Oklahoma Fetus-Defense Bill Does Not Make Abortion Less Legal

By Megan Carpentier  |  April 3, 2009 | 6:30pm

Oklahoma is about to pass a law (about which we have gotten a lot of tips) that allows pregnant women to claim self-defense if they kill an attacker, even if he’s only attacking their pregnancies.

The law was inspired by a case in Michigan where a woman killed her partner after he began punching her belly to try to force a miscarriage. She was charged with and convicted of manslaughter, and she miscarried the quadruplets she was carrying. Prosecutors in that case argued successfully that since the woman was herself in no immediate physical danger, the right to self-defense did not extend to her unborn children.

The new law makes it clear that a woman can claim self-defense if she is being harmed in an effort to kill her unborn children — which is itself already a crime. Some people have e-mailed us worried that this is some sort of end-run around abortion law, or that it would allow fundamentalist pregnant women to kill abortion doctors. Neither is true, but we can go straight to the bill itself.

First off, as legislation tends to, it starts off with its purpose, to help the court determine legislative intent if there are any challenges to the law down the road.

The Legislature finds that:
1. Violence and abuse are often higher during pregnancy than during any other time in a woman’s lifetime;
2. Women are more likely to suffer increased abuse as a result of unintended pregnancies;
3. Younger women are at a higher risk for pregnancy-associated homicide;
4. A pregnant or recently pregnant woman is more likely to be a victim of homicide than to die of any other cause;
5. Homicide and other violent crimes are the leading cause of death for women of reproductive age;
6. Husbands, ex-husbands or boyfriends are often the perpetrators of pregnancy-associated homicide or violence;
7. Moreover, when husbands, ex-husbands or boyfriends are involved, the violence is often directed at the unborn child and/or intended to end or jeopardize the pregnancy; and
8. Violence against a pregnant woman puts the life and bodily integrity of both the pregnant woman and the unborn child at risk.

Yeah, that’s all: true, horrifying; and in need of correction.

Then, let’s get to the idea that it defines an unborn child “as a person,” which has a very specific meaning under the law. This doesn’t qualify.

4. “Embryo” means a human embryo as defined in Section 1-728.1 of Title 63 of the Oklahoma Statutes;
5. “Pregnant” means the female reproductive condition of having an unborn child in the woman’s body;
6. “Unborn child” means the offspring of human beings from conception until birth;

See? Nothing in there about it being a person under the law and given civil rights.

And, just for good measure, to the question of whether a woman could kill a doctor performing a legal and supposedly consensual abortion on her.

7. “Unlawful force” means force which is employed without the consent of the pregnant woman and which constitutes an offense under the criminal laws of this state or an actionable tort.

So, no, a fundamentalist couldn’t fake-consent to an abortion to get away with killing an abortion provider.

Finally, here is what the law itself says:

A. A pregnant woman is justified in using force or deadly force against another to protect her unborn child if:
1. Under the circumstances as the pregnant woman reasonably believes them to be, she would be justified in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child; and
2. She reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.

Basically, the amended law would give a woman the right to defend her unborn child as she has to defend herself.

Furthermore, the right of self-defense doesn’t apply to the following circumstances:

1. Acts committed by anyone other than the pregnant woman;

Meaning a father can’t kill a doctor about to perform a consensual abortion either.

2. Acts where the pregnant woman would be obligated to retreat, to surrender the possession of a thing, or to comply with a demand before using force in self-defense. However, the pregnant woman is not obligated to retreat before using force or deadly force to protect her unborn child, unless she knows that she can thereby secure the complete safety of her unborn child; or

Basically, if you’re getting mugged, you don’t automatically have the right to kill the mugger just because you’re pregnant. Also, it’s a bad idea to try.

3. The defense of human embryos existing outside of a woman’s body.

You can’t rob a fertility clinic to get your frozen embryos back and claim self-defense.

All in all, it’s a pretty damn good law that codifies something pretty reasonable: if a dude is punching a woman in the stomach to try to get her to miscarry, she can use potentially deadly force even if she’s well aware that she won’t die. Not every law on pregnancy that religious people support is bad.

Bill Lets Moms-To-Be Kill To Save Baby [KOCO Oklahoma City]
Use of Force for the Protection of the Unborn Act [Oklahoma Legislative Information Service]

 
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