Wednesday, January 24, 2007

Woman charged with attempted abortion.

Not in Nicaragua.

In Massachusetts.

What a fantastic way to celebrate the anniversary of Roe v. Wade.

In an alleged era of choice, in my home state, a woman chose a dangerous, back-alley psuedo-medical abortion, instead of getting help from a doctor. Was she turned away for being too far along? Did she not know where to go, or how to find out? Why did she wait so long?

And what about the prosecutor? We're learning, in my crim law class, about how laws that exist with such a potential for abuse are often pushed through with legislative murmurings about prosecutorial discretion and wise juries...

And yet a woman is being prosecuted on the basis of a pre-civil war law, and is listed in a section of the MGL dealing with "Crimes against Chastity, Morality, Decency, and Good Order." This is also the section where you find that fornication may be punished by a fine of thirty dollars and three months in jail.

Here's the text of the law:

§ 19. Unlawful Attempt, etc., to Procure Miscarriage.

Whoever, with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her or, with the like intent, unlawfully uses any instrument or other means whatever, or, with like intent, aids or assists therein, shall, if she dies in consequence thereof, be punished by imprisonment in the state prison for not less than five nor more than twenty years; and, if she does not die in consequence thereof, by imprisonment in the state prison for not more than seven years and by a fine of not more than two thousand dollars.

ALM GL ch. 272, § 19

Prosecutorial discretion can eat me. This law wasn't even intended to be used against women when it was written, in 1845. All the annotations suggest that a woman cannot even be charged as an accessory to this crime.

This is a prosecutor abusing his/her discretion.

And I have two guesses why:
1. Perhaps the prosecutor was feeling especially zealous, and yet couldn't charge the woman with manslaughter or homicide, because at the time of the act (when Ms. Abreu ingested the misoprostol), the fetus was not a person. The fetus only legally became a person when Ms. Abreu gave birth to it.
2. Perhaps there may have been a way to charge Ms. Abreu with some crime against the infant who died, but the causal relationship between the misoprostol, the premature birth, and the death of the infant were insufficient. Perhaps Ms. Abreu's pregnancy was already at risk; perhaps the infant's death was caused by something unrelated to its prematurity.

I said it before, and I'll say it again: Prosecutorial discretion can eat me.

I am disgusted, and as a potential-someday-lawyer- fucking balls-ass-ashamed. I hope that it's my incompetence at legal research that makes me think that the state is using (abusing) this irrelevant statute to prosecute this woman...

And it's not. It can't be. Because I've got six months of law school under my belt, and that's certainly sufficient to find a statute.

I keep re-checking the article to make sure it's really happening in Massachusetts. It is.

I'm hoping that the article is wrong on the charges...I mean, there's already one error. (Misoprostol is often USED, not misused, to begin uterine contractions. It's the second phase of a legal, medical abortion)

1 comment:

Rob Anderson said...

This sort of prosecutorial misconduct will not end until it is illegal to hire and/or promote prosecutors on the basis of number of cases brought and/or won. Take the careerist incentive away and the problem will (most likely) go away.

By the way, I dig your blog.