Original article by Tiina Wiik.
An interesting lawsuit has emerged on the subject of the hardening of abortion legislation in Alabama: The woman who has been shot has been charged with harming her unborn child.
The case has been discussed widely even in Finland, and it is mainly misses in news reporting that cause the dismay. People do not understand how this kind of thing is possible, as the media does not uncover enough on the applicable laws regarding the happenings. With Katju Aro’s words, let us start with the facts.
Why does a woman get charged with having been shot?
The US laws protect even a foster from violence. The foster is not perceived as it’s mother’s property, but as a victim of a violent crime and thus a person of it’s own. This is the case not only in Alabama, but the whole country. Unborn Victims of Violence Act is the state’s law on violence towards it’s unborn citizens. Killing a woman will give a harder sentence if it includes killing a foster, and causing a spontaneous abortion by means of violence is a punishable deed according to this law, even if the mother was not caused any further damages.
In some states, this law is in practice in an even harder form – the individual states may decide rather freely on their own criminal laws, as long as they respect the Constitution and Federal laws. In these states, as in Alabama, laws regarding violence towards a foster do not only target outsiders, but also the mother. The woman is charged because the law sees the harm she has caused to the foster, as it would if it was caused by any other person.
What is classified as violence towards a foster depends even on local legislation. Sometimes, it only means a violent act; in some other state, this may mean, for example, taking drugs. These laws leave a lot of room for adjustment, and it is not always clear to even the local authorities how they should be interpreted. What about taking prescription drugs that cause drug dependence? What about being careless? What if an expecting mother starts skydiving as a hobby? All of the possibilities and variations thereof make this legislation a haphazard greyzone.
The Jones case is much clearer. As the prosecutor exclaimed: ”We should keep in mind that the unborn child is a victim in this situation, with no other option than to be drawn to a fight unnecessarily, when dependent on it’s mother’s protection.”
Almost all US states have a law regarding emergency self-defense called Stand Your Ground. It means that you may stop an aggressor coming at you, which differs from the current self-defence law in Finland drastically. In Finland, it is hard to avoid being charged for a crime for defending oneself in an emergency, even if it were possible to prove a threat of seriously dangerous character. Often, the argumentation goes that it might have been possible to somehow act differently or to have used less violence. Thus in Finland, protecting one’s fellow citizens is almost always unacceptable and emergency self-protection only applies to oneself in the name of law. This understanding may for sure prevent and keep unnecessary conflict situations at bay, but on the other hand, it weakens general safety as people’s motivation to help others in need diminishes. There have been situations where someone has stopped an assault, hold-up or rape, only to become charged with assault themselves.
I have observed this kind of happenings in the past myself; like the case of a man shooting a person threatening a group of friends with a shotgun, then expressing they would then shoot their parents and random people on the street, until the police would take the person down. The situation was undebiably clear to all at present as they also witnessed, but despite that, both District Court and the Court of Appeals sentenced the man for having exaggerated emergency defence. Supreme court later freed the man, but he had been incarcerated for 9 months for saving several lives of other people. No wonder a Finn hesitates to help someone in the jaws of violence.
The American way of seeing emergency protection is quite different. The target has no obligation to flee or find a non-violent solution. It is considered, that as the aggressor is the party that acts illegally and has started the conflict, the victim does not have to care about their safety – anything and everything that happens to the attacker is due to their own choices. The rigidity of following this law depends on the state. In some states, even minor violence or even a perceived threat is enough to motivate a self-defence procedure, whearas in some others, something more is needed before using any violence in an emergency protection situation.
Most often the ground in the name of the law means any place where one is attacked. Some other states only protect certain grounds with it, such as their home and/or car. Car related incidents have sometimes resulted in exaggeration in places with many hold-ups in traffick lights. Someone may have shot a homeless person asking for money, thinking the were about to assault them. So there are risks with this kind of thinking as well.
In the Jones case, the prosecutor claims that Jones has expressly looked to get engaged in a physical fight and thus, created a threat to the other woman, who then got the right to not back and to use violence.
Incidents of this kind are always interesting, not just juridically but even morally. It is even logical to accuse a mother for doing things that might harm the foster. A foster is not thought of as property even when someone else hurts a woman’s unborn child, but of a separate victim, so it is only logical that even a mother can harm this victim. If the law saw the foster as it’s mother’s property, as in a damage case, it would be understandable that the mother could not be charged, as the victim would be their property.
Legislation on unborn children is challenging because it is difficult to isolate personal and literary cases in one mould. Often the most consistent and logical solutions are not moral in the view of the majority. The most logical positions with regard to abortion are a full yes or no, that is, either allowing all abortions, or not allowing any abortions under any circumstances. In all other positions, there are artificial and subjective boundary strokes as to when the fetus may still be abortable, and when humanitarian thinking towards the mother is more important than fetal life.
I myself do not support either of these extremes, although I am aware that they are the most logical views.
And what is the harming of a fetus? Should it be violence, which would also be punishable if done to an adult, or is there a sufficient degree of abuse which indirectly harms, such as maternal unhealthy lifestyles or risk-taking? A peaceful and sensible debate on issues relating to unborn rights is missing, but sadly the subject is so charged and polarized that the debate is in the bud. Feminist activists do not begin to understand or attempt to understand the motives of the abortion opponents, and the opponents of abortion are equally sensitive to the immorality of feminist activists, so much so that they are stamped child murderers.
Like with the issue of immigration, the extremes are so far apart that there is no such thing as a mutually agreeable compromise. One side wins, the other loses. I follow with interest who will be stay on the winning side.