Wednesday, November 30, the Supreme Court of Hawaii overturned the manslaughter conviction of Tayshea Aiwohi. The 32-year-old woman had been previously found guilty for causing the death of her newborn son by smoking crystal methamphetamine three days before his birth and on the morning he was delivered.
The State's High Court unanimously ruled that Aiwohi's son was an unborn fetus at the time she abused crystal meth, and therefore not a person. WorldNetDaily rightly characterized the decision in this fashion, saying that in Hawaii unborn children are "'not human beings,' and therefore women cannot be prosecuted for causing the death of babies by harmful behavior during their pregnancies."
According to the Honolulu Star Bulletin, Hawaii's penal code states that a person is defined as "'a human being who has been born and is alive.' Most states allow for the prosecution of a person for violence against a pregnant woman resulting in the death of her child after birth. Thirty-four states have 'fetal homicide' laws allowing prosecution of a person for causing the death of a fetus. Most infamously, Scott Peterson faces the death penalty in California for his conviction of two counts of murder for the deaths of his wife, Laci, and their unborn child."
But in Hawaii there is no such law. And so open-ended is the matter in Hawaii, Justice Paula Nakayama wrote "that 'the logical implication' from the Aiwohi ruling is that a person who attacks a pregnant woman, causing the child's death after birth, 'also cannot be prosecuted [for the child's death] under the manslaughter statute, inasmuch as the Legislature has not included fetuses within the definition of the term 'person.'"
However, under the new federal Unborn Victims of Violence Act -- also known as "Laci and Conner's Law," enacted by Congress in the wake of the murder of Laci Peterson and her unborn son, Conner, by Laci's husband, Scott Peterson -- any person who perpetrates violence against a pregnant woman and causes the death of her fetus can be prosecuted. Still, mothers are protected from their own injurious actions to their unborn child, while others are not.
Hawaii's Supreme Court ruling in the Aiwohi case and the State's penal code clearly define personhood on the basis of functionalism. In other words, what one does defines one's status as a person; persons are defined by certain functions and behaviors. The Holy Scriptures, however, define one's personhood not by what one does but by what one is -- a human soul made in the image of God. One needn't be "born and is alive" to achieve such a status, only conceived.
Peter Kreeft with the American Life League rightly contends that functionalism has largely arisen with the erosion of the family. He writes: "Our civilization is dying primarily because the family is dying. Half of our families commit suicide, for divorce is the family committing suicide qua family. But the family is the place where you learn that you are loved not because of what you do, your function, but because of who you are." Kreeft, therefore, further notes that consequently the new "Quality of Life Ethic" is replacing the old "Sanctity of Life Ethic." "In this new ethic," he writes, "a human life is judged as valuable and worth living if and only if the judgers decide that it performs at a certain level."
This new approach is a matter of extreme danger in that it leads to a frightening form of despotism. For who decides the social utility of one's existence? As Kreeft argues: "When it is in the self-interest of certain people to kill certain other people, whether fetuses, or the dying, or enemies of the state, or Jews, or Armenians, or Cambodians, or heretics, or prophets, the killers will simply define their victims as non-persons by pointing out that they do not meet certain criteria. Who determines the criteria? Those in power, of course."
Moreover, the Aiwohi case and current federal law which protects a woman's so-called "right" to choose, as well protects her from her own detrimental actions against her fetus, is remarkably reminiscent of the attitudes reflected at the time of the notable Dredd Scott case (1856-57).
In the Dred Scott decision, the United States Supreme Court ruled that Negro slaves nor their descendants could have rights or be considered citizens. The Court at that time essentially said people of African ancestry were not people, but simply the property of the slave owner. Abolitionists fought for the human rights of slaves when the prevailing notion was that a black man didn't even have a soul. Blacks were neither considered human beings or persons, only chattel.
Cecil Hook of Freedom's Ring, in an insightful article titled "Human Chattel," argues: "Who would have thought that, more than a century after the Emancipation Proclamation and the Civil War, we would hear the infamous Dred Scott case revived so loudly and adamantly? Once it was the slave and his child who had no rights or soul; now it is the unborn child who has neither rights nor soul. In those times a master could deal with his slave as chattel; now the unborn is regarded as disposable property possessed by the mother -- a part of her body which she can destroy without conscience."
Interestingly, when Abraham Lincoln spoke out against the Dredd Scott decision, he cited the Declaration of Independence's proclamation that all men are "created equal" with certain "unalienable rights," among which are "life, liberty, and the pursuit of happiness." Lincoln then went on to say that the Founding Fathers "did not mean to assert the obvious untruth, that all then were actually enjoying that equality, nor yet, that they were about to confer it immediately upon them .... They meant simply to declare the right, so that enforcement of it might follow as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all ...."
Indeed! And may God hasten the day when the unalienable (God-given) right to life is restored for the unborn "person."
[Editor's Note: This article was originally published on December 5, 2005.]
Rev. Mark H. Creech (firstname.lastname@example.org) is the executive director of the Christian Action League of North Carolina, Inc.