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This is some heavy lifting – I haven’t even had my morning coffee yet
I’m feeling rather depressed this Monday morning, after watching my beloved Eagles suffer a crushing loss yesterday. So I’m going to bring you all down deep into the Monday morning funk with me. And I think self-inflicted abortion should do the job.
There’s this woman in Virginia, 22-year-old Tammy Skinner, who already has two kids and not much money to her name. When she found herself pregnant again, she decided she wanted an abortion, but her boyfriend wouldn’t pay. So Skinner ended up carrying the pregnancy to term only to, on the day she was due, shoot herself in the stomach to kill the fetus.
Since Virginia law makes it illegal for someone to administer or cause an illegal abortion, Skinner was arrested (the abortion is considered illegal since it was during her third trimester). Now, the law in question bans “any person” from administering or causing such an illegal abortion, but Skinner’s lawyers argued that this doesn’t actually apply to Skinner herself because there is an “expectant mother immunity.” While the argument may seem like a stretch, the court sided with the defense, ruling that the law differentiates between a mother self-aborting and someone else doing it (so in the court’s reasoning there’s a concrete difference between Skinner pulling the trigger herself and someone else pulling the trigger).
Needless to say, anti-abortion activists are furious over the ruling. I’m going to leave the whole abortion aspect of this for another day, as that’s more mess than I’d like on my plate this miserable Monday morning. But the legal issues are rather sticky too. Apparently, this Virginia judge isn’t the first to ever rule this way, as there is similar case law in Florida and Georgia. That doesn’t make the decision any less confusing to me. The prosecution argued that “any” should be understood to be an indefinite word meaning “all,” unless the legislation includes some restriction, and that seems right to me. Unless there’s a clear intent from the state legislature that they intended “any person” to exclude the actual mother, it seems like she falls within the statute.
Of course, that Skinner felt this was her only way out makes this a tragic story, and that tragedy would be magnified were she to be convicted. And there’s also some messy societal concerns, as raised by Skinner’s attorney - if you apply this law to the mother, how far do you go? Does this mean you have to delve into the details of every late-term miscarriage, trying to figure out what the mother’s intent was (i.e., did she take steps to cause the miscarriage because she didn’t want to carry to term)? Of course, that brings us right back to the abortion issue, and I suspect many anti-abortionists would respond “absolutely.” This argument makes it hard for me to say whether the court is wrong, form a purely “right vesus wrong” standpoint. But it doesn’t change my opinion that the court is wrong from a legal standpoint. It really seems like the court is reading something into the law that just isn’t there right now. While that may produce the “right” outcome (again, I’m not sure where I personally would come down on the matter, since it takes more than 5 minutes of early Monday morning pre-coffee thought), it just seems a little too “activist judgey” for my liking (and I can’t even believe I just typed that, as I’ve never been one to cry “activist judge, activist judge” since I think those cries are usually misguided and not actually being directed to courts that are actually overstepping their bounds).
Barring something like an unconstitutional provision, it’s the legislature’s role to decide what limitations it wants to place on its statutes. This structure of government allows for an open debate on the “right versus wrong,” and that debate is lost when a court takes up the issue instead. Again, I don’t know what the “right” answer is, but I hope that the Virginia legislature, and other state legislatures with similar laws, give some actual consideration and debate to this matter and make it clear which way their laws are intended to go. Needless to say, anti-abortion activists are furious over the ruling. I’m going to leave the whole abortion aspect of this for another day, as that’s more mess than I’d like on my plate this miserable Monday morning. But the legal issues are rather sticky too. Apparently, this Virginia judge isn’t the first to ever rule this way, as there is similar case law in Florida and Georgia. That doesn’t make the decision any less confusing to me. The prosecution argued that “any” should be understood to be an indefinite word meaning “all,” unless the legislation includes some restriction, and that seems right to me. Unless there’s a clear intent from the state legislature that they intended “any person” to exclude the actual mother, it seems like she falls within the statute.
Of course, that Skinner felt this was her only way out makes this a tragic story, and that tragedy would be magnified were she to be convicted. And there’s also some messy societal concerns, as raised by Skinner’s attorney - if you apply this law to the mother, how far do you go? Does this mean you have to delve into the details of every late-term miscarriage, trying to figure out what the mother’s intent was (i.e., did she take steps to cause the miscarriage because she didn’t want to carry to term)? Of course, that brings us right back to the abortion issue, and I suspect many anti-abortionists would respond “absolutely.” This argument makes it hard for me to say whether the court is wrong, form a purely “right vesus wrong” standpoint. But it doesn’t change my opinion that the court is wrong from a legal standpoint. It really seems like the court is reading something into the law that just isn’t there right now. That may produce the “right” outcome, but, and I can’t believe I’m even about to type these words, that may just be a little too activist for my liking.
Barring something like an unconstitutional provision, it’s the legislature’s role to decide what limitations it wants to place on its criminal statutes. This structure of government allows for an open debate on the “right versus wrong,” and that debate is lost when a court takes up the issue instead. Again, I don’t know what the “right” answer is, but I hope that the Virginia legislature, and other state legislatures with similar laws, give some actual consideration and debate to this matter and make it clear which way their laws are intended to go. In doing so, this opens the debate up to the public, and that’s not usually a bad thing (though some in the federal government might argue otherwise…ahem…I’m looking at you Bushy!).
