Three cheers for the Keystone State! The Pennsylvania Superior Court, in an opinion authored by Judge Olszewski, has come right out and said what many people have known for a long time: the laws allowing abortion are exceptions to the laws which prohibit murder.
The Pennsylvania Superior Court, in Commonwealth v. Booth, held that the killing of a baby in the womb by the use of an automobile is an act of homicide. For the lawyer types out there, the case is reported at 729 A.2d 1187 (1999).
As the court relates, "On June 29, 1997, [Booth] was driving his vehicle along Hahntown-Wendell Road in North Huntingdon Township when he allegedly failed to stop for a stop sign and struck the car driven by Nancy Boehm. Mrs. Boehm, who was approximately 33 weeks pregnant at the time of the accident, was riding in the car with her husband. Both were seriously injured, and Mrs. Boehm’s unborn child died in her womb as a result of injuries sustained in the accident. On July 9, 1997, the Commonwealth charged [Booth] with eight counts, including one count of homicide by vehicle while driving under the influence."
This much of the opinion should not be remarkable. A man, driving while drunk, crashed into a car, killing a baby who was less than two months shy of birth. Murder.
The defendant argued that he could not be convicted of vehicular homicide for killing a baby in the womb due to the fact that the law does not recognize babies in the womb as "persons" in the legal sense. That is why abortion is permitted. If babies in the womb were "persons," then abortion would be murder, wouldn’t it? So the defendant argued.
The Superior Court rejected this argument.
What is remarkable about this decision is that the court concedes that the laws legalizing abortion have carved out an exception from what is otherwise murder. As so many commentators have argued, baby killing is legally protected murder.
Formerly, Pennsylvania (and many other states) had followed a rule of law known as the "born alive" rule: unless a baby was born alive, no case could be brought as a result of the wrongful death of that baby. The reason for this rule, as the Booth court explains, was that concerns "about medical knowledge and proof of the cause of death" required a live birth to establish personhood. In other words, it was unfair to a criminal defendant to be charged with killing a baby who might not have lived to be born.
With advances in medical science, however, the Superior Court ruled that
this court must accept that the viability of a fetus and the cause of death can be established and proven in ways that are easily presented and explained to a jury. Thus, the central rationale supporting the "born alive" rule no longer exists. It is time for the courts of this Commonwealth to react to advances in medical science rather than ignore such progress.
Based upon this reasoning, the Court held that "Viable fetuses not yet born alive are "persons" within the meaning of the criminal laws of general application in this Commonwealth."
Whoa! Doesn’t that mean an end to abortion in Pennsylvania? Not quite (and not yet).
As the Court continues,
We strongly note that nothing in our opinion is meant to contravene specific statutory language written to the contrary of this decision. Our decision applies only in cases where criminal laws protect "persons" in the most general terms. The Crimes Against the Unborn Child Act and the Abortion Control Act are not before this Court and are not affected by our decision.
As the court adds in a footnote, "Thus, nothing in this opinion should be construed as altering the forceful, definitive legislative statements concerning abortion."
In other words, don’t follow this reasoning to its logical conclusion and decide that abortion is murder. The Pennsylvania legislature has already spoken on that point, and they have decided that babies in the womb may be killed so long as the killing is done with the consent of the "mother." Thus, while abortion is logically an act of murder, Pennsylvania has chosen to allow this one kind of murder while disallowing others.
It is refreshing to see a court concede — even in such a roundabout way — that to kill a baby is to commit murder. It refreshing to see a court concede that the laws allowing abortion are an exception to the general laws governing the ability of adults to kill infants in the womb, and to kill other human beings generally.
It is also refreshing to see a court — unlike the United States Supreme Court in Roe v. Wade — fulfill its function without overriding the laws created by the legislature. As the language above demonstrates, the court was careful not to overstep its bounds.
Despite this fact, the court may have overstepped its bounds nonetheless.
On December 3, 1999, the Pennsylvania Supreme Court granted an appeal to Booth. The case remains on appeal.
The issues on appeal will likely be the issues raised in the dissent of Judge Del Sole, the President Judge of the Superior Court, who argues that civil liability for the death of unborn babies, which the Pennsylvania Supreme Court recognized in the 1985 case of Amadio v. Levin, cannot be extended to create criminal liability. The reason, Del Sole argues, is that Pennsylvania has abolished common law crimes, instead requiring the legislature to pass a law to make an act a crime.
He may have a point, and it will be interesting to see how the Pennsylvania Supreme Court handles the case.
Those who wish to end the lawful killing of babies in the womb may be wondering what to do at this point. The path is simple, but it will take a long time and a great deal of patience, prayer, and fasting: change the minds of the people of Pennsylvania, and of the United States, so that we can elect a state legislature and a federal legislature that understands that to kill an infant is to commit murder. Only then, when peoples’ attitudes have changed, will the laws governing murder be consistent.
Mr. Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.
© 2001 David Dieteman