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Jewish World Review April 22, 2003 / 20 Nisan, 5763

Cal Thomas

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Consumer Reports

The Scott Peterson conundrum | The arrest of Scott Peterson by Modesto, Calif., police on charges that he murdered his wife, Laci, and their "unborn child" presents some interesting legal questions beyond his guilt or innocence.

Prosecutors say Peterson is being charged with double murder so they can seek the death penalty. The California Penal Code lists "special circumstances" murders, defining that to include the murder of more than one person by the same individual. The definition of "murder" is "the crime of unlawfully killing a person" (Webster's Ninth Collegiate Dictionary). Definitions will be important in this case.

No one would deny that Laci Peterson was a person under the law. But what about the unborn child/baby/fetus/product of conception she was carrying? In order to make the "special circumstances" part of the law stick and allow the state to seek the death penalty under its provision, that entity Laci Peterson was carrying would have to be deemed a "person" under the same legal definition that applies to her.

It is here that the dictionary and the law part company. The dictionary defines a "person" as "a human being; individual." But the Supreme Court has rewritten that to assign personhood (and thus the law's protection) only after the redefined baby is born and takes its first breath. There are some who wish to withhold personhood until the child can be given certain tests to make sure it "measures up" and has the potential for contributing to, not taking from, society. But that will come later, after the proper social conditioning has been achieved.

Laci Peterson was eight months pregnant when she disappeared last Christmas. Nearly all babies can survive outside the womb at that point in their development. The last few weeks before birth allow the baby to increase in size. Police say when she and the baby were found, the baby (already named Connor) was apart from his mother, though the umbilical cord was still attached to him. By some legal definitions, Connor should then be considered a person because he was outside the womb, or at least "viable." By others, he might have been required to take a breath before the law would protect him.

In reporting Scott Peterson's arrest last Saturday, the Associated Press found itself in a rhetorical conundrum. At first it used the generic word "bodies" to refer to Laci Peterson and the child. Then it referred to "infant son" and later "fetus" and "biological child" and, still later in the story, "the couple's baby."

From the statements of family members, Laci Peterson wanted her baby, but her desire did not confer personhood on the child, according to court rulings. A woman can legally kill her baby until the child's body has fully emerged from her body. But if Laci Peterson wanted her baby, can the law be on her side and impose the ultimate penalty on the one who illegally took that child's life? The answer to that question will make this trial compelling beyond whatever other facts emerge.

The Peterson case is going to be a tough one for the pro-choice lobby. They have a special interest in limiting the definition of "person " to those already born. Any jury is likely to be sympathetic to the dead woman and her dead baby and reject a political argument. The pro-choice lobby will jump into this case at its peril. More than two dozen states, including California, have adopted "fetal homicide " statutes. Prosecutors have often sought double homicide charges when an unborn baby is killed.

An indication of the predicament faced by pro-choicers came from the head of the National Organization for Women's Morris County, N.J., chapter, Mavra Star, who said, "If this is murder, well, then any time a late-term fetus is aborted, they should call it murder." Some do, but the law doesn't, though it once did.

If Scott Peterson is convicted of double murder and sentenced to die, that will mean a California court will have determined that the second victim in this case was, in fact, a person before the law.

See what I mean about this being an interesting case?

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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