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.