakness your claims I wouldn’t answer either.

 

[minkymurph]

Given the weakness your claims I wouldn’t answer either.

Fine - but perhaps you will have the courtesy to clarify what claims you are of the opinion I am making in what sense you believe them to be weak?

 

[ahs]

I would like to add consideration should be given as to whether proposed legislation should be of a retributive nature or a restorative nature?..I am more than happy to see retributive justice take its course in this woman’s case [the incident described] and pay taxes to maintain her incarceration. As such, there are occasions when the charge of murder and a custodial sentence may be warranted.

This is getting more into what the protection of law for the unborn would look like, or entail, as opposed to the OP stanging against whether the unborn should be protected in the first place. I think we can all agree [or most?] that “intent” should be a factor in how legal protection for the unborn is carried out, as well as the other factors that play into homocide cases already, leading to charges of manslaughter, degrees of murder, negligent homocide, non-guilt based on mental illness, etc…

Well as has been mentioned the law allows for various degrees depending on several factors. That is true for all types of killing and abortion should fall under that umbrella. Each case would be different. With that said though there is the argument that claims the women is never fully culpable due to various factors such as coercion or instability or undue pressure, etc. The problem some see with this reasoning is that it can apply to born children too. If a mother was coerced into killing her 5 year old how many would stand for that logic?

 

[oldcatholicguy]

To make my position clear I am not in favor of abortion. I don’t like to describe myself as ‘pro-life’ as a consequence of the negative interpretations associated with that terminology, but I would fall on that side.

I have to say though, it cannot be assumed that every woman has an abortion does so for the same reasons and in the same circumstances. I am not saying that makes it more acceptable. What I am saying is it cannot be stated every woman who has an abortion fully appreciates it is a death, and intentionally plans and causes it purely for their own benefit.

Lets be honest, the reason for categorizing abortion as 1st degree murder and consequently warrants a prison sentence is a religious one. That does not in itself mean it is wrong to categorize abortion as first degree murder. What it means is those who do not share our faith will not agree that it is. Telling them they should (not that I’m saying your doing that) will prove ineffective in addressing the issue.

As such, we have to deal with the situation as it is and not how would like it to be. My ideal scenario is a society were no woman would want or feel the need to have an abortion. I suspect my ideal is unlikely to be realized in the near future.

I have to say though, it cannot be assumed that every woman has an abortion does so for the same reasons and in the same circumstances. I am not saying that makes it more acceptable. What I am saying is it cannot be stated every woman who has an abortion fully appreciates it is a death, and intentionally plans and causes it purely for their own benefit.
You’re trying to mix theology with criminal law. A person’s state of mind or belief that their act is not a crime has no bearing on their actions actually being a crime or not. The only bearing it has on their culpability of the crime. If I believed that it was not a crime to kill a person of another race and/or did not know that it was a crime to kill a person of another race I would still be no less guilty of murder if I undertook such an act. As for the punishment side, as long as I am mentally fit my belief concerning the criminality of said act is irrelevant. Bottom line, the only people who can use “I didn’t know” or “I don’t believe” as a legit defense are those with mental health issues, and even these people are still charged with the crime.

Lets be honest, the reason for categorizing abortion as 1st degree murder and consequently warrants a prison sentence is a religious one. That does not in itself mean it is wrong to categorize abortion as first degree murder. What it means is those who do not share our faith will not agree that it is. Telling them they should (not that I’m saying your doing that) will prove ineffective in addressing the issue.
Please cite for me the other instances in which the intentional, planned causing of the death of an innocent person is not deemed murder or viewed as a crime. I have a feeling the closest you’ll be able to get is to cite pre-Civil War slave law in which a slave owner could murder his slave.

 

[SamH]

Fine - but perhaps you will have the courtesy to clarify what claims you are of the opinion I am making in what sense you believe them to be weak?

Your claim the women don’t have abortions for their benefit. Why have the abortion if it doesn’t benefit them?

The claim that they don’t know they are killing a living being? How can you have so little empathy that you can’t recognize life?

 

[minkymurph]

This is getting more into what the protection of law for the unborn would look like, or entail, as opposed to the OP stanging against whether the unborn should be protected in the first place. I think we can all agree [or most?] that “intent” should be a factor in how legal protection for the unborn is carried out, as well as the other factors that play into homocide cases already, leading to charges of manslaughter, degrees of murder, negligent homocide, non-guilt based on mental illness, etc…

To take a breather and a re-cap - the title of the thread is, ‘Abortion should have nothing to do with criminal law.’ In my view it should. The reason I say it should is because it can and is carried out unlawfully. Anything that is unlawful can potentially be subject to criminal law.

An abortion - lawful or otherwise - falls within the category of a medical procedure and one that involves human life irrespective of what one’s position is on the abortion issue. As such, it cannot be divorced from criminal liability. The alternative would be to deal with unlawful abortion via civil law which is unsatisfactory.

Thank you.

 

[minkymurph]

You’re trying to mix theology with criminal law.

That’s a fair comment. The reason for this is because of the intrinsic link between theology and the abortion issue. Meaning, the main reason we as Catholics object to abortion is because we believe life begins at the moment of conception, and the basis of that principle is our faith. It is very difficult to separate that belief from abortion legislation. If you have any suggestions as to how they could be separated, I would be happy to read it - and I mean that with the greatest respect.

A person’s state of mind or belief that their act is not a crime has no bearing on their actions actually being a crime or not.

Your right it doesn’t. However, culpability is a recognized legal defense.

If I believed that it was not a crime to kill a person of another race and/or did not know that it was a crime to kill a person of another race I would still be no less guilty of murder if I undertook such an act.

Again you are right. However, it killing a person of another race was not in law a crime punishable by the state, then you cannot be charged with murder. Such was the case in South Africa under Apartheid. The point I was making here was is what is known as the ‘fair warning’ principle, in that people should know what the law is and know what constitutes a crime. If they do not, then it would be unjust to convict them. As such, if people are taught and it is stated in law that under certain circumstances abortion is lawful, it would be unjust to charge them with the crime of murder if they have one. This comes back to the theological point I was making. The reason we believe abortion is equivalent to murder is not because the law says it is or because contemporary society sees it as the equivalent of murder, but because of our faith. This is why it is extremely difficult to reach consensus in regard to criminal liability.

As for the punishment side, as long as I am mentally fit my belief concerning the criminality of said act is irrelevant. Bottom line, the only people who can use “I didn’t know” or “I don’t believe” as a legit defense are those with mental health issues, and even these people are still charged with the crime.

Please cite for me the other instances in which the intentional, planned causing of the death of an innocent person is not deemed murder or viewed as a crime. I have a feeling the closest you’ll be able to get is to cite pre-Civil War slave law in which a slave owner could murder his slave.

I think you misunderstand me. I did not say at any time planning and intentionally causing the death of an innocent is not murder or viewed as a crime. Nor did I say there are occasions when the state or society at large has not viewed it as a crime.

What I did say at one point is that in UK law, causing the death of an unborn child as a consequence of murdering or seriously injuring the mother is categorized as manslaughter. The assailant can be charged with murder in the woman’s case, but not the unborn child - irrespective of what stage the pregnancy has reached. There is some debate in legal circles as to whether it should be open to the prosecution to charge with assailant with murder in relation to the unborn child or not.

The point I am making is in UK law, at present, intentionally causing the death of an unborn child as a consequence of recklessness, even when the person had the foresight to know death of the unborn child was virtually certain, the assailant cannot be charged with murder. The charge is manslaughter. I am not saying this is right, and there is some debate in legal circles as to whether or not the charge of murder should be open to the prosecution. However, that is how the the law (UK) stands at the moment and as such, it would be inconsistent to charge a woman who has an abortion with murder.

Further to this - and I’m not saying this decision was right - there was a case where a man who killed his baby son reduced from murder to manslaughter on appeal as in order for the conviction of murder to be safe, the death of child had to be virtually certain. The defendant threw the child across the room because he wouldn’t stop crying and died as the result of a head injury. I believe the case was Woollin (House of Lords) The charge was reduced because the court were not convinced the death of the child was virtually certain. Certainly it can be argued in the case of abortion death is certain. However, the reason I raise this point is if a woman who has an abortion was convicted of murder, there would almost certainly be an appeal and the charge may well be reduced to maintain consistency in the law.

 

[minkymurph]

Your claim the women don’t have abortions for their benefit. Why have the abortion if it doesn’t benefit them?

I did not make that claim. This is your interpretation of what I wrote. I did not say no woman has an abortion does so purely for their own benefit. What I said was it cannot be presumed every woman who has an abortion does so purely for her own benefit.

There are plenty of women in China that are not having abortions for their own benefit, and no doubt other countries too.

If you read Toni Maguires story you will see she did not have an abortion for her own benefit. She wrote two books. One called ‘Don’t Tell Mummy’ and the other ‘When Daddy Comes Home.’

The claim that they don’t know they are killing a living being?

Again, I did not make this claim. Again, this is your interpretation of what I wrote. I did say no woman knows this. I said we cannot assume every woman believes this to be the case. If abortion is legal and contemporary society promotes the view an unborn child is not a human life, we cannot assume every woman who has an abortion is convinced it is. I did not say they were right to think this. I stated we cannot assume every woman who has an abortion believes they are killing a living being.

How can you have so little empathy that you can’t recognize life?

How can you suggest I have no empathy and how can you interpret my posts to mean I don’t recognize the unborn as life? None of my posts suggested any such thing and it would take a vivid imagination to interpret them as such. Perhaps if you’d taken the trouble to read some of other posts I wrote as opposed to focusing on one sentence you didn’t like, and thought before jumping to wild conclusions as a consequence you wouldn’t find yourself in the position in which you are now - that of making an unfounded allegation of which my posts are are strong indication is completely untrue.

 

[SamH]

Your position gets weaker everytime you try to explain it.

 

[minkymurph]

Your position gets weaker everytime you try to explain it.

And what position is that? Given that from the wild accusations you have made it is obvious you haven’t a clue what my position is.

In addition, I was not explaining anything. I was clarifying as your interpretation of my post was a complete distortion of what was actually written.

I did ask you to afford me the courtesy of clarifying what you think the weakness are. The fact you have not afforded me that courtesy is an indication you have nothing to offer in terms of why this perceived position you seem to believe I hold is weak. If you had, you would have said it by now. You haven’t.

It would also appear your position is every woman who has an abortion does so purely for her own benefit. Note I used the word ‘appear’ as I believe in affording other posters the courtesy of giving them the opportunity to clarify their position, as opposed to letting my imagination run riot in terms of what I think they mean.

If this is your position, can you back it up with anything other than assumptions?

 

[oldcatholicguy]

That’s a fair comment. The reason for this is because of the intrinsic link between theology and the abortion issue. Meaning, the main reason we as Catholics object to abortion is because we believe life begins at the moment of conception, and the basis of that principle is our faith. It is very difficult to separate that belief from abortion legislation. If you have any suggestions as to how they could be separated, I would be happy to read it - and I mean that with the greatest respect.
Separating the two isn’t as difficult as you think-> godlessprolifers.org/home.html. I can even do it without touching on theology. The right to life is the foundation upon which all other rights are built from. If a person does not have the right to live, they also do not have the right to equality, health care, protection of the law, food, housing, education, and any other subject which requires an individual to be alive in order to partake of it or benefit from it. You can not logically argue that person X does not have the right to live, but does have the right to what is needed in order to live or a right for which being alive is the basis for the claim of it being a right.

The point I was making here was is what is known as the ‘fair warning’ principle, in that people should know what the law is and know what constitutes a crime. If they do not, then it would be unjust to convict them. As such, if people are taught and it is stated in law that under certain circumstances abortion is lawful, it would be unjust to charge them with the crime of murder if they have one.
Well that’s a difference between UK law and US law. My lack of knowledge that something is a crime does not invalidate the criminality of my act. Several years ago Texas allowed open containers (alcohol) in a moving vehicle. Had a Texan crossed state lines into Oklahoma with an open container and was stopped by the police he would be charged a crime (no open containers in Oklahoma).

The point I am making is in UK law, at present, intentionally causing the death of an unborn child as a consequence of recklessness, even when the person had the foresight to know death of the unborn child was virtually certain, the assailant cannot be charged with murder. The charge is manslaughter. I am not saying this is right, and there is some debate in legal circles as to whether or not the charge of murder should be open to the prosecution. However, that is how the the law (UK) stands at the moment and as such, it would be inconsistent to charge a woman who has an abortion with murder.

1. The OP is arguing that abortion shouldn’t be criminal at all. Manslaughter is a criminal charge.
2. You need a better example since your current one is based on the “exception to the rule” (unborn children). A more effective example would be were a criminal murders an innocent person unintentionally while murdering another person intentionally. Let’s assume that I murder person A and my intentional murdering of person A directly results in the death of person B. Am I guilty of 2 murders or just 1 murder and 1 manslaughter?

Further to this - and I’m not saying this decision was right - there was a case where a man who killed his baby son reduced from murder to manslaughter on appeal as in order for the conviction of murder to be safe, the death of child had to be virtually certain. The defendant threw the child across the room because he wouldn’t stop crying and died as the result of a head injury. I believe the case was Woollin (House of Lords) The charge was reduced because the court were not convinced the death of the child was virtually certain. Certainly it can be argued in the case of abortion death is certain. However, the reason I raise this point is if a woman who has an abortion was convicted of murder, there would almost certainly be an appeal and the charge may well be reduced to maintain consistency in the law.
Plea deals really have no bearing on this discussion (and if they are used in a similar manner in the UK as they are here I really wouldn’t try to link them positively with consistency in the law. Plea deals create inconsistency, they don’t promote it)