Using a Baseball Bat to End a Pregnancy: The Strange Michigan Case and the Questions It Raises

Recently, in Michigan, a sixteen-year-old boy was charged with beating his (also teenage) girlfriend in the abdomen with a baseball bat and thereby terminating her pregnancy.

The unnamed boy, whom I will call "Johnnie Doe," is charged under a Michigan statute passed in 1999. That statute defines as a felony the intentional commission of an act against a pregnant individual, "[i]f the conduct results in a miscarriage or stillbirth by that individual, or death to the embryo or fetus."

This felony is ordinarily punishable by up to 15 years imprisonment. However, because of Johnnie Doe's age and his lack of prior crimes, his alleged acts fall within the jurisdiction of the juvenile courts.

The pregnant individual in this case - whom I will call "Janie Roe" - allegedly asked her boyfriend Johnnie to help terminate her pregnancy by hitting her in the abdomen. Reportedly, Johnnie went along with the plan, the six-month-old fetus died, and the couple buried the body.

The statute in question appears only to permit the prosecution of the boyfriend, despite his girlfriend's potential status as an accomplice. The case and the underlying law raise significant questions about the relationship between the right to abortion, the freedom of pregnant women from being battered, and the status of third parties who assist women in consensually terminating their pregnancies.

Unusual Facts

One thing to note about the Doe case is that the fact pattern in question deviates sufficiently from the norm to resemble a law school examination hypothetical. Under ordinary circumstances, pregnant women do not ask to be battered. Furthermore, the statute under which the prosecution is pursuing Johnnie Doe does not appear to anticipate such a scenario. It aims instead at conduct that is independently illegal: assault and battery against a girl or woman who also happens to be pregnant.

A second feature of the Doe and Roe case, to the extent that it intersects with abortion law, is that the right announced in Roe v. Wade and the cases that followed does not appear to contemplate this sort of scenario either. The decision in Roe notably discusses the privacy of a woman in consultation with her doctor - not the privacy of a woman in consultation with her consensual assailant - to decide whether she will bear a child.

Which Differences Matter?

So what? Cases often arise under unusual circumstances. A law need not anticipate the precise contours of a fact pattern for that law to apply to those facts. The problem here, though, is that one must decide how to conceptualize the facts involving Doe and Roe before drawing any conclusions about what truly ought to happen.

Let us first examine this as an ordinary case of assault and battery which results in the death of an unborn child. It would make perfect sense for a prosecutor to pursue the boyfriend who attacked a pregnant woman with a baseball bat. He should not be attacking her and her developing baby - regardless of how she feels about her pregnancy -- and he should be punished for having done so.

But if her wishes regarding the pregnancy are irrelevant, and his actions are criminal, then she too should qualify as a criminal, for having solicited his conduct. After all, if her request for assistance in terminating her pregnancy does nothing to diminish her boyfriend's culpability, then it ought - by the same token - to solidify her own.

If the victim in question is the unborn child, then the boyfriend's responsibility toward that victim necessarily entails his girlfriend's as well. Yet the Michigan statute does not appear to permit prosecution of the woman, and the prosecutor has indicated no intention of otherwise pursuing her.

Let us assume now, instead, that this is more like the case of an induced abortion. If it is, then, the woman may be exercising a constitutional right and the prosecutor (as well as the law) appropriately avoids charging her with a crime. On this approach, however, the third party who facilitated the exercise of her constitutional right - the boyfriend who attacked her on request - should be similarly immune from criminal liability. Just like the entity that sells contraceptives to those who have a right to use them, the abortion provider is no more subject to liability than his client.

As of several weeks ago, the judge in the case was considering whether to classify this as a case of abortion. He asked for briefing on the question of whether the parental consent law in Michigan bears on Janie Roe's ability under the law to consent to Johnnie's performing an abortion.

Ironically, it might turn out that if a sixteen-year-old girl is, under the law, too young to consent to the acts in question, then - but only then - can a sixteen-year-old boy be held criminally responsible for carrying out that girl's instructions.

A Different Way of Looking at These Facts

There may be another way of looking at this case, one that does not force the principled decisionmaker to choose between condemning both members of the couple and condemning neither of them.

In laws on the books in days past, doctors and others who performed abortions would incur criminal liability, but the woman who sought the abortion would not. Stated differently, the person who requests and compensates the others for performing a criminal act would receive a free pass.

If one believes that abortion is murder, this approach is strange indeed. It resembles an exemption from the law of homicide for people who hire a hit man to kill their enemies. The only reason that the hit man is in business is that people are hiring him to commit murder. Indeed, the particular individual (rather than someone else) is killed only because the person hiring the hit man selected that specific target. It would therefore seem odd for the law to place the client beyond the reach of criminal penalties.

Yet an exemption for the pregnant woman in a law prohibiting abortion appears to do exactly that. It treats the person in charge of the killing as bearing no responsibility for it, while her subordinates sustain all of the blame. Why might the law do that?

One way to understand the exemption is to view the pregnant woman as not entirely in control of her own actions. If we conceive of her as less than a fully functioning adult, then it stands to reason that we would not want to punish her as severely (or at all) for acts that were really brought about by the more responsible adults around her.

Like the minor who falls in with a bad crowd, the woman who obtains an abortion - on this view - has fallen under the influence of the doctor and others who assist in terminating her pregnancy. In this scheme, a woman who obtains an abortion is a second victim of the provider's wrongdoing, along with her unborn baby.

If we transpose this view of the world to the Doe case, we can now make sense of it. Janie asked her boyfriend to hit her abdomen with a bat and thereby to terminate her pregnancy. As a pregnant woman, however, (regardless of her age), Janie did not have full emotional autonomy over her decisions and thus cannot be held responsible for her actions. By contrast, her boyfriend Johnnie, a male in possession of all of his faculties, can and will be held responsible under the Michigan statute taking aim at such attacks.

Though perhaps a more coherent approach than the others, this way of conceptualizing the pregnant woman for purposes of Michigan law is both offensive and at serious odds with the entire premise of the right to abortion. The assumption behind Roe v. Wade, Planned Parenthood v. Casey (the more recent case in which the U.S. Supreme Court declined to overrule Roe) and similar decisions is that pregnant women are the equals of men and must have legal control over their own bodily integrity. Particularly in Casey, the Court places gender equality at the center of arguments for reproductive rights - women have to be the ones to decide whether or not they will remain pregnant because they bear the costs of such a decision and are in the best position to weigh all of the considerations.

To assume, then, that women lack the basic capacity to make such a decision greatly undermines their entitlement to the right, particularly given a legal regime in which parents may decide whether or not to allow their minor daughters to terminate a pregnancy.

Should They Both be Prosecuted?

So what's the solution? Should the statute have been written to authorize a prosecutor to go after Johnnie and Janie? Should it have been written or applied to avoid prosecuting either of them? Or is Johnnie indeed more culpable than his girlfriend?

The answer depends in part on the scope of the right to abortion and of acceptable legal limitations on that right.

Restrictions on the Right to Abortion

In Roe v. Wade, the Supreme Court said that even though a woman has the right to an abortion, her right is not absolute. After the first trimester, even prior to viability, the Court held, the government interest in protecting a woman's health allowed for regulation of the right to terminate a pregnancy. Though the state may not prohibit a woman from obtaining an abortion, it can place out of bounds any method that is particularly dangerous to the woman. An attack on her with a bat would seem to qualify.

For similar reasons, even jurisdictions that protect the right to a physician's assistance in dying, closely regulate the practice. Nowhere can a person who wishes to die simply ask her friend or neighbor to gun her down with an automatic rifle or beat her to death with a tire iron.

As in the First Amendment context, time, place, and manner restrictions may accompany the right to die or to terminate a pregnancy. And the person whose choice is the subject of constitutional protection is no less bound by such restrictions than the various people whom she might recruit for assistance.

Nonetheless, the Michigan statute prohibiting attacks on pregnant women who kill their embryos or fetuses would most likely contemplate the termination of wanted pregnancies, rather than the provision of dangerous (but desired) abortions. Were the latter its objective, the statute would probably have discussed abortion more directly.

As I argued in an earlier column, such termination of a desired pregnancy should qualify as the destruction of a viable pregnancy, regardless of the gestational age of the fetus, because a wanted, developing baby - if left alone by outside assailants - has what he or she needs to survive.

On this theory, however, the events of the Michigan Doe and Roe case, though grotesque and sad, do not seem to implicate the proper concerns of a statute criminalizing attacks on pregnant women resulting in the death of their unborn babies. And perhaps for this reason as well, the Michigan prosecutor should have stayed his hand.