Sun Jan 2/05
To be, or not to have been

The only aspect of the recently concluded Laci Peterson trial in California that interested me at all was that her husband Scott was charged with killing his unborn baby as well as his wife. I’m certainly not the first person to ask the question, but it’s a whopper: if deciding to kill a fetus via abortion is legal, then how can "murdering" a fetus be as serious a crime as murdering the woman in which it resides? I’ve never seen a satisfactory answer, and with the guilty verdicts handed down to Peterson the incongruity of it is incredibly stark.

Don’t get me wrong: terminating a fetus without the consent of its mother (or, I suppose, in any manner not in accordance with state-approved (US) or not-state-unapproved (Canadian) abortion procedures) should be illegal, whether or not the mother ends up dead in the process. The two counts against Scott, however, were equal: that he "did wilfully, unlawfully, and feloniously and with malice aforethought murder" both "Laci Denise Peterson, a human being," and "Baby Conner Peterson, a fetus." He was so charged in addition to the "enhancement" on the first count under California Penal Code section 12022.9, which states that:

Any person who, during the commission of a felony or attempted felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

That makes it all the more fascinating, I think. In essence, the prosecution pursued its groundbreaking, counterintuitive test case not instead of the obviously supportable one, but concurrently with it — and won both! As far as my amateur lawyer eyes can see, Baby Conner is now considered to have been both alive and not alive; both murdered and, uh, unlawfully aborted.

If a fetus is just a part of its mother’s body, then bringing about its termination can only logically be considered a grievous form of assault. If a fetus can be murdered, however — and it seems now in California that it can — then logically all fetuses must be entitled to protection from any and all manners in which they might be killed, abortion included… unless, of course, some logically defensible line was drawn before which a fetus is considered a body part and after which it is afforded the full protection of the law. I’m not sure why we would bother making such a distinction, except to justify to ourselves the continuing (and entirely necessary) practice of abortion, but no such line has ever made any sense to me.

This thoroughly revolting case got me thinking about it again. For the uninitiated, one Lisa M. Montgomery, who most definitely did not have postpartum psychosis, tracked down Bobbie Jo Stinnett, strangled her to death, and butchered her unborn baby out of her womb. The baby survived to be paraded about town by Montgomery and her husband, and also, fortunately, to be reunited with her father — to date, she is showing no ill effects. So, down to brass tacks: in a hypothetical/impossible world in which Stinnett’s baby wasn’t lucky enough to have survived Montgomery’s ham-fisted obstetrics, but we knew that she would have survived otherwise, should Montgomery have been charged with two murders?

I’d love to hear from anyone with an answer other than “yes” (seriously), because the frailty (i.e., the likelihood of survival) of the victim does not play into conventional murder trials. In terms of calories expended, it would have been far easier for Lisa Montgomery to kill a 103-year-old woman or a newborn baby than it was for her to kill Bobbie Jo Stinnett, but that does not in any way mitigate her guilt on what will become "count one". Once the victim is out of the womb, murder is murder. Currently, that trend seems to be expanding to include the late-term unborn. If Canada ever sees a trial like Scott Peterson’s, surely that trend will find itself face to face with our policy of abortion on demand.

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