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Monday, August 13, 2012

People v. Davis

Ultrasound: 23 weeks

From Stanford Law School's Supreme Court of California resources:
On March 1, 1991, Maria Flores, who was between 23 and 25 weeks pregnant, and her 20-month-old son, Hector, went to a check-cashing store to cash her welfare check. As Flores left the store, defendant pulled a gun from the waistband of his pants and demanded the money ($378) in her purse. When she refused to hand over the purse, defendant shot her in the chest. Flores dropped Hector as she fell to the floor and defendant fled the scene.
Flores underwent surgery to save her life. Although doctors sutured small holes in the uterine wall to prevent further bleeding, no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn as a direct result of its mother's blood loss, low blood pressure and state of shock. Defendant was soon apprehended and charged with assaulting and robbing Flores, as well as murdering her fetus. The [7 Cal.4th 801] prosecution charged a special circumstance of robbery-murder. (§ 190.2, subd. (a).)
According to the CA Penal Code (Section 187, Subdivision (a)):
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." 
The jury convicted the defendant of assault with a firearm, robbery, and murder of a fetus.  The defendant was sentenced to life without parole, plus five years for firearm use.

The defendant appealed, arguing that it was unlikely the fetus would have been viable, and citing Roe v. Wade and Planned Parenthood v. Casey for definitions of fetal viability: the point in development when a fetus, if born, would be capable of living normally outside the womb.

Both the Court of Appeal and the CA Supreme Court found that the CA Penal Code does not include viability as an element of fetal murder.

Many pro-choicers assert that in order for a human being to be a "person," he or she must be viable.  Does this imply that, by CA law, you can be charged with the murder of non-persons?



11 comments:

Jameson Graber said...

Nice take. I suppose there are two intellectually honest responses pro-choicers could make. One is to bite the bullet and suggest that maybe we should change or abolish fetal murder laws (it would be sufficient in this view to prosecute for attempted murder of the woman). The other response is to hold that abortion is justified by the overwhelming right to bodily integrity. Thus, whereas it may be reasonable to refer to the fetus as a human being with a right to be protected from outside violence, she is so dependent on her mother that this right no longer hold if her mother feels she cannot bear the burden of carrying her to term.

Or maybe we can just wait to see what the trolls have to say.

Romney would've gone Galt if he didn't love america said...

You really ought to include the full text of the code when you're having discussions about it. Perhaps some of your questions would be answered.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199

Wat said...

The question is about the relationship between "personhood" and viability. I don't see how the full text of the code further answers the question.

We need to start a war with Iran for our national security. said...

yes, let's quote some legal code out of context and make assumptions about what the law says or doesn't say. Information that doesn't confirm our personal narrative about abortion in america should be ignored. Let's have a discussion about what the law SHOULD be. Get ready folks, well reasoned discussion to follow this post!

wat said...

What assumptions are being made about the law? What information that wasn't quoted addresses the "personhood" issue one way or another?

Anonymous said...

(a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.

In other words, the statute in no way implies that a fetus is a person, in fact, it implies the opposite. But go ahead and quote it as information in support of your argument. One of these days you'll catch the attention of MENSA for your gifted skill at reading comprehension.

Anna Day said...

Through all the legal definitions and wrangling, a baby is a person is a human. No matter how the pro-abortionists try to skirt around that fact, it still stands.

When I was pregnant, no one asked me, "When is your fetus due?".

I didn't have a "Fetus Shower" or wear specifically designed "Fetus Clothes".

The only difference is, its a 'baby' when wanted and a 'fetus' when it's not. However, this change of terms does not take away what a baby really is, despite all the propaganda.

You can call a duck a cow, but it's still a duck.

Wat said...

I don't see how anything you quoted addressed the issue of personhood. You're pointing out that the code does not affect abortion law; the original post never claimed otherwise.

The OP ends by asking, "Does this imply that, by CA law, you can be charged with the murder of non-persons?" If you believe the statute implies a fetus is not a person (though I'm not sure where you're getting implications about personhood one way or another), then I guess you're simply answering "yes" to the above question.

Anonymous said...

Just because you decided that you wanted to reproduce, does not make you pro life.

Pro-life implies that you believe no woman should have the choice to stop a pregancy from coming to term. Unless you believe that women should be forced under threat of incarceration to carry a pregnancy to term, you are pro-choice.

This is part of the misconception of the "pro-life" and "pro-choice" labels that leads to disproportionate populations getting polled as "pro-life" when they actually aren't.

Annie Zaswe said...

Trolls are running scared now that they know the public opinion has shifted from their pro-kill agenda. The above is an obvious indication that things are moving in the right direction!

Anonymous said...

What about pro-lifers who believe abortion should be illegal but the legal ramifications should fall to doctors, not women?