Thursday, October 19, 2006

Self Administered Abortion

Judge Dismisses Charges Against Woman Who Killed Her Unborn Child: Pregnant Mother Shot Herself in the Stomach, Killing Her Child, Va. Judge Rules Causing Your Own Abortion Is Not a Crime (ABC News).

Tammy Skinner was a poor, desperate 22-year-old with two young children and another one on the way. She said her boyfriend wouldn't pay for an abortion, so she carried her pregnancy to term. Then she did the unthinkable.

Prosecutors say that on the morning she was scheduled to give birth, Skinner drove to an auto dealer's parking lot, took a gun, and shot herself in the belly, killing the fetus in an act of self-abortion. Skinner was charged with carrying out an illegal abortion.
Apparently, there is precedence for such a ruling:
Martingayle cites a 1997 Florida case in which a teenage mother shot her womb, effectively giving herself an abortion. The woman in that case, State vs. Ashley, was acquitted, as was the mother in a similar 1998 case in Georgia.
Ann Scheidler, executive director of the Pro-Life Action League in Chicago makes a good point:
If the right to kill the child resides totally in that child's mother -- which it does -- why would it be illegal for her to do this with a gun as opposed to with a suction vacuum machine in a doctor's office
There does seem to be a logical conflict... or does this case evince that rare exception wherein a medical professional could rule that Skinner's mental health would be so gravely damaged by birthing another child that a third trimester pregnancy could be legally aborted?

I'm not sure what to derive from this case -- either early abortion or birthing to adoption would have been far preferable. Can pro-lifers and pro-choicers at least agree that her actions should be illegal? If so, what should be the punishment? If it shouldn't be illegal, does this encourage self-abortion?

I would not doubt that some kind of insanity was involved, though doesn't it seem that most heinous, irrational crimes require some modicum of insanity?

Skinner also said, "I got somebody to load the gun, because I didn't know how." It strikes me as strange that she couldn't load her own gun. And I wonder if that "somebody" could be liable?



steviepinhead said...

Ugh! What a sad story.

These sound like very rare acts of extreme desperation, perhaps with some degree of mental instability involved.

I see little point in attempting to "criminalize" the behavior of shooting yourself in the womb: no deterrence of any relatively normal person in a normal situation, who would have access to an earlier legal abortion. And probably no deterrence of anybody desperate/crazy enough to turn a gun on themselves.

I was struck by this sentence: "She said her boyfriend wouldn't pay for an abortion, so she carried her pregnancy to term." Is this a situation where federal-state bans on economic assistance for abortion-related medical services have led to worse, rather than "better" (fewer abortions, fewer late-stage abortions).

Who knows what story was given to the person who assisted in loading the weapon--target practice, personal security? I don't know if we know enough to meaningfully comment on a theory of liability for such a person.

The boy"friend" doesn't exactly sound like a prize human being, however laudable his anti-abortion sentiments--if that's what we're willing to presume as a motivation--may have otherwise been.

My strong personal preference leanings are for de-emphasizing criminalization and for strengthening societal, cultural, religious, counseling, health, educational, etc., support services and structures in an effort to maximize respect for life and minimize the "need"--whether that arises from ignorance, convenience, desperation, carelessness--for abortions. I recognize that I haven't articulated that philosophy in detail either here or on Mark's alternate blog, but that's the "bias" from which I think about these things.

Kevin said...


Thanks for sharing your thoughts. It certainly is a sad and heart wrenching case.

If Skinner birthed her child and then shot it, it would be murder. In this case, she shot her child on her due date, motivated by her own contractions. She shot through herself in order to kill her child.

Wouldn't the same reasoning you use to exculpate Skinner (or at least maintain that her actions should be legal) apply in the similar case of postpartum murder? Why should the location of the child be the determining factor?

It does appear that Skinner blames her predicament on her inability to afford an earlier abortion, coupled with mental abuse by her boyfriend. Then again, initially, she lied and blamed someone named Travis for shooting her, which suggests some rational attempt to avoid punishment.

But presently, she does seem to be suggesting that the primary societal solution is free early abortion. Of course, even with free abortion there still may be these rare cases where women wait until their third trimester to abort their baby, neglecting to choose any of the previous paths that avoid birth. The question is, is birth the best dividing line for limiting "choice"?

I agree that we don't know enough to judge the person who loaded her weapon. It just seemed like a very strange statement that evoked a bunch of questions in my mind.

I did not consider that the boyfriend may have been taking an anti-abortion stance. Skinner's brief description of her boyfriend's abuse led me to think otherwise:
"Jermaine would always tell me that no one would want me because I had three kids," she wrote. "He would always call me b-- all the time. He would just mentally abuse me by telling me negative stuff all the time. I just got stressed out and didn't know what to do."

Your "leanings" seem reasonable to me inasmuch as the argument is valid that criminalization and restriction of abortion does not actually reduce the number of abortions. Indeed, it seems that pro-lifers should support free abortion if it actually prevents abortions.

But if, on the other hand, legal restrictions do influence culture and reduce the number of abortions, do you think they should be employed? If not, what is your guiding principle in choosing your purely social/cultural solution to this issue, while maintaining birth as the limit of choice?

I think it would be ideal if we could reshape culture to minimize abortions -- and, more generally, if all law were unnecessary due to personal morality. Unfortunately, there is a strongly opposing cultural movement that belittles the value of fetal life, which seems to be closely tied to the pro-choice movement, as I recently observed through a conservative video "Vent" based upon a post by La Shawn Barber.


steviepinhead said...

Thanks, Kevin, for your candid thoughts, which certainly expose my uncertainties and vulnerabilities.

Wherever the law (or society, mores, ethics, custom, etc.) draws a line between different situations, resulting in different outcomes, one may always identify or contrast situations that seem highly-similar in most respects except, of course, for falling on different sides of the line and having at-times harshly divergent outcomes.

The extremes make "easier" cases--most Americans are comfortable with some sort of birth control impacting only sperm or unfertilized eggs, but are less comfortable with impacts on fertilized eggs, still less comfortable with impacts on developing embryos and fetuses (but still willing to accord some degree of control--more exclusive to less so as the new life matures--to the "host"), and even less comfortable with impacts to "viable" fetuses, near-term babies, etc.

Thus, we have "bright lines" (of varying degrees of blurriness, and varying degrees of moral import, depending on your overall value set) that slash across the questions of natural or artificial birth control, conception/fertilization, independent viability or non-viability, more or less "intrusive"/"graphic" methods of terminating pregnancy, and pregnancy/birth.

Some would cast a wider net still and talk in terms of older, empowered males "controlling" the lifestyle/sexual ooptions of younger/relatively-powerless females.

Or would look to the post-birth outcomes for the mother whose "choice" whether to bear has been interfered with or for the child who is (or is not) thus brought into an increasingly resource-limited world, already groaning beneath the "footprint" of its ever-increasing human burden and riven by wars between competing sects and factions, and will look to the opportunities afforded or denied to that mother and child.

One can always identify two situations that lie closely astraddle one of these lines and find a great deal of difficulty distinquishing them--and the resulting societally-prescribed or proscribed outcomes.

Why take such a vigorous, hands-on, societal-"control" approach to the young mother's sexual and reproductive choices, some might say, only to then adopt a laissez-faire, "personal responsibility," hands-off approach that effectively "abandons" the mother and child to a life of (potential) poverty, ignorance, and abuse? The fate of the fetus is "ours," until it's born, and then--within limits, of course--it's suddenly the mother's responsibility again...

I'm not going to attempt to defend every awkwardly-incised line, nor to repeat all the entrenched positions, except to suggest that we--all of us, as a society--have thus far chosen to approach this whole intertwined set of issues in a combative, all-or-nothing, moralistic, legalistic, and absolutist manner. A manner which guarantees that we generate a multitude of bright lines in the sand that one "side" or another insists cannot be crossed.

Given that, at the extremes, and over large stretches of the middle ground, Americans find themselves largely in agreement, it's a shame (it seems to me) that we find ourselves locked into this zero-sum, line-drawing, divisive confrontation.

I'd rather take at least some of the sting out of the confrontation: concentrate on the results we all--presumably--hope to achieve: lower rates of teen pregnancy, lower rates of sexually-transmitted disease, less governmental intrusion into genuinely-private affairs, fewer abortions, more societal and governmental support of smarter and more-informed teens and young people making healthier choices, more societal and governmental support for pre-natal and post-natal care, fewer unwanted babies, more healthy mothers, children, and families, better healthcare, better education, more productive citizens, fewer people demonized and marginalized (and lost to their families and to productive society) as criminals, fewer people having to make choices as desperate--and carrying such a high personal, moral, and societal cost--as this young mother never-to-be...

Have all the answers do I, grasshopper?

Certainly not. But I do know that the old deadlocked positions and the old entrenched "answers" don't seem to be leading to a way forward that most sensible people can embrace. Leaving us mired--as we have been now for decades--in an increasingly-politicized, distracting, and divisive one-issue conundrum while a host of other critical issues--on which, again, most Americans might largely agree--go inadequately addressed.


I don't want to avoid the hard questions or hard cases, but I'd love to find another model for resolving them.

Kevin said...


I broadly agree with you, though I feel a bit lost in some of the generalities of your response. I agree that we should focus upon our commonalities. In fact, that was my intent in asking if we all can agree that Skinner's actions should be illegal.

IIRC, 80+% believe there should be a ban on third trimester abortions, so I thought that most would agree on the Skinner case. But despite such ostensive concurrencies, it seems that our unity frequently falls apart as we derive specific solutions to achieve those results we all want.

The line between personal freedom and moral responsibility for creating a human life can be complex and tense to say the least, but I don't think that maintaining vague or conflicting values is very helpful to society or individuals.

Care centers which guide according to our shared values, hospice care for mothers-to-be who cannot care for themselves, and adoption for mothers who choose not to care for their children, etc., seems like helpful, if imperfect solutions. And I'm interested in learning about whatever new model that you sense may exist for better resolving these issues.

Thanks for having discussed this with me. :)


steviepinhead said...

Well, I'm a little frustrated at some of my generalities, too, Kevin--and have been for a while, as those who've followed related topics on Mark's personal blog know well--but I'm also frustrated with the more absolute--"clear"? "definite"?--positions that this debate is hung up on.

Whence my quandary.

I'll try to find time to review the legal cases in this specific area to see if that helps clarify my thinking as to this fact situation. (I've also been meaning to do the same with regard to the Foreign Combatant Law, or whatever it's called, to see if I can separate the hype from the actual text, but haven't gotten to that either; perhaps more sensibly, I've been content to keep my trap shut on that one until I actually know something beyond the level of vague generalities!)

Kevin said...


Now it's my turn to give you some heartfelt thanks for your candid response. I also try not to speak beyond my knowledge, so I admire your efforts and appreciate your participation, even with lyrical generalities, in spite of that constraint.

I had an opinion on... well, just about nothing until Mark started his blog and I was forced (FORCED, I TELL YOU!) to consider and analyze each topic and form some kind of opinion. It's ridiculous since I was quite content having no opinions. :) But it gave us something to discuss, which made me happy.

I greatly appreciate that you are coming at this from a slightly different perspective than I, and I'm looking forward to reaping some of the benefits of your future research, which, I know, is laborious. Thanks.


steviepinhead said...

Thanks, Kevin. I don't have much trouble formulating strong opinions, but I'm perhaps a bit chary of communicating them, especially among informed people whose opinions I respect, much less "implementing" them--or attempting to do so--until I've had a chance to back up my gut reaction with satisfactory evidence, not only as to support for the opinion itself, but as to the consequences of broadcasting or implementing it.

Well, much of the above is situation-dependent: drinking beer with friends versus trying to figure out how to vote versus actually being in a leadership or policy-formulating position (as I am with certain of the charitable/environmental groups I volunteer for).

As I've gotten older, I find that the investment in and "productivity" of long-term relationships more and more outweigh my initial impulse to just shoot my mouth off, even where I feel quite strongly. I'd rather work toward accomodation of views, postponing (at times inevitable) conflicts for those times when they are truly unavoidable.

I'm often uncomfortable and uncertain whether this is effective diplomacy, some sort of increasing aversion to confrontationalism, or devious machiavellian strategizing on my part.

Be that as it may, I have now had a chance to run down and review the Florida court's opinion in the case of State v. Ashley, 701 So.2d 338 (Fla. 1997), as well as some of the follow-on cases which cite back to it. My access was via a paid service, but perhaps some of you will be able to google on the cite and find it posted in a more-accessible manner.

I don't have time today to go into a more detailed analysis, but will try to do so before too long.

Kevin said...


Words of wisdom, you speak. I'm interested in your volunteer work; maybe you could post a thread on that?

Regarding your postponing conflicts, I'm hoping it's "effective diplomacy", but I'll keep an eye out for "devious machiavellian strategizing", thanks! That one cracked me up. :)

It looks like Florida State University has been kind enough to provide the Florida Supreme Court Briefs and Opinions online:

State of Florida, Petitioner, vs. Kawana M. Ashley, Respondent. 701 So. 2d 338; October 30, 1997.


steviepinhead said...

Thanks for finding and posting the link, Kevin (say I, deviously...)!

The short version of the legal analysis seems to be that the courts--fairly generally, it appears--apply a common-law immunity to the situation of a pregnant woman doing something "damaging" to herself that allegedly results in harm or death to her unborn child.

In order to pass a statute that changes a clear common-law result (a result which would be in "derogation" of the common law), a legislature needs to clearly manifest that intent: pretty well come right out and say that, where the common law would lead to Result A, we, the legislature, now intend to achieve Result B. This again, is pretty standard law, the kind of thing legislators are held to be aware of as they go about their work of legislating.

In the Florida case--and, I gather from the reporting, at the trial court level in the more recent Virginia case--the argument is that, even where a legislature has made it a generally-applicable crime to harm an unborn child--as the Va. legislature arguably did by applying the statute to "any" person--that's still not enough to destroy the common-law immunity for a specific category of persons, pregnant women.

In looking at the results of later court cases that cite back to the Florida result, courts in other states have typically agreed, although usually in variant fact settings (such as the ones we've all heard of, where the prosecution is trying to charge a booze or crack-addicted mom with criminally injuring her unborn child via Fetal Alcohol Syndrome, and the like).

One rationale for the common law rule, and the results in the modern court cases, seems to be a "where would we draw a sensible line?" approach: shooting yourself in the womb would seem like a pretty straightforward--if exceptionally desperate--case of intent to harm the unborn child. But what about the drug and alcohol cases? What about inadequate nutrition? Inadequate prenatal care? Failure to take folic acid?

Whatever one makes of the discomfiture of the courts in this regard, it's pretty clear that legislatures could get around this whole "problem" by (a) specifying with reasonable precision the kinds of conduct that will or will not be deemed the equivalent of "abortion" or "homicide" (or whatever degree of criminalization is intended) and (b) specifically setting forth the legislative intent to overturn--to that same extent--the immunity granted by the common law to pregnant women.

That, going on ten years later (since the Florida result), the legislatures of most of the states seem not to have followed this fairly clear direction from the courts may indicate that the legislators themselves want the "credit" of appearing to have enacted tough criminal laws--but are also counting on the courts to avoid applying those same laws in "harsh" situations of this kind.

(Sometimes those legislators can be pretty devious, too!)

There seem to have been only two or three instances of this kind of tragic "maternal" behavior over the entire country over the last decade or so. In other words, one purpose of the criminal law--far from the only one, but one--that I doubt would be served by criminalizing these situations is any sort of realistic deterrence.

I agree with most of you, I presume, that--despite the tragic settings of these cases--there is no meaningful "real" world (as opposed to "legal") distinction between the mother's taking the life of her baby immediately before versus immediately after birth.

(Well, perhaps these desperate mothers manage, to some degree, to paychologically "depersonalize" a child-who-is-yet-unborn in a manner that would be much more difficult for them were they forced to threaten a baby swaddled in a cradle, but that's not a distinction that any of the rest of us would attempt to rely upon here...)

If "we" agree that in cases of this kind there ought to be a crime and a punuishment, what are we talking about, specifically? I doubt many juries would be willing to impose the death penalty in these pitiable situations--and maybe nobody is suggesting "aggravated capital murder" treatment.

A fine? A prison term? How long? Probation with some form of "pyschological" counseling?

And, in this next point, I'm not suggesting we should concern ourselves about the "mother" but, as a practical matter, who is going to look after the other young children these young mothers inevitably seem to have? The "boyfriend" or "grandmother" who is already overwhelmed?

Foster care (despite many wonderful foster parents and success stories, these systems seem to be an under-regulated, underfunded overall disgrace in most states)? Some other government institution? Forced deprivation of maternal rights and adoption?

I'm not suggesting that these older children would be better off if their "mother" was left out of prison to care for them--these don't sound like the warmest and most nourishing of family environments to begin with--but I do think that--before our legislators lift pen to ink yet another criminal statute--they do need to think through the wider real-world consequences of what they are attempting to accomplish.

Kevin said...


Thanks for your analysis. It adds some clarity to what I've been reading.

There seems to be two broad issues at play here. One is that our laws (including common law) are morally contradictory. The other, which you raise, is that our legislators do not seem to have an interest in effectively rectifying that.

I'm curious about the origin of the common law that holds mothers guiltless -- it is hard for me to imagine that those who set that precedent would apply it to this case and not the case of postpartum murder, when they may be seconds apart.

As you point out, it is a slippery slope to hold pregnant mothers liable for negligence for their prenatal choices, given the innate physical bond between mother and child, and the ridiculously wide range of negligence. Instead, I would draw the line at specific intent to kill the fetus.

I think your concerns and questions regarding appropriate punishment (and whether it would be a deterrence) apply equally well to the case of a mother murdering her newly birthed child, which is to say that the punishments should be similar.

I'm open to experimenting with our penal system to see what works best. Assuming her children are not at risk, the money that would be spent to imprison the mother and care for her children might be used more effectively toward more rehabilitative solutions. Continuing community service to pass on the help? Firmer discipline and indoctrination? Semi-independent colonies?

I'd look to incompetence or lack of motivation rather than deviousness to explain cases where our legislators are enacting impotent law, but I'm open to correction. Regardless, I agree that the nature and rules of our legislature beg for scrutiny.

There does seem to be some correlation between the moral schism in our society and the schism in law. To some degree, I think we've agreed that the ideal may be a pro-choice society made up of personally pro-life individuals, but unfortunately the values required for each aspect seem inherently at odds.

I have no statistical support, but while there are only a few cases where women use a gun for DIY abortion, I suspect there is a much greater number of cases of intentional abortion in the third trimester. I vaguely recall some cases where an accomplice was found guilty, while the mother was not.

Regarding "depersonalization" of the fetus, the video "Vent" that I linked previously mentions giving sonograms to connect a mother to her fetus, which might be an effective deterrent.


steviepinhead said...

Most of our commentators here--myself possibly excepted--are quite capable of expressing their views and arguing their positions with eloquence.

But Kevin occasionally astonishes me with his ability to compress the full range of a difficult issue into one pithy sentence. The one that leaped out at me--from a comment I found thoughtful throughout--was:

"To some degree, I think we've agreed that the ideal may be a pro-choice society made up of personally pro-life individuals, but unfortunately the values required for each aspect seem inherently at odds."

In my more optimistic moods, I would like to be able to disagree with Kevin's final clause about inherently antagonistic values but I'm not sure the evidence supports my wishful thinking. Currently.

But the vision of a society that reluctantly accomodates choice while strongly supporting and encouraging life is an inspiring one.

Thanks, Kevin (and there are more of those sentences lurking out there in Kevin's prior comments--I'll have to go back and focus on a couple more!)

Kevin said...

*/me blushes while looking down and kicking at the ground* Gosh that was sure nice of ya. :)

And I can only assume some Machiavellian self-deprecation is at work :), since you are clearly not excepted from eloquence, which I recall praising many times. Need I remind you that the tag line to this blog is derived from one of your comments?


steviepinhead said...

Yep, "derived" is right, because my original line needed some severe editing...!

As I was driving from one thing to another today (I wish I could say "biking," but man was it pouring rain in Seattle today) I nibbled at the edges of vizualizing a project which is probably well beyond my self-inflicted laziness limit: to try to track down all the laws relating to the topics of abortion, choice, funding, consents, definitions, etc., that apply just in my one little state--with its not untypical mix of "blue" urban counties and "red" rural counties--and see if I could develop some sort of overview or synthesis of them...

(Here's just one which I happen to know about from my law practice: a parent* has a right to bring a civil claim for personal injuries--a tort suit--for negligence that harms or kills a "viable" unborn child, but has no such right in the case of harm to a "non-viable" child. *Or the child his or herself, should they survive the injury and reach adulthood.)

And--as if that weren't already a project that far exceeded my energies--to go further and try to develop a "critique" of those laws: using Kevin's Overarching Principle as the touchstone against which the various elements would be measured.

Further still: propose appropriate revisions, extensions, etc., together with appropriate funding mechanisms where those might be necessary (yikes!)--for prenatal care, adoption, counseling, support of stressed families, education, research...

See how tough this "holistic" approach quickly gets to be?

Maybe that's why it's easier for people to fling bumper-stickerable/placardable slogans at each other.

I wonder if there's an NGO or think-tank somewhere that's already done some of this work? After all, it's "easy"--as maybe I've strayed into doing here--for the "pro-choice" "liberal" forces to criticize the "pro-life" "conservative" forces for the asserted failure to provide the support and educational structures that "ought" to go hand-in-hand with a broad effort to reduce (rather than prohibit) abortion. But have the pro-choicers themselves actually come forward with such a "comprehensive" program? As opposed to sniping at the alleged overemphasis of the pro-lifers on punitive and prohibitive measures?

(Even if it any such "comprehensive" program might not greatly resemble the program that I might come up with--if I really knew what I was doing and went to all that effort--or the one that those of us here might come up with jointly if, etc.)

I don't really know the answer.

Kevin said...


You are eloquent! Stop contradicting me! :)

I surpassed my laziness limit merely by reading your hypothetical plans for exhaustive gathering of abortion related information in your state and developing detailed proposals for improvement.

The tort law you mention sounds consistent with viability being the moral line for human life. Maybe the common law protecting mothers until birth is just an aberration?

I took a quick look for abortion think tanks, but haven't found any of the exhaustive analysis you describe. What I have noticed though, is that even if there are such organizations, they are likely categorized as having a pro-life or pro-choice bias. Of course, facts should be facts, but it seems the more extreme the views, the more motivated to study the issue.

"But have the pro-choicers themselves actually come forward with such a "comprehensive" program?" I think that is a key question. i.e. To what extent are we interested in minimizing abortions, and what sacrifices are we willing to make to achieve that?

Every idea, every option intended to reduce abortion, often has two sides. One side is taken by pro-lifers, the other by pro-choicers. Alas, this polarization leads to the perception that pro-choicers ostensibly have little to no interest in reducing abortions.

I don't have any kind of comprehensive answer either, and without proper and exhaustive empirical scientific analysis, I suppose we are rather constrained to thought experiments based upon our general (sometimes divergent) sense of reality, but even if we can only come to some agreement that includes conditionals upon unknown empiricals, I think we will have made progress.