Now that I've got your attention... ;D
This piece will discuss the relationship between abortion and murder.
And this article, as you will notice, I'm sure, is why it's been so long since I last posted. I hope that you enjoy the article and learn something from it.
Thank you for taking the time to read my article(s). I appreciate it!
Have you ever heard an anti-choicer call abortion murder? Have you ever seen posts on Facebook/Twitter/Etc. like these?
"I hate abortion. It is a murder which kills unborn child."*"Abortion is a war against the child, a direct killing of the innocent child, murder by the mother herself, and if we can accept that a mother can kill even her own child, how can we tell other people not to kill one another? How do we persuade a woman not to have an abortion? As always, we must persuade her with love, And we remind ourselves that love means to be willing to give until it hurts" — Mother Teresa" "it's murder . i don't care what you say ."
" Now if a "fetus" has no rights or is not a human being why does almost every government on earth protect these people before birth by acknowledging that if purposefully killed thay have been murdered."
The question is whether or not abortion is murder. And the answer is complicated. Yes, abortion is murder, and no, abortion is not murder. And yes, I’m talking in legal terms. I'll explain:
Murder As a Legal Term
The legal definition of murder from various sources:
1. "the crime of unlawfully killing a person especially with malice aforethought" [Merriam-Webster Dictionary]
In this case, the elements of what constitutes as murder are as followed:
A. Unlawful B. Killing a Person C. Malice Aforethought
I should note that in the court of law, it is the prosecutor that bears the burden of proof. Now, in order for abortion to be constituted as murder under this definition, abortion would have to be a crime, which, in the United States, it currently isn't. The fetus would also have to legally be considered a person, which may be true depending on which state you go to, or whether or not the Personhood Amendments pass. However, personhood of a fertilized egg is another topic for another day. The third and final element to this definition of murder is malicious aforethought. A prosecutor would have to prove that the woman that aborted had malicious intent toward the fertilized egg, and didn't just simply intend to terminate the pregnancy. This final element raises a question: If there were a way to keep the fertilized egg alive and transfer it to someone else, or place it in an artificial womb, would the woman decide to kill it or not? If she wouldn't kill the fetus, then does that not signify that the intent behind abortion is not to kill, but to not be pregnant? I'm not sure if that question makes a whole lot of sense to you. It makes sense in my little head.
Currently, for a woman that does not wish to remain pregnant and go through childbirth, abortion is the only other option (adoption happens after the child is born, if you didn't know). Killing the fetus is the only way to separate a woman and a fetus when the woman does not wish to remain pregnant and/or go through childbirth (by any means). If the only way to get someone that was harming your body in any way (regardless of intent--even a mentally ill person that has no idea what they are doing) is to kill them, then killing them, last I checked, isn't murder. There would be no malice (unless you think self-defense is now malice) aforethought.
2. "Law . the killing of another human being under conditions specifically covered in law. In the U.S., special statutory definitions include murder committed with malice aforethought, characterized by deliberation or premeditation or occurring during the commission of another serious crime, as robbery or arson (first-degree murder), and murder by intent but without deliberation or premeditation (second-degree murder)." [Dictionary.Reference.Com]
Again, let's go through the elements of this definition of murder:
A. Killing a human being a.First Degree Murder i.Malice Aforethought OR Premeditation OR Occurring during the act of another serious crime. b.Second Degree Murder i.Intent ii.Without Deliberation or Premeditation B.Within the Boundaries of Law
Abortion comes closer to the second degree murder definition, but the intent would still have to be to kill the fetus. If there were another option to terminate a pregnancy yet keep the fetus alive, would women still kill the fetus? If the answer is yes, then the intent to kill is there, but the fetus would still have to be legally defined as a human being.
The fetus is human, don't get me wrong. What else could it be: a toaster? A lobster? No. However, the definition of "Human Being" is debatable and again, is another topic for another day.
The last element, in my opinion, should probably have been worded differently. But it still makes sense. Legally, murder is defined by what the law says. If the law says it isn't murder, then legally it isn't murder.
3. "the unlawful premeditated killing of one human being by another" and "kill (someone) unlawfully and with premeditation" [Oxford Dictionaries]
The elements of this definition of murder: A.Unlawful B.Killing of a human being by another [human being] C.With Premeditation
This particular definition doesn't mention intent. But notice that it does mention that it is killing a human being (which is debatable when it comes to fertilized eggs/zygotes/fetuses), and some places consider it a human being/person—and I need to stop mentioning this because it will be discussed in another diary, but meh). Abortion is currently lawful, so abortion cannot currently support this definition of murder. This also doesn't mention malicious premeditation, so this particular element fits abortion because women typically decide before they are getting an abortion that they will be getting an abortion, right? This definition is similar to some definitions of second-degree murder and manslaughter.
With this particular definition, if an Anti-Choicer were to say that abortion completely fits the definition, despite the fact that abortion is legal (since they would say that two of the elements are satisfied), then we would be able to drop the "unlawful" element and charge anyone that killed anyone with murder. Soldiers would be charged with murder if they plan out their attacks. Judges would be charged with murder for issuing the death penalty. Cops would be charged with murder when deciding to shoot anyone that uses a weapon against them. Deciding and carrying out the act to kill anyone that breaks into your home would make you a murderer.
Therefore, it is important that the "unlawful" element is in the definition of murder.
4. "Section 1751(a) of Title 18 incorporates by reference 18 U.S.C. §§ 1111 and 1112. 18 U.S.C. § 1111 defines murder as the unlawful killing of a human being with malice, and divides it into two degrees. Murder in the first degree is punishable by death. In any case in which the death penalty may be applicable, it is necessary for the United States Attorney to follow the procedures set forth in USAM 9-10.000. The Attorney General must authorize the United States Attorney to seek the death penalty in any case. Any other kind of murder is murder in the second degree and is punishable by any term of imprisonment including life." [United States Attorneys' Manual]
The elements of murder based on this definition:
A.Unlawful B.Killing of a Human Being C.Malice
It is then broken down to first and second degree murder.
This one is just as explainable as the other ones. So since I don't feel like typing up a bunch of stuff that I've already said right now, here's the gist:
It's debatable whether or not a fetus is a human being. Abortion isn't unlawful. I believe that it would be difficult to prove that there is malice (malice intent). If there were malice (intent), then the killing would still have to involve the killing of a human being, and it would have to be unlawful. Therefore, there is no murder in abortion.
Homicide as Opposed to Murder
Homicide is broader in scope than murder. All murders are homicides, but not all homicides are murder (you'll notice this based on the definitions, and there will be further explanations as well).
1. "The killing of one human being by another human being." [Legal Dictionary - The Free Dictionary]
The elements of homicide, like the definition, are much broader than the definition and elements of murder. With this definition of homicide, the elements are:
A.Killing of a human being B.By another human being
And that's pretty much it. If the fetus is a human being, then abortion, regardless of legality, is homicide.
I'd like to take this time to note that regardless of whether or not you consider the fetus a human being, states have "fetal homicide laws" that include fetuses in acts of criminal homicide and other crimes by either simply including the fetus as a victim, or redefining "person" or "human being" in these crimes.
2. "a killing of one human being by another" [Merriam-Webster Dictionary]
See my statements on the first definition.
There is criminal homicide, and non-criminal homicide; non-justifiable and justifiable homicides.This will bring us now to the subject of justifiable homicide.
Justifiable Homicide
What is justifiable homicide? It's exactly what it sounds like. Justifiable homicide is the legal/justifiable killing of a person.
There are quite a bit of cases in which killing a person is not a criminal act. Some of these cases include:
1. Self-Defense - This includes an officer killing a suspect if he/she suspects that his or her life or the lives of others are in jeopardy. 2. Capital Punishment - A judge/magistrate can order the death penalty for a person, and he/she will not be charged with a crime, as it is legal killing of persons. 3. War - Under orders, the soldier can kill persons during war, regardless of innocence. 4. To prevent a serious crime - For example, rape. In the prevention of rape, (I theorize) deadly force can be used if deadly force seems to be the only way to prevent the crime of rape. 5. Preventing a prisoner from fleeing a prison 6. Legal abortion - This has already been explained. 7. Legal assisted suicide/euthanasia 8. Accidents (if, of course, it can be proven that there was no intent, as if it were not manslaughter--think of a car accident taking place in a winter storm. It's probable that neither drivers were negligent, nor intended to kill, but if one of them dies, the other won't be charged with vehicular manslaughter). I hope I explained this one well enough.
State laws vary in what constitutes as justifiable homicide.
Sources: Criminal-Law-Lawyer-Source.ComDefinitions.USLegal.ComWikipedia: Justifiable HomicideCaliforniaCriminalLaw.ComWashington State Legislature
Manslaughter
Now I'll define the legal term manslaughter:
Law . the unlawful killing of a human being without malice aforethought. [Dictionary.Reference.Com]
The elements of this definition of manslaughter are:
A. Unlawful B. Killing of a human being C. Without malice aforethought
This could also be classified as second degree murder with the aforementioned definitions in the murder category. Notice that in order for abortion to be manslaughter, the act must be unlawful. Any illegal abortion, such as during the crime of battery, etc. would be manslaughter, and that's what defines fetal homicide laws: That they are the unlawful killing of a fetus. All states have fetal homicide laws and some include the definition of person in the laws to include the fetus. Or some of them specify that the laws regarding certain criminal homicides include fetuses (viable or non-viable depending on the state).
Manslaughter breaks itself into two categories: Involuntary and Voluntary. We’ll start with involuntary manslaughter.
Involuntary Manslaughter
What is involuntary manslaughter?
The act of unlawfully killing another human being unintentionally. [Legal-Dictionary.TheFreeDictionary.Com]
Once again, we’ll look at the elements of the definition. This definition of involuntary manslaughter’s elements are:
A. Unlawful B. Killing of another human being C. Unintentional
One famous case involving involuntary manslaughter is the case against Michael Jackson’s physician, Dr. Conrad Murray, for Michael Jackson’s death. He was found guilty of involuntary manslaughter. He has been sentenced to 4 years in prison, but apparently will only be serving half of that sentence due to automatic good behavior credits.
One of the jurors, during an interview, informs us why Dr. Murray was convicted of involuntary manslaughter:
"We had decided the three issues we were going to focus on were the not calling 911, not having the medical equipment and him leaving the room," Franklin said. "That was the bottom line for this case." [Source]
Voluntary Manslaughter
What is voluntary manslaughter?
Voluntary manslaughter is a form of homicide that involves the intentional killing of another person in the heat of passion, after provocation or in imperfect self-defense. Unlike murder, there is no malice aforethought involved in voluntary manslaughter, and no premeditation. Voluntary manslaughter occurs when someone intentionally kills another person, but acts in the moment with no prior malice. [Criminal.FindLaw.Com]
Elements of voluntary manslaughter:
A. Intentional killing a.Of a person b.By another person B. In the heat of passion (in the heat of the moment) C. Without malice aforethought
Crimes of passion are, by this definition, voluntary manslaughter.
I’d like to take the time to note that in some states, there is no second degree murder, but voluntary manslaughter instead. In some states, there is no voluntary manslaughter. Just second degree murder. Depending on where you go, legal definitions vary. I’m just trying to give you a general idea.
If Abortion is Murder, Then Miscarriages are Involuntary Manslaughter
If abortion would become unlawful, or if killing a fetus is unlawful (in general), then miscarriages would, by legal definition, be involuntary (or voluntary, if the woman intended to do it) manslaughter. The fetus being killed would fall under the unlawful killing elements, and, in a majority of cases would be involuntary, without premeditation.
This is just an interesting point that I found on the internet, which is why I’m bringing it up here. It just kinda went with things.
Decide for yourself though (and I’d love to see your response! :D): If abortion is illegal, would miscarriage be manslaughter (voluntary or involuntary)? Why or why not?
Fetal Homicide Laws
I'm going to start saying this: I find it interesting that they are generally called homicide (note: not murder) laws. So killing a fetus without the woman's consent is generally homicide, or a combination of fetus and homicide: feticide. Now, that being said, and with all that legal defining of murder spiel, that a forced abortion (that's what I consider it anyway), or the killing of a fetus without the woman obtaining a legal abortion can actually be murder. And fetuses can be persons. Most of what was up in that murder category was opinion and questioning by myself, and now I'll give y'all some facts that I found particularly interesting about the relationship between abortion, murder, and personhood.
I'm not saying this to piss off Choicers. I'm saying this to give you facts. Whether we like it or not, somewhere there is a legal definition that we don't like. This is the same for both sides.
Let me explain. I'll use Alabama as an example, and I'll go into more detail on this in another post that will discuss fetal personhood. :)
Alabama
Let's take a look, for a moment, at Alabama's State Code. I'll bold-font the parts that I feel are the most interesting/particular:
Section 13A-6-1 Definitions. (a) As used in Article 1 and Article 2, the following terms shall have the meanings ascribed to them by this section: (1) CRIMINAL HOMICIDE. Murder, manslaughter, or criminally negligent homicide. (2) HOMICIDE. A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person. (3)PERSON. The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability. (b) Article 1 or Article 2 shall not apply to the death or injury to an unborn child alleged to be caused by medication or medical care or treatment provided to a pregnant woman when performed by a physician or other licensed health care provider. Mistake, or unintentional error on the part of a licensed physician or other licensed health care provider or his or her employee or agent or any person acting on behalf of the patient shall not subject the licensed physician or other licensed health care provider or person acting on behalf of the patient to any criminal liability under this section. Medical care or treatment includes, but is not limited to, ordering, dispensation or administration of prescribed medications and medical procedures. (c) A victim of domestic violence or sexual assault may not be charged under Article 1 or Article 2 for the injury or death of an unborn child caused by a crime of domestic violence or rape perpetrated upon her. (d) Nothing in Article 1 or Article 2 shall permit the prosecution of (1) any person for conduct relating to an abortion for which the consent of the pregnant woman or a person authorized by law to act on her behalf has been obtained or for which consent is implied by law or (2) any woman with respect to her unborn child. (e) Nothing in this section shall make it a crime to perform or obtain an abortion that is otherwise legal. Nothing in this section shall be construed to make an abortion legal which is not otherwise authorized by law. (Acts 1977, No. 607, p. 812, §2001; Act 2006-419, p. 1042, §§1, 2.) [Source]
Now in this particular definition, from the state of Alabama, I'd like to note that it specifically defines the fetus is a person, and it says that the fetus can be a victim of criminal homicide (which includes murder, manslaughter, and criminally negligent homicide) and assault. Now this is interesting, because the termination of a pregnancy against the will of the woman by another person would be counted as criminal homicide, but, as I said before, legal abortion means that the fetus cannot be a victim of murder. In fact, while abortion is legal, the fetus cannot (legally) be a victim of murder, manslaughter, or criminally negligent homicide, unless the woman did not give consent for a legal abortion.
Conclusions/Extra
What I find interesting about the definitions of murder, homicide, and manslaughter, is that these definitions do not define the innocence of the victim. Even if the victim were committing a crime, killing them would still be at least one of these three definitions. Innocence, or lack thereof, is irrelevant when it comes to killing, so saying that killing a fetus is wrong because the fetus is innocent makes no sense, in my opinion, because that's like saying that killing someone that smokes pot or killing someone that is drinking underage is somehow less wrong because they are not necessarily innocent.
So I ask, what is innocence?
Also, the Mad Melancholic Feminista blog makes an excellent (in my opinion) point in regards to the correlation of abortion and murder:
"Basically, my point was if most people really believed that abortion was murder (which is the specific moral wrong that those who object to it from a religious standpoint assert), then abortion would quite simply be a non-issue. I mean, c'mon. No one tolerates or even likes a rapist or child pornographer. But, you can not only like, but love a woman who had an abortion. You might disagree with what she did. You might find it morally repugnant. But, except for a select few, you can't imagine people absolutely wanting to rip apart a woman who terminated a pregnancy."
Questions for You, Reader(s):
1.Is abortion, in your opinion, murder? 2. If there were a way to keep the fertilized egg alive and transfer it to someone else, or place it in an artificial womb, would the woman decide to kill it or not? 3. Do you think that if abortion were legally considered murder, that miscarriages would be legally considered involuntary manslaughter? 4. What is innocence?