Murder suspect uses pro-choice viability argument as defense

[Today’s post by Sarah Terzo is part of our paid blogging program. Sarah is a pro-life atheist, a frequent contributor to Live Action News, and the force behind ClinicQuotes.com.] 

Apple Valley, Minnesota prosecutors allege that Roger Holland killed his pregnant wife Marjorie and their 15-week-old unborn baby. Holland’s lawyers are defending him using the argument that the murder of the baby was, in fact, an illegal abortion. They claim that the killing of the baby fits the criteria for abortion rather than murder.

At 15 weeks, the baby in this case would have had all the organs in place and fully developed feet and hands. However, over 450 legal abortions are performed between 13 and 15 weeks’ gestation every day. Holland and his legal team are trying to exploit this inconsistency in the law that allows abortionists to kill unborn babies legally, but punishes non-medical-practitioners who kill these babies during the commission of a crime. Marsh Halberg, Holland’s attorney, contends that the unborn babies have no inherent right to life. He says that rather than murder, Holland should be tried for performing an illegal abortion, which carries a much lighter sentence.

Halberg attempted to have the murder charge for the baby dismissed, saying “The exact conduct [Holland] is being accused of is chargeable under a separate, less severe statute… If there are different statutes that can be used to penalize criminal conduct, then you should use the statute that most accurately depicts the crime involved.”

Halberg said of the unborn victim, “It’s not a separate interest at this point, because it’s not viable.”

Halberg also uses as part of his argument the case of Donald Wickstrom, who was convicted of illegal abortion after he beat his pregnant girlfriend and caused a miscarriage. In Wickstrom’s case, the mother survived the attack, but her 8-month-old baby died. Dakota County Attorney James Backstrom, who is prosecuting Holland’s case, moved to dismiss Halberg’s argument on a technicality, saying that the laws were different when Wickstrom’s crime was committed. Backstrom said that the use of the “illegal abortion” defense was “offensive and legally unsupported.”

If convicted of the death of Marjorie Holland, Roger Holland faces life in prison. The murder charge pertaining to the unborn baby would, therefore, not greatly affect the punishment that he is already facing. Even if his “abortion is not murder” strategy succeeds, it will not save him from life in prison if he is found guilty of the separate charge of murdering Marjorie Holland. Still, the use of this defense is appalling, and could have ramifications for future cases.

Viability = Personhood?

In the never-ending debates over what it means to be a “person” (as distinct from a human being) I’ve seen many people claim that you cannot be a person unless you are viable, i.e. a fetus is not a person until the fetus can live outside the mother’s body.

The first counterargument I usually hear (or give) is that patients on respirators or people using dialysis or the like are not somehow less of people–they don’t lose personhood due to their physical dependence.

Additionally, “personhood” should be an intrinsic property of a human, shouldn’t it?  It doesn’t make sense–and sounds a bit eerie–to suggest that your personhood depends on factors aside from you.  But viability is that type of quality.  The Department of Perinatology and Gynecology at the University School of Medical Sciences in Poznan, Poland explained it this way:

Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors.

In other words, a fetus gestating in the United States, whose mother has access to advanced medical technologies, may be able to survive outside the womb at an earlier gestational age than if the exact same fetus were gestating in Rwanda.  If personhood depends on viability, the fetus is a person while in the US, and ceases to be a person if the mother travels to Rwanda.  ….This makes no sense.  No definition of personhood should boil down to geographic location.

People v. Davis

Ultrasound: 23 weeks

From Stanford Law School’s Supreme Court of California resources:

On March 1, 1991, Maria Flores, who was between 23 and 25 weeks pregnant, and her 20-month-old son, Hector, went to a check-cashing store to cash her welfare check. As Flores left the store, defendant pulled a gun from the waistband of his pants and demanded the money ($378) in her purse. When she refused to hand over the purse, defendant shot her in the chest. Flores dropped Hector as she fell to the floor and defendant fled the scene.
Flores underwent surgery to save her life. Although doctors sutured small holes in the uterine wall to prevent further bleeding, no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn as a direct result of its mother’s blood loss, low blood pressure and state of shock. Defendant was soon apprehended and charged with assaulting and robbing Flores, as well as murdering her fetus. The [7 Cal.4th 801] prosecution charged a special circumstance of robbery-murder. (§ 190.2, subd. (a).)

According to the CA Penal Code (Section 187, Subdivision (a)):

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” 

The jury convicted the defendant of assault with a firearm, robbery, and murder of a fetus.  The defendant was sentenced to life without parole, plus five years for firearm use.

The defendant appealed, arguing that it was unlikely the fetus would have been viable, and citing Roe v. Wade and Planned Parenthood v. Casey for definitions of fetal viability: the point in development when a fetus, if born, would be capable of living normally outside the womb.

Both the Court of Appeal and the CA Supreme Court found that the CA Penal Code does not include viability as an element of fetal murder.

Many pro-choicers assert that in order for a human being to be a “person,” he or she must be viable.  Does this imply that, by CA law, you can be charged with the murder of non-persons?

Roe v. Wade: A Brief Overview


In 1973, the US Supreme Court ruled in the case of Roe v. Wade. The Court reasoned that a woman has a right to an abortion under the Constitution’s implied right to privacy. The Court’s reasoning has subsequently been derided by people from both the pro-choice and pro-life movements.

If you want evidence of how disconnected this thought process is, you need look no further than current abortion debates. In my experience, pro-choice advocates rarely, if ever, argue that abortion makes sense under a right to privacy. After all, your right to privacy doesn’t protect you from prosecution should you murder someone in the privacy of your home. If the fetus is a person with equal rights, right to privacy doesn’t begin to cover the right to an abortion. In contrast, if the fetus is not a person with equal rights, right to privacy isn’t even necessary. You don’t need to claim right to privacy to legally obtain other medical procedures. Medical treatment is usually involved with issues of bodily integrity.

However, note that Roe itself rejected unrestricted bodily integrity as a basis for abortion:

In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.

The reasonableness of the right to privacy argument implicitly and explicitly rests on the assumption that the fetus is not a person with equal rights. The Court acknowledged as much:

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.

However the Court rejected the assertion that the fetus is encompassed in the term “person” as used in the Fourteenth amendment. Meanwhile the Court did address, separately, the central question as to when “life” begins. The Court essentially refused to answer:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It is curious that the Court did not feel justified in determining when life begins, but felt justified in determining when it can be extinguished.

In Roe, the Court did grant the state some ability to restrict abortion:

For the stage subsequent to [fetal] viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

However this caveat was rendered effectively useless in a companion case decided by the Court the same day: Doe v. Bolton. The Court held that a state may not unduly burden a woman’s fundamental right to abortion by prohibiting or substantially limiting access to the means of effectuating her decision.

Doe v. Bolton is of particular interest because of the following quote:

…the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs….

This quote is important because it implies that “health” exceptions are not just for physical health, but for a wide range of issues. In fact, in this context “health” has become such a subjective term that Doe v. Bolton essentially legalized abortion for a great variety of reasons at any stage of pregnancy.

Since Roe and Doe, there have of course been populous cries for repealing Roe. Some legal minds within the pro-life movement believe it would be best to wait until the Supreme Court’s composition is more sympathetic to the pro-life cause. If Roe were overturned, the legality of abortion would be left up to each state.

Are Tyson and Landon Graham people?

As part of a series of articles on the five-year anniversary of Hurricane Katrina, CNN has the touching story of the Graham family. In July 2005, triplets Preston, Tyson, and Landon were born four months prematurely. Preston died shortly after his birth, but Tyson and Landon survived and were transferred to a children’s hospital in New Orleans. Of course, the family’s struggle had only just begun: Katrina was on its way.

Their parents, Laura and Jared Graham, came with them, but as Hurricane Katrina approached New Orleans, they were told they had to leave — while their babies, kept alive by ventilators, had to stay.

. . .

Children’s Hospital fared better than some others in New Orleans. It’s on relatively high ground and its generator was on the roof, enabling helicopters to refuel it. But it was still no place for premature babies in Tyson and Landon’s shape.

Laura finally heard they were being sent to Woman’s Hospital in Baton Rouge, 70 miles away.

. . .

The boys were among 140 premature babies the staff of Woman’s Hospital brought out of New Orleans in the four days after the levees broke. The hospital admitted 42 babies in the first 14 hours after the storm hit, and more kept coming. At the peak, 53 nurses were working per shift, up from a normal staff of 27.

Although Tyson and Landon lost their eyesight, and Landon requires special education, they are starting kindergarten on schedule. Their mother Laura proudly notes that the boys, who were born weighing less than two pounds each, are now “some of the tallest kids their age.”

Radical pro-abortion philosophers like Peter Singer and Mary Ann Warren believe that one’s status as a “person” is conditioned on certain abilities, which Tyson and Landon did not have when they were born just five months after conception. They would even argue that saving their lives was morally wrong. After all, evacuating 140 premature infants from New Orleans took tremendous resources; those resources should have gone toward helping “real people” instead. Such a great waste surely can’t be justified by the uncritical sentimentality of parents.

If they should not have been saved, what does that mean for their current personhood? “Well of course they’re people now— they’re five years old!” the opposition would no doubt protest. Yes: but they never would have made it to five if the utilitarian calculus had won the day. Under that theory, they are living on time that was unjustly given to them. How can you respect Tyson and Landon’s rights as persons if you believe that they shouldn’t be alive?