Fetal Personhood Amendment Advances in North Dakota

Your obnoxious smugness is entirely unwarranted.

Of course I’m “admitting” that miscarriages did not have a criminal dimension prior to 1973 — because a zygote/embryo/foetus was not a person and therefore homicide statutes did not apply.

If a person dies, and another person is responsible for his/her death, the latter person can be liable for involuntary manslaughter. It depends on how the individual state penal code defines manslaughter (or negligent homicide, or whatever the state calls it). Exactly how the person dies is a factual, not a legal, issue; the intentionality of the perpetrator (the mens rea in criminal law) makes the difference between negligent, reckless, or intentional homicide. If a zygote/embryo/foetus is a person, and dies as a result of a miscarriage, it has the same legal dimension as any other accidental death.

An abortion pre-1973 would have violated a state statute outlawing abortion. But an abortion was not a homicide then, and is not a homicide now, therefore it would not have implicated any homicide statutes in addition to the abortion statute. Because statutes prohibiting abortion are unconstitutional, abortion opponents are using “personhood” to make abortion a homicide. That way there is no need to outlaw abortion because homicide is already against the law. And abortion is not homicide, unless the zygote/embryo/foetus is a person. If abortion is murder, miscarriage is manslaughter.

As the law exists now, and has always existed, a miscarriage is not a homicide because it does not result in the death of a person. Your description of the law as it is and has been is not wrong, but you’re missing (or ignoring) the fact that making a zygote/embryo/foetus a person under the law, will change everything.

Your arrogance only makes you more wrong.

Clearly, you have absolutely no idea what probable cause is, or what its role/function is in the criminal justice system.

Probable cause is a factual predicate that is required before a search or arrest warrant can be issued with respect to a particular individual. It is a standard, higher than that of reasonable suspicion, that the police must meet before they can execute a search or make an arrest. It means the police have enough facts to prove to a judge that the person they want to search or arrest is probably the right person.

Probable cause is relevant to criminal procedure, not criminal law. Whether or not a particular set of circumstances, in the abstract, violates a particular criminal statute (i.e., whether something is a crime or not) has absolutely nothing whatsoever to do with probable cause. Nothing. Probable cause is not an element of any crime.

If a person dies as a result of a miscarriage, and if the accidental death of a person violates or potentially violates your state’s involuntary manslaughter or negligent homicide statute, then you already have probable cause to arrest the mother. A person is dead and she is responsible. Then it’s up to the D.A. to decide what to charge her with (if anything), depending on the facts and the penal code.

Involuntary manslaughter does not require intent. It may require negligence or recklessness, depending on the statute. It varies from state to state.

Now, if the states want to legislate as you suggest, making explicit statutory exemptions for miscarriages (e.g., as presumptively natural deaths), or if the police and district attorneys decline to enforce manslaughter statutes in such cases, that’s a separate issue. But there is no legal requirement or precedent that the death of a person by miscarriage is presumed to be a natural death; that is far from a legal certainty.

Everything depends on the statutory language, viz., the elements of the crime, whether or not anyone presses charges or files a criminal complaint, and prosecutorial discretion. But if my wife or paramour miscarries my child and I want to press charges for involuntary manslaughter, if the zygote/embryo/fetus that died is a person, I can do that; if it isn’t, I can’t. Not that I or anyone else ever would, but that’s not the point. The death of a person is an element of the crime. Intent (mens rea), which is a separate element, determines exactly what crime, and what degree thereof.

I’ve tried to be civil and not respond in kind to your nastiness, but it’s clear to me now that you have no idea what you’re talking about (if you did, you wouldn’t need to be so hostile). Spend some time studying criminal law and procedure and then get back to me.

Q.E.D.

Your contrition is much appreciated, and apology accepted.

You’re still confusing legal and procedural concepts. Reasonable suspicion, like probable cause, is a procedural concept, not a legal one; it is a factual predicate to the search or detainment of a particular person in a particular case. It is not an element of any crime and has nothing whatsoever to do with whether the death of a person by miscarriage is a homicide.

I don’t think we can be “certain” of anything when it comes to what legislatures, law enforcement, or courts will do. I don’t know what your stance is on other issues, but I’ve been hearing lately a lot of mistrust of “government” on other issues, some of it entirely irrational, that in any event flatly contradicts the level of trust that you’ve articulated on this issue. So I take that with a rather large block of sodium chloride.

Something else to ponder: If an abortion is a homicide but a miscarriage is not, what is to stop women from having abortions and then claiming they had miscarriages? Wouldn’t, then, the death of a person by miscarriage give rise to reasonable suspicion of homicide?

The legislatures, courts, law enforcement and the public are all going to have to deal with this. What is not reasonable is assuming that such a drastic, sweeping, profound change to a broad principle underlying the law (viz., redefining what is and is not a “person”), targeted at one specific, narrow, discrete category of behavior, will not have other, unintended, undesired consequences.

Have a good week.

Drew, I meant to get into this discussion a bit ago but have been busy. First, there have already been attempts to prosecute women for a miscarriage both here and abroad or to pass laws that would make miscarriage a crime. Now many of those proposed laws offer an exclusion for miscarriage BUT only so long as there is no human intervention involved. http://www.dailykos.com/story/2011/02/17/946257/–GA-Legislator-Wants-to-Create-The-Uterus-Police-to-Investigate-Miscarriages#

Now, let me tell you why that’s absurd and unworkable. I lost a baby at 7 weeks. He/she had a heartbeat and I started to have contractions. There was no way the baby could be saved because it had genetic abnormalities (didn’t find this out until afterward) but even if it could have given birth it could’t survive outside the womb. I couldn’t afford to miss work because I was the only one supporting my family at the time. I was given a choice–let my body do the work expelling the fetus which probably would take a few weeks or I could have a quick D&C (abortion) and be done with it in less than a week. If these personhood laws were in effect, I would not have had that option. I would have had to go through through it alone. That would mean dealing with the labor pains without pain medication, I would have had to risk septicimia, because if all the tissue doesn’t come out that is what happens. I would have had to deal with substantial blood loss and all the attendant difficulties with that. I would have to risk missing work and making less money (and be unable to feed my family since we lived very close to the edge at that time) and I could possibly lose my job. Many women work hourly jobs…not the kind that waits for you to get over being sick. So my suffering for weeks would have been the only legal recourse. That’s not only impractical, it’s cruel.

Now here’s another thing that is happening and is related to my first point. Women are dying in the U.S. and other countries in Catholic Hospitals because that religion considers the fetus a “person” and therefore value it’s life as equal to if not more important than the mothers. Don’t believe me? http://drangedinaz.wordpress.com/2012/11/16/a-broken-heart/ So here are women who are in the middle of a miscarriage and the hospital sits back and waits to see who will die first, the mother, the child or both. All because of a belief in personhood. Forget about a law, hospitals are already acting like it’s a law and women are losing their lives.

Another point…l have a bachelors and masters in Criminal Justice. I know the history of law enforcement both here in the U.S. and in the Western World. I can tell you without a doubt that if a government is given a power, they will push it to the extreme interpretation if the social forces are supportive of that. Since there are powerful forces in the U.S. already letting women die, the likelihood of a personhood amendment or law, would only lend those forces more authority. If they can let women die without the law, imagine what could happen with the law.

Finally, any sudden death of a person requires an autopsy, Right now autopsies are not performed on miscarried fetuses and the doctor usually doesn’t do any tests at all unless the woman wants them done. Besides, the woman’s doctor usually knows without having to perform them–like in my situation. The typical reason to lose a baby at that early stage is almost always genetic. However, if fetuses become persons the doctor’s opinion won’t be good enough. In most places, the death of a person MUST be registered and the cause of that death must be recorded. In cases of sudden death, an autopsy is performed. So all miscarriages would require at least a test done to determine cause and then that would be recorded with the state. Half of all miscarriages are caused by genetic abnormalities and that would be the cause, case closed, right?

Not so fast, what about the other half? Well, that’s the sticky part isn’t it? Was she too fat (obesity plays a role)? Did she smoke, drink too much caffeine, drink alcohol, etc, etc, etc How could you determine that without investigating the woman? You couldn’t. So in half of all miscarriages, such a law would force at least a medical examination of the fetus (BTW the family of the deceased usually have to pay for autopsies) and then have that recorded. In the other half, if they found nothing in the fetus to indicate why they died, which would often be the case, then they would HAVE to investigate the woman. HAVE TO. I can’t imagine having to deal with that when I was grieving and in pain. Even if none of them go beyond the autopsy stage, it’s just too much to impose on women who are already suffering.