Forced Miscarriage = Murder?

by Cara on November 23, 2007

in abortion, courts, feminism, legislation, patriarchy, pregnancy, violence against women and girls, women’s health

[Cross-posted from Feministe]

I’ve been musing over this one for a little while and I’m eager to hear what you think. Recently, a Texas Court ruled that a fetus can be murdered, but not by abortion.

Texas laws allow the killing of a fetus to be prosecuted as murder, regardless of the stage of development, but the laws do not apply to abortions, the state’s highest criminal court has ruled.

The Court of Criminal Appeals announced the ruling Wednesday, rejecting an appeal by Terence Lawrence, who said his right to due process was violated when he was prosecuted for two murders in the killings of a woman and her 4- to 6-week-old fetus.

The court ruled unanimously that state laws declaring a fetus an individual with protections do not conflict with the United States Supreme Court’s ruling in Roe v. Wade that women have a constitutional right to abortion.

Now, I have made my feelings on sentences for the killing of fetuses very clear in the past. In this case, I’m very glad that the court ruled that violently causing the miscarriage of a pregnancy is different from abortion. It is different. But murder?

Personally, I am someone who sees little value in a several week old embryo. But I also know that for women who want to be pregnant, their several week old embryos do have a whole lot of value. I’m completely okay with that.

What bothers me, though, is that this type of ruling takes the focus off of the female victim. In this case, the woman was murdered. In others, she may have “just” been beaten. Regardless, whenever a forced miscarriage takes place, there is always a female victim. A live, grown, breathing woman who has a life, a history, etc. She is the one here that we ought to be concerned about.

And my concern for her is what makes me want violently or non-consensually inducing a miscarriage to be a crime. In murder cases, yes, killing a woman who is visibly pregnant or whom the perpetrator knows to be pregnant probably makes the crime more heinous. In non-murder cases, many if not most women would want to see justice for the crime committed against them and their fetuses/embryos.

And I agree with them. Forcibly inducing an unwanted miscarriage should be a punishable crime. I don’t think that we should just tack it on to an existing case, i.e. giving a harsher sentence for a beating that results in a miscarriage verses one that did not. That gives the impression that the murder of a pregnant woman is somehow worse than the murder of a non-pregnant woman, and that for a woman who is currently gestating, a violent attack isn’t quite as bad. So I agree that we should make killing another woman’s fetus through violence or coercion a crime, and a crime separate from the general assault — but it should still be considered a crime against the woman and not as highly punishable as the assault charge. Instead of talking about “killing fetuses” we need to talk about “violently causing a woman to miscarry.” [There is information about current U.S. laws here. It seems to me that they all define killing a fetus as murder or manslaughter, but someone who understands legal jargon will have to verify that.]

And no, it should not be considered murder. There is absolutely no way that I think that an embryo or a fetus has either more or equal worth than the woman carrying it, except to maybe the woman herself. I also don’t think that a fetus is a person. And that’s what murder is: the killing of another person.

Though the court has separated abortion from the crime of “killing a fetus,” quite frankly it just doesn’t make any sense to me. Why is one killing of a fetus okay and the other is not? Well, because one is consensual by the woman and the other isn’t, which is what I would like to see the law based upon. But the argument here is based on the fetus itself, not on the woman, or the crime wouldn’t be called murder. And since I don’t see why I should be able to kill my husband legally but it’s murder when someone else does . . . I’m stumped. It doesn’t work that way.

Either a fetus has rights or it doesn’t. I say that it certainly should not. But I don’t think that I’m going to be the only one to catch on to the double-standard and ask “why?” It’s not exactly a giant leap. If the public comes to see a fetus as a person with rights before asking this question, well, we know where that’s headed.

So just like with abortion, I think that a model of forced miscarriage as crime should be about protecting women’s rights and preventing violence against women. Causing a purposeful/violent miscarriage is just as bad as denying women the access to abortion (or worse, in the case of physical assault). For me, it is about bodily autonomy. It comes down to a woman getting to make that decision, it comes down to a woman’s right to be pregnant and it comes down to women having the right to not be beaten at all, let alone the right to not be beaten and then overlooked for the embryo she was carrying.

Even though this ruling shouldn’t have any effect on abortion rights, it does. Not only for the law changes that it could potentially inspire down the road, but on how we see things now. Every time we theoretically remove a fetus from its dependence on a woman’s body, it affects abortion rights. Any time we look past the woman to see the fetus, it affects women’s rights — including the rights of those who have or want to have children. To call killing a fetus murder takes away from what has actually been done to the injured woman, and to call killing a pregnant woman a double-homicide minimizes the impact and understanding of actual murder.

I think that this violent fucker should be in jail. But I can’t agree with the entire basis they used to put him there.

What are your thoughts?

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{ 5 comments }

1 cherylp November 23, 2007 at 8:42 pm

Thanks for the post, Cara. I have been thinking about this too and felt iffy about it. You’ve articulated why, I think, very well here. You’re right about the contradictions in this ruling – it doesn’t make any sense to assign personhood in one case and not in another. I can’t even wrap my head around that…

2 Ran November 24, 2007 at 4:49 am

I agree with your viewpoint, but I think I see a viewpoint that would justify this decision.

It’s currently a rather open question whether a fetus is a person. Due to a woman’s rights to privacy and to autonomy over her body, with abortion we let a woman decide for herself (well, and for her fetus) whether it’s a person — i.e., we err on the side of assuming it’s not. But that’s not relevant in a case like this; here, no such rights apply, so we err on the side of protecting entities that may be our most defenseless citizens.

(Such a viewpoint, incidentally, would not be a very strongly pro-choice viewpoint, since at some level of “I think it’s probably a person” the fetus’s probable right to life would supersede the mother’s certain but lesser right to bodily autonomy.)

3 Kate November 25, 2007 at 3:34 pm

I basically feel the same way as Ran on a political level, but I wanted to throw in my personal, emotional perspective as a mother. I think the struggles, feelings, experiences and perceptions of feminists who choose to be mothers are often unintentionally marginalized by the greater feminist community. (I’m not saying this to be critical, I only add that in because it’s an area of my life that I don’t often see represented.)
Anyhow, I feel like while it is a big step for a governing body to recognize the complexity of the situation by separating abortion and caused miscarriage, I also feel it is dangerous to grant a fetus rights in this country (especially in a state like Texas) and that’s just the reality. Therefore, I agree that legally equating it with murder is unsettling. However, whatever you want to call the charge of causing someone a miscarriage, I think the punishment should be very fierce. I would even entertain the notion of a punishment comparable to murder, such as a life in prison. (I don’t believe in the death penalty) I say this because I know there is no pain like losing a baby… even only a would-be-baby. For me and for many women, I knew my 9 week old fetus wasn’t really a person yet, but it sure as hell felt like it was. It’s a difficult thing to explain, but I wanted my baby so bad that I made it real. I loved it like I loved my family… maybe even more. I think a huge part of it was because it was a part of me. Many, many pregnant women feel this way to the point where loosing a fetus is no different than losing a child. The devastation is very real and it is crippling. I think that when we discuss forced abortion or miscarriage, we need to keep in mind what it’s like for a woman who looses a wanted baby. We should be equally as concerned about them. Just to add, I think the punishment for rape, abuse, and forced pregnancy should be life in prison as well. The living body isn’t the only part of a person that can be destroyed, and destroying a person’s mental, psychological, emotional or spiritual self isn’t any less monstrous. Sorry if this was long and too personal, it’s just a very personal issue for me. Thanks.

4 emma December 4, 2008 at 4:06 pm

what about fetusus that are over 32 weeks old? babies can normally live outside the womb at that stage. they shouldn’t be considered humans just because they haven’t come out yet?

5 Leena March 21, 2010 at 11:22 pm

this was a very helpful topic. It happened to me, and I am at a loss on how to go about a punishment or even if i can…but this shed some light. thank you thank you

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