How do we work our way through the legal, philosophical and moral thicket created by the contradiction that abortion is legal in Indiana but “fetal homicide” is considered a crime?
There is one level of complexity in stories such as the one involving Katherin Shuffield of Indianapolis, who was five months pregnant and lost her twins when she was shot by armed robber Brian Kendrick. He was charged with robbery, attempted murder and two counts of killing a fetus, even though Shuffield was only 20 weeks along, right on the cusp of when Indiana makes it much harder to get abortion.
And there's a whole new layer in the story of Bei Bei Shuai. The Indiana Supreme Court last week declined to dismiss murder and feticide charges against her for taking rat poison while she was pregnant. Her baby died three days after it was born.
Her fetus was well beyond the point of viability – the baby would have lived if not for the rat poison. So charging her is completely consistent with Indiana's legislation making almost all abortions after 20 weeks impossible to get legally. A reverence for life – whether you agree with the state's definition of it or not – informs all legislation dealing with those not yet outside the womb.
But did Shuai have the requisite intent to kill her baby, as the prosecution claims? The defense argues that she was suffering from depression and that taking the rat poison was clearly a suicide attempt.
How you feel about that depends on what you think her fetus was, doesn't it?
If there was just a clump of tissue there, what happened to it was just collateral damage; what's important is to get the woman back to mental health. But if you think there was a life, the mother has to be held accountable for it. She would not escape punishment if she'd tried to shoot herself and the bullet went astray and hit her grandmother. If she wanted to kill herself, she should have waited until after she had the baby.
The defense does raise a potentially troubling slippery slope argument that deserves our thoughtful consideration. If we go down the road of holding a woman responsible for actions that could harm her fetus, where do we stop? Do we prosecute pregnant women who don't stop smoking or drinking wine?
In many trials, it is easy to choose one side or the other. There is a clear-cut villain we can hope is punished. But complex cases like this one remind us that there are frequently competing interests creating that complexity. Support your passion, but give the other side its say.