Fetal personhood and criminalizing abortion: a prosecutor’s perspective

As a former public defender: all of this. Every word.

And also: say there is some expedited hearing to determine if a pregnancy was caused by rape. Is the decision made at that hearing admissible at the actual trial to prove rape?

If it is, we’re basing a potential felony conviction on evidence that was probably gathered in a way that violated one or more of the accused’s Constitutional rights – and is thus wide-open for appeal. If it is not, we run the risk of a situation in which “what happened” is deemed “rape” for the purposes of abortion but “not-rape” for the purposes of conviction.

We already have a similar snafu in habeas corpus law – it’s called a “Schlup gateway,” and sometimes it means a convicted person can’t win a habeas case even after a court has decided no reasonable jury could have convicted that person. If this sounds incredible, it is, but it is the rule. Splitting the rape question into “was it rape for abortion?” and “was it rape for conviction?” creates a similar mess.

In the rape/abortion scenario, however, it gets worse. If the court decides that the victim can have an abortion because what happened counted as rape, but the accused is found not-guilty at trial, is the victim punished retroactively because the trial court decided it was “not rape after all”? Then how can any tape victim rely on the results of the hearing that allowed the abortion?

We often point out how legislators with no medical experience, no pregnancy experience (no, watching your wife go through it does not count), and no experience having been raped have no business legislating abortion. I also think they have no business legislating abortion unless they’ve had significant criminal trial experience – because look what happens when some lawmaker mistakenly thinks legal procedures to analyze exceptions to a criminal law imposed on a biological process are simple.

the moonlight reader

I apologize in advance, because this post has nothing to do with books, classics or otherwise.

But I’ve been watching a lot of Republican candidates for federal office saying a lot of stuff about pregnancy and rape, and pregnancies resulting from rape, over the last several weeks, and I am simply unable to keep my mouth shut any longer. Because as all of my friends know, I’ve been prosecuting rape, child abuse and homicide for over a decade and a half, and this is a subject that I happen to know quite a lot about. And I am deeply disturbed by the personhood movement, by the idea that there should be specified exceptions to a blanket criminalization of abortion, and by the fact that the group of mostly men propounding this policy seem to have absolutely no FREAKING idea what they are actually trying to do here. Since I think…

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About Dani Alexis

Dani Alexis is the Legal Coordinator at Autonomous Press as well as a freelance writer. When she's not working, she coaches winterguard and waits on the whims of two spoiled cats. Check out her most recent work by subscribing to her Patreon: http://www.patreon.com/noncompliantspace.
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