TANGLED DEFINITIONS: This week an Ohio man was given two life sentences for beating to death his wife, who was five months pregnant at the time. One of the sentences was for his wife, the other for their unborn child. Yet the unborn child would have been about 20 weeks along, which is in terms of viability a gray area for doctors:
Viability is presumed to exist after 27 weeks of gestation (assuming an otherwise healthy fetus) and is presumed not to exist prior to 20 weeks... The time between 20 and 27 weeks is a "gray zone" in which some fetuses may be viable and others are not.
While I've not seen much about the case, the fetus's viability would have been the crux of that part of the murder case, given that, in reference to abortions:
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court [wrote]..."the attainment of viability may continue to serve as the critical fact."
However, even the Supremes refused to set a time frame for viability:
..."the soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 or 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity may be somehow enhanced in the future."
It's a dilemma, whether the death of an unborn child should be considered murder. Viability is a factor, certainly, as is intent. I would be inclined, for instance, to visit greater punishment on a Manson-like evisceration of a mother for the purpose of removing the unborn child and killing it too. Or for a person who shoots a woman in the stomach for the purpose of killing the fetus - which is unlikely to happen at an early stage, anyway. And the later the pregnancy, the more inclined I am to count the death of the fetus as murder. But while I'm hesitant to say the caused-death of an early stage fetus is the same as murdering a infant, or an adult, at the same time I'm generally against abortion. So should I consider viability of the fetus as an issue when a pregnant woman is deliberately or negligently killed, for purposes of charging the killer with the death of the fetus, when I don't give that a lot of value in my decision about whether induced abortion is acceptable?
Conversely, it poses the opposite problem for someone who is pro-choice: it raises the issue of whether the child was wanted - for a pro-choice advocate, the issue at the center of his/her pro-choice decision is not primarily the viability of the fetus but rather the mother's ability to choose whether she wants to have the child. Thus, if the child was unwanted, the other-induced abortion, albeit involuntary on the part of the mother, would not be in the same order as the same action in a case where the child was wanted, or so it would seem to me, if the argument is to stay consistent. That is to say, the value of the fetus (or mass of fetal tissue, as it is sometimes referred to) is contingent on the value the mother places on it, ultimately, rather than on any objective standard. Therefore a defense against a charge of murdering the fetus could be that the mother herself had planned to get an abortion. On the other hand, the choice was taken out of the hands of the mother, which would be a violation but not, I think, on the same level as murder if she had already chosen abortion. In either instance - involuntary or voluntary abortion - "the mass of fetal tissue" loses any chance of viability, so how could you justify terming one murder and one not?
I want to say that wherever we land, the application needs to be consistent - whatever the current law is on abortions, that same standard should hold with murder charges where the death of a fetus was caused through the negligence or criminal activity of another party. But issues of viability and choice remain as question marks. It's not an idle questioning either - laws are but the will of the people codified despite the rather attenuated connection to the people's will that some laws represent.
It's the kind of dilemma that permeates our criminal justice system, which only the most blindered would term "consistent" or, often, even "fair". And it's the kind of dialogue we need to have in this country, rather than mindless applications of new laws without consideration of the broader consequences or implications. I lean toward a graduated scale of harm based on the viability of the fetus, in this instance, but whatever the decision is, it should be internally consistent with the rest of the legal code and in line with the broader policies of society - to the extent that we can pinpoint what those are with any consistency either - within the framework of the Constitution.