31

Suppose a partner to a pregnant woman gave her an abortion pill which successfully aborted the pregnancy. Suppose that this was done in a non-violent way, unbeknownst to the woman.

One could argue this is murder, however, if the woman took the abortion pill herself, in most parts of the USA and Europe, it would be perfectly legal and not considered murder.

I'm broadly interested to know what charges could be brought against the partner? In particular, I'm interested in why, in a locality where abortion is legal and not legally considered murder, could be compelled or forced abortion by a third party be considered murder?

I'm interested in the context of the USA and Europe in particular.

This stems from this article, whereby a man held his partner at gunpoint and forced her to ingest an abortion pill. He was charged with murder, despite abortion being legal at the time.

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  • 41
    The fact that having or performing an abortion is legal does not mean forcing someone is. Having sex is legal also, but drugging someone and then doing it, or forcing them at gunpoint is rape. The first paragraph and title Q are about tricking her, possibly different than the bolded Q. – Damila Dec 14 '19 at 19:26
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    @Damila: the point of the question is: what exactly is the crime being commited? – Michael Borgwardt Dec 15 '19 at 21:53
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    @Damila The question isn't about whether or not forcing someone to have an abortion is legal. That's a goalpost shift. The question is about it being murder, which is usually defined legally as the unlawful killing of a human being. The OP is using this question as a thinly veiled challenge of the law, since a common pro-choice standpoint is that a fetus is not human, and therefore does not seem to apply to any current murder definitions. As pointed out in one answer, some jurisdictions understand this contradiction, which is why they have crimes defined such as "fetal homicide". – Clay07g Dec 15 '19 at 23:31
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    Counterquestion might be, what are the ramifications of a woman aborting a pregnancy that the father is interested in keeping. – dotancohen Dec 16 '19 at 13:28
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    "Suppose that this was done in a non-violent way[...]" Excuse my pedantry, but the action may just be inherently violent. Violence is more general than the application of mechanical force. – Emilio M Bumachar Dec 16 '19 at 15:05
58

Although abortion is legal in the US, not everyone is allowed to perform an abortion. In Washington, the law allows a physician to terminate a pregnancy, and recognizes a woman's right to choose to have an abortion. An abortion performed by anyone else is not legal, and performing an illegal abortion is a class C felony. There are "plan B" pills which are legal in the US and levonorgestrel is available without a prescription, but the mifepristone and misoprostol regime is not available without a doctor's orders. In this scenario, the partner will have performed an illegal abortion, and is guilty of a controlled substances crime. In some states, there is a separate crime of fetal homicide. In Washington, this is covered under 1st degree manslaughter, a class A felony, if one "intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child". "Any injury" does not require "great violence" or "striking". It is also the class B felony of poisoning which includes slipping in a harmful substance with intent to harm another person, as well as assault.

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  • Does this answer imply that performing an illegal abortion is a more significantly grievious act under the law than doing so without the mother's consent? I say that because your answer doesn't seem to address the latter issue. From a moral standpoint I would have thought the lack of consent was at least as serious (given that abortion is a morally contentious issue, while administering drugs without consent is not). – quant Dec 16 '19 at 22:05
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    On the contrary, illegal abortion is only a class C felony whereas the other crimes are class B and class A felonies. The more severe penalties attach to the crimes involving lack of consent. – user6726 Dec 16 '19 at 22:44
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    @quant, "class A felonies" (which killing an unborn child falls into) are things like murder or arson of an occupied building, while "class C felonies" (which is what performing an illegal abortion is classified as) are things like threatening to hit someone or slashing the tires on a fire truck. – Mark Dec 16 '19 at 23:03
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    Just to clarify: Plan B is emergency contraception, not an "abortion pill". It prevents pregnancy, but it cannot terminate a pregnancy any more than swallowing a package of birth control could. Is this answer indicating that preventing a woman from becoming pregnant would be considered an illegal abortion? – RToyo Dec 17 '19 at 15:06
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    Administering the mifepristone and misoprostol regime in addition runs afoul of laws regarding distribution of drugs, which is not the case with an OTC contraceptive levonorgestrel. Insofar as the OP was not clear what was intended by "abortion pill", my answer distinguishes the two possible interpretations, and the additional charge related to administering the two-pill regime. – user6726 Dec 17 '19 at 21:26
23

In Germany, the situation is somewhat unique because (following a compromise reached in 1976 and a revision in 1995) abortion is illegal but the "offence is not considered fulfilled" if

  • done by a physician
  • within the first 12 weeks of the pregnancy
  • on the request of the pregnant woman
  • who has received counseling

The case in question here violates most of those conditions and is therefore illegal, not just as a simple abortion, but actually as an "especially serious case" under §218(2)1, carrying up to 5 years of prison.

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7

In the United Kingdom, there is an offence of child destruction, codified in the Infant Life (Preservation) Act 1929

1 Punishment for child destruction.

(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive.

That is, the abortion of a foetus of more than 28 weeks' gestation is an absolute offence (albeit with a statutory defence); before that time there is a question of interpretation of "capable of being born alive" — this could be interpreted as "capable of being born alive at any time up to the natural term" or "capable of being born alive at the time of the offence", and the result of those tests would be different for a four-week foetus, for example.

Section 2 goes on to mention the Offences against the Person Act 1861, which outlaws administering drugs or using instruments to procure abortion; this would appear to satisfy any ambiguity in the test in Section 1: a foetus not capable of being born alive at the time of the offence was still aborted.

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.

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  • In the example given - since the highlight is that the partner did this without knowledge of what the pill would do, the prosecution would have to demonstrate the intent. It's questionable grounds; but the line that I would go with if I was the defence lawyer. – UKMonkey Dec 16 '19 at 16:11
  • @ukmonkey I see nothing about the partner having no knowledge of the pill's effect in either the question or the linked article. In any case, if the mens rea is not present for murder/destruction, a charge of manslaughter or culpable homicide would be available. – Andrew Leach Dec 16 '19 at 16:18
  • Fair point - I misunderstood "unknowingly" on first read – UKMonkey Dec 16 '19 at 16:19
  • @sameriver Did you read the extract from the Offences against the Person Act? It is an offence to procure your own abortion. (The morning-after pill isn't an abortifacient: it prevents implantation.) And the 1929 Act deliberately says "person" without specifying the sex of the offender. – Andrew Leach Dec 16 '19 at 18:19
  • Is the penalty still penal servitude for life, or has that been changed? – Mark Dec 16 '19 at 23:07
2

In the U.S., this would at the very least constitute a charge of adulteration or poisoning usually have a variety of names for the crime depending on the state. Federally it's a second degree assault. There have been several cases in the United States where an assailant killed the fetus of a woman who the assailant was not aware was pregnant at the time of the assault and have had a variety of different charges placed against them for the death of the child, even if the mother survives. Generally, this might be based on jurisdictional level as well as the child's viability outside of the womb at time of assault and the political feelings to abortion in the general area (with Democrat states tending to not charge for the child or charge to an otherwise lesser included sentence such as assault while Republican states may try the case as a murder (second degree if the defendant can easily show they had no idea the woman was pregnant, but might include First Degree.). There is certainly an argument that First Degree Murder could follow from drugging charges as a Felony Murder (they never intended to kill someone, but since drugging anyone is a felony crime, then the death of the mother's child would constitute a murder.).

A lot of the problems in giving a definate U.S. answer is unlike the U.K., the U.S. is not a unitary state and the national government does not normally prosecute crimes for which the state has laws to prosecute, so this problem needs a specific jurisdiction.

As a general rule in U.S. Law, it is considered a crime if a pregnant woman loses the child through criminal action comitted against her, typically ranging from Assault up to Murder, and the mother is not typically guilty of comitting a crime if she recieves an illegal abortion from anyone else (i.e. If the abortion occurred over any time limits within a state's codified laws.

In the case of Kermit Gosnell, a Philidelphia Abortion Doctor who was arrested for performing several illegal abortions was charged with 8 counts of Felony Murder, of which he was convicted of 3 counts plus a charge of manslaughter in the death of one of the mothers. He was charged with 24 counts of illegal abortion, of which he was convicted of 21 counts. The 8 charges of murder all stemmed from incidents where the state felt it could prove that the infant was killed after the "birth" while the late-term abortion procedure was being performed (that is, the mother went in for an abortion... during the procedure, the child was removed from the mother while still alive and killed after the removal... suffice to say, I didn't look into the circumstances of what happened, other than to show that the victims of each count of murder were proven to meet the legal definition of "birth" for the purposes of the "abortion" to be legally murder. I do think one of the standards they used to prove this by was the children had oxygen in their lungs, which would not be possible prior to birth.). There is an article on Wikipedia if you wish to go into further details as to what he specifically did, and I would highly recommend you do not do so while eating lunch as I had done. Gosnell is currently serving life in prison without possibility for payroll after agreeing with prosecutors not to appeal the case in exchange for prosecution not perusing the death penalty.

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  • Regarding your second paragraph, the laws are not necessarily the same in all of the UK. For instance, abortion was only legalized in Northern Ireland this very year, though none have yet been performed. – Robert Furber Dec 17 '19 at 1:43
  • @RobertFurber: Unlike the U.S., the U.K. lets Scotland and Northern Ireland make up their own rules... they can take back the power if they so choose in Parlement. The powers are retained in the United States and Congress needs a miracle (easier than a constitutional amendment) to change their powers. – hszmv Dec 17 '19 at 13:12
1

At the very least, in the UK it would be an abuse of the Offences Against the Person Act 1861, Section 23 (or 24).

Section 23 reads:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable . . . F1 to be kept in penal servitude for any term not exceeding ten years . . . F1

Section 24 reads:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . . F1 to be kept in penal servitude . . . F2

According to the Poisons act of 1972, medicines are exempted from being considered poisons, in general, but the Offences Against the Person Act specifically lists "any other destructive or noxious thing."

You could argue the case under section 23 in that a chemical abortion endangers life and you might win or not depending on a number of factors. However, you could almost certainly meet the threshold of "annoy" as laid out in section 24.

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1

The fallacy of methods

Suppose your company builds space probes which analyze asteroids for mineral value. You are testing a space probe, and you use its engines to redirect an asteroid so it hits your ex-wife's house. There's no law against murdering people with an asteroid. The law hasn't caught up to this novel approach. So I get off scot-free. Right?

Wrong. The law doesn't care about methods.

So you are saying this should be different because you used an abortion pill instead of some other method. Nope. No bearing on the subject at all. If non-consensually terminating the fetus is illegal (which it is, in most of the jurisdictions you name), you're guilty of it.

Is it illegal? In most of the jurisdictions you list, abortion is legal, but the path to legality was tortuous (Roe v Wade, coat hangers, all that). A strong argument against legalizing abortion is the image of a woman being dragged kicking and screaming to an abortion, by a man - or worse, a court! As such, it would greatly aid society's comfort with abortion legality if the question of coercing, manipulating or otherwise compelling an abortion was addressed in statute. As such, I expect most of them will have codified law to prevent that.

After all, non-consensual abortions are one place almost everyone stands together. They're either against abortions generally, or against denial of choice for the woman.

Methods may be illegal, also and separately

For instance it's illegal to murder someone. It is also illegal to shoot someone with an enhancer if the effect is death. In that case this is not one crime, but two.

Giving a prescription medicine to a person not on the prescription is illegal (and dangerous, because the prescribed person has been cross-checked for allergies and drug interactions. Not clever at all to accidentaly kill the mother too!)

You would be using the abortion pill inconsistent with its labeling and instructions, which is illegal. Seriously.

  • If your application method is nonstandard, e.g. breaking open the pill and dissolving it in a drink.
  • If it says "this is for use by a woman who wishes to terminate her pregnancy".

Using a medicine improperly, in a manner which causes fatality, may well be an enhancement on the general illegality of improper use.

Wow, I just had a proper reason to use a gender-forced pronoun.

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    "If non-consensually terminating the fetus is illegal ..." - yes, but is it illegal? The question states the premise that termination is legal in general, so the question hinges on the "non-consensually" part. It's likely that that's still illegal, but it's not actually a part of the premise, it's part of the answer. – IMSoP Dec 16 '19 at 17:22
  • @IMSoP OP is being intentionally vague about jurisdiction. OP names at least 80 different jurisdictions, and that's closeable as too broad. When someone asks a question partly on-topic and partly off-topic (too broad) and the on-topic part can stand as a question, one should answer the on-topic part and disregard the off-topic part. – Harper - Reinstate Monica Dec 16 '19 at 17:28
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    @Harper-ReinstateMonica When you believe that the question should be closed as too broad, then you should vote to close as too broad and refrain from posting an answer at all. – Philipp Dec 16 '19 at 17:36
  • @IMSoP having thought further on it, I see your point and I am in error. OP‘s secondary question isn't about jurisdiction, but whether the "western world" would likely make non-conseenual abortions illegal. I added a paragraph to discuss that. – Harper - Reinstate Monica Dec 16 '19 at 18:24
  • @Philipp I don't agree a mostly-good question should be VTC'd because a fraction is off-topic. However reviewing the question, I no longer believe it is off-topic, and that part also feels answerable. Note the section in bold. – Harper - Reinstate Monica Dec 16 '19 at 18:32
0

Independent of the actual act of murdering or unlawfully ending an unborn child or destroying a not-quite-human "thing", whichever way you want to call it, there are at least three serious issues which are without any doubt felonies both in Europe and the USA:

  1. Bodily harm using poison (the "using poison" part is important insofar as, at least in most European countries, it doubles the sentence and bars probation or monetary penalty, that is, you go to jail). An abortion is without doubt serious bodily harm, both physically and psychically.
  2. Endangerment. Not the less serious kind (wanton negligence), but the other, nefarious kind (deliberate, and victim not being aware). This will almost certainly bar probation or monetary penalty, too. An abortion is not just somewhat uncomfortable and associated with some minor troubles, but can possibly end lethal. Which, by administering the drug covertly, you condone.
  3. Illegal administration and/or trade of controlled drugs (abortion pills being strictly prescription-only). Possibly illegal acquisition of forementioned, too (the pill had to come from somewhere, after all). So that involves either getting it on the black market, or document forgery, or bribing a physician, or something the like. And, of course, giving it to the woman without being authorized to do so.

In the case of "pointing a gun, forced ingestion"... well, pretty obviously it doesn't get any better in that case (threat, coercion, gun usage, gun ownage?).

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