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Hawaii Supreme Court Ruling Has Important Abortion Implications

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From today’s Honolulu Advertiser:

The Hawaii State Supreme Court unanimously (5-0) overturned the conviction of a

…woman whose newborn infant died because she smoked crystal methamphetamine during her pregnancy.

The high court ruled that the homocide prosecution of Tayshea Aiwohi did not fall under state law because her unborn child was not a “person” when she smoked the drug.

This will no doubt come as a surprise to Scott Peterson who, just one year ago, was conviced of second-degree murder in the death of his unborn son, Conner.

In the Hawaii case, the mother

…said she used ice the three days before the birth and took a “hit” on the morning of (her son’s) birth.

The baby died two days later of what the city medical examiner’s office found was high levels of methamphetamine and amphetamine in his system.

The implications of this ruling are far-reaching.

As one justice stated in an opinion signed by four of the five judges (the fifth wrote a separate opinion), the “logical implication” is that a person can not be prosecuted for causing the death of a child by injuring the pregnant mother.

The reason for this is clear: An unborn child can not be a “person” when someone other than the mother causes his/her death at the same time that the same child is not a “person” if the mother causes his/her death.

I should think that in Hawaii, at least, this would mean that a doctor who does something prior to a baby’s birth that either kills, permanently maims or otherwise injures the child can not be prosecuted because, at the time of the incident, the unborn child was not yet a “person” under state law.

This would mean that a drunk driver who slams into the car of a pregnant woman and causes either the death of her unborn baby or a miscarriage can not be prosecuted for the same reasons.

There can be no doubt that this ruling will create years of litigation chaos in Hawaii.

If an unborn child is not yet a “person,” what is it? The property of the pregnant woman? (Note: She can’t be called the “mother” because there is no “person” to be a mother of!) Does a father have any claim on “ownership” of his unborn child? Or is the unborn child simply an extension of the woman’s body, like her arms or her legs?

Could the person causing harm to the unborn child be charged with personal injury against the pregnant woman? Or with destruction of property?

It is all absurd, of course. And the reason for this absurdity is this:

The Hawaii Supreme Court knows (and almost every other US Appeals Court knows) that to rule that the unborn child is a “person” would have a profound impact on the legality of abortion. Because the law permits a woman to voluntarily dispose of her unborn child at virtually any time during her pregnancy, it must follow that the unborn child is not a “person” and is, therefore, not in possession of any personal legal rights, including the rights of “life, liberty and the pursuit of happiness.”

Because of the illogic of the decision of the US Supreme Court in Roe v. Wade, the courts must twist and bend and contort common sense in order to protect this so-called phantom “Constitutional Right” for a woman to have an abortion without legal penalty.

The solution to this is clear.

The US Supreme Court must revisit Roe v. Wade and revoke the Constitutional interpretation on which that ruling was based.

This does not mean that abortion need be declared unconstitutional, of course. The most simple response is to erase the ruling from federal jurisdiction completely. All existing state laws (all of which permit abortion in varying degrees) would be untouched. This would return the abortion debate to state legislatures and, if necessary, to the US Congress to determine whatever limits or boundaries should be set both nationally and regionally.

It would appear to me that the definition of what constitutes a “person” under law should be a federal matter rather than a state decision. This has precedence in the federal abolition of slavery, a decision that effectively removed the right of the states to make arbitrary distinctions between what constitutes a person, half a person, or when a non-person can be deemed to be property (slavery).

The logical solution to this mess is to rule that an unborn child is indeed a “person” who does not have the full constitutional rights of a full-born person. Perhaps the age of viablility could be considered a legal turning point.

If the law allowed, a woman could be given the legal option of terminating her pregnancy at certain times under certain circumstances. This could even be voted into state constitutions as a “right” if legislatures and voters agreed.

In this scenario, state law could clearly state that the right of the woman to terminate her pregnancy trumps the right of the unborn child to be carried to full term and birth.

Such a law would preserve some status of personhood for the unborn and allow for the prosecution of those, other than the prospective mother, who might injure or cause the death or miscarriage of the unborn child.

Until people realize that the Gordian knot and the legal mess that is Roe v. Wade can not be unraveled but must be cut to pieces and disposed of entirely at the federal level, we will continue to have confusion and chaos in every legal matter that pertains to an unborn child.

Personal Note: As a Christian I believe abortion to be a grave moral sin; not an unforgivable sin, certainly, but a sin nonetheless. Within the pluralistic context of American society I will do all I can, within the law, to affirm the personhood and protect the human rights of the unborn.

Even so, it is not the Christian Church’s role to impose its moral standards on those who have not accepted the Christian faith. It is, however, our moral duty to attempt to pursuade and to influence public opinion on this and many other important matters.

With abortion and other difficult issues, Christians should be very careful to remove the beams from their own eyes before even thinking about pointing out the specks in everyone else’s.

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About Bird of Paradise

  • Nancy

    Actually, altho I am a rabid feminazi where women’s choice is concerned, I rather like your reasoning & proposed solution as far as granting women unopposed ‘rights’ to terminate up to a certain point, yet keeping a measure of protection for those who want to have the baby, altho I personally would extend those rights to include later-term unborns found to have developmental problems such as mongolism which cannot be fixed. Interesting post, very. Thanks.

  • http://www.gschoppe.com/blog/ Greg Schoppe

    How can we, morally, admit that an unborn baby is a human, and then claim its right to life is trumped by “the ‘right’ of the woman to terminate her pregnancy”? There is a distinct gap in logic here. The same gap that allows us to define the difference between a human and a fetus by a few inches of flesh.

    If a fetus is defined as human, and abortion is still legal, we set the precedent of some human’s ease of living trumping others right to life. At that point, when do six year olds become enough of a nusance to kill? When is Grampa too hard to care for? When do the homeless become a blight on society? When do we decide that Jews, blacks, and gypsies need to go so that we’re a bit more comfortable?

    You may argue that these ideas are monstrous and absurd; but, if you truly see a fetus as a human being, there is absolutely no difference. A second Holocaust is occurring right now, across the world, we simply don’t recognize it.

    There have been approximately 46 million abortions in the US alone since 1973. There were only 6 million Jews killed during the holocaust. If fetuses have even 1/6th of the rights of a fully delivered human, abortion is still a greater genocide.see this

    Our manner of recognizing humanity, and the rights it entails needs to be reconsidered as a whole. It is obviously a murder when a man beats his pregnant wife with the direct intent to kill her baby. Why, then, is it not murder when she herself does it (or has a “professional” do it for her)? Why do people go giddy over a baby ficking its mother’s womb, saying “oh look, he’s awake”, only to vote to allow a mother to kill it?

    And, please, don’t argue the “its her body” line. A fetus has entirely different, entirely human DNA it is definitely not “her body”. It may be within “her body”, but that makes murdering a baby an issue of “her comfort”, which doesn’t hold up for me, no matter what the circumstance.

    The “what if its rape?” argument doesn’t hold up either. The VAST number of abortions are not cases of rape; and, even when they are, rape doesn’t justify murder. Just as you can’t kill the rapist, you can’t kill the baby. The baby, if concieved, is an ongoing part of the crime, not an effect, and is a victim as well.

    The argument of safety doesn’t hold at all. saying, “if we make it illegal, they’ll go to back alley abortionists” shouldn’t effect the decision. Because murder isn’t legal, many murderers have to put themselves in grave danger to commit their crimes. Some even die. However, that doesn’t make murder ok. Laws cannot be held back by the knowledge that some people will break them. Those people are called criminals. They choose to break laws, so the law cannot worry about their safety in commiting their crimes.

    I’m sorry to be so long winded, but I have attempted to understand the logic behind abortion for years now, and have come to my understanding through quite a lot of research. I feel the need to state these particular fallacies because, they are the ones that EVERYONE in college spouts mindlessly, along with the equally mindless, “You’re a man, you don’t know what childbirth is like”. I particularly love that one when spouted by someone with no children. I feel like the only truly pro-life college student in the world; and that’s a really horrific thought.

  • RedTard

    Greg,

    Should a woman be forced to support another being inside her? I don’t think the government can make you support someone with your own flesh and blood any more than they can force you to give a dying kid a lung transplant. Think of it more as an eviction than a death sentence. Once the fetus is viable outside the womb evict it and put it up for adoption. If it is unable to survive then it will be aborted. It is a simple, somewhat logical compromise.

    Most people would agree that there is something unsettling about ending a pregnancy very late in the term. A baby 10 minutes before it pops its head out is clearly a living, thinking, human being. An embryo 10 minutes after conception is not. Somewhere in between the miracle of life occurs. For most people the debate has shifted into what point in time that actually is.

    I can’t understand why we haven’t come to some good compromise on this. Even Nancy, with whom I rarely agree, would be willing to curb late term abortions. If we cared about the possible suffering of the unborn we would promote the morning after pill as an alternative instead of blocking it’s use.

    The increasing small minority of radicals on each side have thus far kept us apart. These radicals fear that any compromise will be viewed as weakness and totally destroy their position.

  • http://www.gschoppe.com/blog/ Greg Schoppe

    How is it logical to force the death of a human for another’s comfort? Its not like we’re talking about the permanent obligations of childrearing, we’re talking about 9 months, and of those, only a few cause any real inconvenience. The government shouldn’t force you to support the child, it should force you not to remove support, in the same way that throwing a small child out of your house in winter, (leading to its death) is a crime. There is no way (currently) to transfer the custody (and implied support) of a fetus, it is the parent’s obligation to support it

  • http://alienboysworld.blogspot.com Christopher Rose

    Bird of Paradise:

    Your article is an outstanding example of clear sighted fresh thinking on the USA’s uniquely problematic attitude to abortion. Given that you are a christian and hold the views you do, it is an even more impressive contribution to the debate and the only fresh thinking on the subject I have heard for years. Thank you.

  • Bill B

    As a Christian I believe abortion to be a grave moral sin; not an unforgivable sin, certainly, but a sin nonetheless. Within the pluralistic context of American society I will do all I can, within the law, to affirm the personhood and protect the human rights of the unborn.

    My emphasis.

    I’m just curious, but do you support the criminalization of abortion in say the first trimester?

    If so then this makes no sense.

    Even so, it is not the Christian Church’s role to impose its moral standards on those who have not accepted the Christian faith.

    If you simply want to lobby to change hearts and minds to your position, that’s certainly more commendable than those like say Greg here who, it seems, would simply impose his beliefs on everybody else.

    I’m not thoroughly familiar with the Scott Peterson case, but by what, I’m assuming state law, is he charged/convicted with/of regarding the death of the unborn baby? As far as I’m aware he was convicted of 2nd degree murder of the fetus and abortion is still legal in CA. Is this conviction the result of some official recognition of fetal personhood?

    I also disagree with your take on Roe. It’s about the right to privacy (I know, where’s this right in the Constitution?) and the viability cutoff was an attempt at balancing the scales.

    While not so much an attempt at proclaiming when life begins, it’s more an attempt at finding a reasonable balance between a womens right of self determination and her responsibility of making this decision in a reasonable time frame, barring extenuating circumstances.

  • Ruvy in Jerusalem

    Bird, excellent article – excellent analysis – and an important afterword that all should understand.

    What made me favor abortion “reform” (legalizing abortion) in the state of New York in 1970 was the remark of a Catholic prelate on TV that abortion should be continued to be banned to protect “good Catholic girls”. I had seen too many “not so good” Catholic girls, and additionally, could see no reason why I, as a Jew, had to swallow Catholic dogma on the state’s lawbooks.

    I think what you are saying, if I understand you correctly, is that the US congress has to define “person” – and that the state legislatures have to define what is and isn’t criminal behavior.

  • Luke

    Yeah, this is criminally negligent homocide or something, like if the day before the delivery she suddenly decided to shove a coat hanger up her pussy and stab the poor bastard to death, and later she said, I was shoving a coat hanger up my pussy for the fun of it, it was just a coincidence that there was a baby in there getting stabbed because he wouldn’t move out the way, it’s my body, I can stick a coat hanger up my pussy if i want, whether there’s a baby in there or not.

  • http://www.tbirdofparadise.blogspot.com Bird of Paradise

    Luke, Please apologize and then go away. Thank you.

  • steve

    Make abortions illegal. It is murder. We should revert to having those “back alley abortions” if women really want one, let them endure some pain along with the life they are throwing away. go ahead, shove that coat hanger way up into the unknown…..

    better yet…show all of the Pro-choicers an unborn child’s brain being vaccummed out by an abortion clinic doctor. those doctors are no better than Heinrich Himmler. their death camps have the nazi’s beat by nearly forty million!

  • Bill B

    Bird,
    Too bad your conciliatory tone and your tact isn’t rubbing off on some other folks.

  • http://www.tbirdofparadise.blogspot.com Bird of Paradise

    I do notice that folks like Bill and Luke do not have URLs or any other method of determining who they are or where they are from. People who say “pussy” in polite conversation are not likely to present their particular argument in a very attractive light. Perhaps that is because their argument may not be very attractive in the first place.

    Bill, especially, rants and raves in total irrellevance to the context of this thread. It would appear that he and Luke have some sort of fixation on certain aspects of female anatomy that blinds them to the serious subject of the value of human life both before and after birth.

    To Bill I repeat what I posted earlier for Luke: Please apologize and then go away. Thank you.

    And, out of respect to a decent and fair question: Do I support the criminalization of abortion in the first trimester? No. I do not. That does not make it any less a sin from a Christian standpoint. It is the role of the Church to proclaim righteousness, not impose it. The Church can only expect Christian morality to be practiced by….uh…..let’s see now…..Oh….I remember….by Christians! Duh!

    By the way, have any or you looked at a woman (or a man) with lust in your heart lately? It’s a sin. But I don’t want to enact legislation against it.

  • Bill B

    Bird,

    Exactly where am I “ranting and raving”?

    Exactly what have I written that is so far off the thread, and as such is not worthy of your consideration?

    Could you possibly be confusing me with Steve?
    ============

    And, out of respect to a decent and fair question: Do I support the criminalization of abortion in the first trimester? No. I do not. That does not make it any less a sin from a Christian standpoint. It is the role of the Church to proclaim righteousness, not impose it. The Church can only expect Christian morality to be practiced by….uh…..let’s see now…..Oh….I remember….by Christians! Duh!

    I suppose you can answer a “decent and fair question” however you see fit but all Christians don’t share your view about imposition, so it’s hardly the slam dunk you seem to infer. Although for some reason I didn’t fully digest your “within a pluralistic american society” line or I likely wouldn’t have asked the question.

    =============
    I thought I gave you a semblance of a compliment here-

    If you simply want to lobby to change hearts and minds to your position, that’s certainly more commendable than those like say Greg here who, it seems, would simply impose his beliefs on everybody else.

    And an out and out compliment here-

    Too bad your conciliatory tone and your tact isn’t rubbing off on some other folks.

    ===========
    Please forgive me for not living up to your “discourse” standards. (sarcasm not edited)

    Sheesh!

    btw – your url isn’t working for me.

  • Bill B

    And what anatomical part am I fixated with?

    The more I look at your response the more I’m thinking you need to be more fixated with the comprehension portion of your brain.

    No apology, but bye, bye.

  • http://www.tbirdofparadise.blogspot.com Bird of Paradise

    Bill. My humblest apologies. I typed the wrong name in my last post. It was supposed to read “Steve.” I wish there was some way for me to delete or correct what I wrote but blogcritics does not offer that feature. Here I go, trying to be all civil and straightforward and I go and pull a moronic crash and burn instead. GrovelGrovelGrovelGrovelGrovel…..

  • Bill B

    Bird,
    I suspected as much. Apology accepted, and I apologize for my snide retort in #14.

  • http://www.tbirdofparadise.blogspot.com Bird of Paradise

    Bill, I am so glad you came back to read my apology. I am even happier that you accepted it! Aloha.

  • David

    Am I right in understanding how this works? Bird of Paradise apparently wrote a review of the book shown above, then everyone else chimes in? Yes?

    Sorry, I usually avoid blogs like the plague. I found this web page doing some research on abortion, abolition (slavery), and the Supreme Court’s rather glaring history at stripping States Rights from the states. So the comment in the original book review mentioning “Federal abolition of slavery” is what brought me to this rather lively spot. Not my fault, Sergei sent me (google). Congratulations.

    Bird, I see that you have a URL, but it seems to be full. I like some of your comments and would like to pick your brain for resources for a book that I am preparing on these topics. Is there some way you can open up your URL for contact?

    I just deleted the next, oh, 60 lines–decided to spare you all. You’re welcome. Read the book.