Does the 14th amendment prohibit abortion?
AAsch at aol.com
AAsch at aol.com
Mon Sep 12 12:44:47 PDT 2005
In a message dated 9/12/2005 11:41:04 AM Pacific Standard Time,
gillman at usc.edu writes:
SETTING ASIDE (for the moment) whether it is correct to define "person" as
"human life from the moment of conception" -- IF ONE HAS THIS VIEW does that
obligate the analyst to take the position that the 14th amendment prohibits
abortion (just as it would prohibit the state from allowing citizens to freely
murder non-citizens in their midst)?
This question came up in a long, mostly unproductive argument about abortion
on the ACLU message boards. One avenue I explored was how states could
modify the justification and excuse parts of their criminal laws to allow
abortions using concepts like necessity, duress, and self-defense.
The factual basis certainly exists. At every stage of a pregnancy, abortion
is always safer for the pregnant woman than remaining pregnant in terms of
mortality and morbidity. According to statistics I recently researched, forcing
a woman to remain pregnant rather than have an early term abortion increases
her risk of death almost 100 times. Forcing a woman to remain pregnant
rather than have a late term abortion increases her risk of death almost 10 times.
One problem, however, with applying common law justifications in a world in
which a fetus were a "person" is that justifications in most states and at
common law do not allow someone to save his or her own life by killing an
innocent third party. As quoted in footnote 2 of People v. Anderson, 28 Cal.4th
"See also Perkins and Boyce, Criminal Law (3d ed. 1982) chapter 9, section
2, page 1058 ('For the most part today, as at common law, one is not excused
for the intentional killing of an obviously innocent person, even if it was
necessary to save oneself from death.'); LaFave, Criminal Law (3d ed. 2000)
section 5.3(b), pages 468-469; Annotation, Coercion, Compulsion, or Duress as
Defense to Criminal Prosecution (1955) 40 A.L.R.2d 908, 909 ('[I]t appears to be
generally accepted that coercion or duress may be a defense to all crimes
except taking the life of an innocent person'); U.S. v. LaFleur (9th Cir. 1991)
971 F.2d 200, 205, and cases cited." Full text of People v. Anderson
As the California Supreme Court went on to note in that case, however: "A
state may, of course, modify the common law rule by statute. The Model Penal
Code, for example, does not exclude murder from the duress defense."
If a state can modify its duress defense to allow someone to kill an
innocent third party in response to a threat of death, why couldn't a state modify
its self-defense laws to allow a woman to kill a "person" in her own body who
is increasing her risk of death by one or two orders of magnitude?
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