When is Self-Abortion Murder? Lessons of a Tragedy

Posted in: Reproductive Law

Last year, a Tennessee woman, Anna Yocca, was charged with attempted murder for trying to terminate her pregnancy with a coat hanger at 24 weeks. The alleged attempt failed, and Yocca came to the hospital bleeding profusely. After a C-section, a 1.5 pound baby boy was delivered alive. Recently, prosecutors have added new charges against Yocca, for aggravated assault, an attempt to procure a miscarriage, and an attempted criminal abortion. In this column, I will consider the meaning of the charges—of attempted murder, in particular—and how we ought to think about Yocca’s situation, both the fact that her alleged abortion took place so late in pregnancy (past the point of fetal viability) and the fact that she performed the alleged abortion on herself.

Attempted Murder

Although a murder charge for abortion might at first seem far-fetched, the fact that the fetus in question was successfully delivered alive as a newborn baby by C-section makes the claim that Yocca had tried to murder her son seem more plausible.

Attorney Lynn Paltrow, who has been helping in Yocca’s defense, suggested that Yocca may have been trying to deliver early at home and that “[i]t is absolutely not clear to us that her intention was to have an abortion.” This suggestion seems ludicrous on its face. No one would, absent a very good reason, attempt a solo delivery of her baby 16 weeks prior to term with a coat hanger. (Indeed, the “coat hanger abortion” is a cliché for an illegal termination without proper medical care). It seems plain, if the facts are as alleged, that Yocca was trying to terminate her pregnancy and, specifically, that she was trying to kill her fetus at the time. What makes it resemble attempted murder rather than simply an attempted illegal abortion is that a born-alive child resulted from the subsequent delivery. That is, had Yocca wanted to stop being pregnant without killing the fetus, she could in theory have done so, since the fetus was evidently viable.

This is the work that fetal viability does, as Michael Dorf and I discuss in our book, Beating Hearts: Abortion and Animal Rights. It creates the possibility of ending pregnancy’s internal occupation of a woman’s body without ending the life of the fetus. We argue that the right to abortion is fundamentally a right to end a pregnancy rather than to kill a fetus.

Nonetheless, because Yocca’s actions took place while the fetus was still inside her body, attempted murder strikes me as the wrong category. A murder ought to involve a perpetrator who is physically a separate being from the victim at the time the act alleged to be murder takes place. But illegal (or criminal) abortion, as tragic and sad as the situation appears to be (given Yocca’s resort to a coat hanger) does appear to be the right name for what she did. And unlike the case where a provider illegally terminates a woman’s pregnancy, here there is no provider to take the blame. As a pro-choice person, I am uncomfortable with the prosecution of a woman for an abortion. Yet Yocca was evidently trying to injure or kill the viable fetus who would emerge from her body.

The Role of Pro-Life Activists

However, Yocca’s successful prosecution would hardly be an unambiguous victory for the pro-life side of the abortion debate. Why did this woman seek to terminate her pregnancy so late along and why was she doing it in a dangerous and self-inflicted way? We cannot know for certain in this particular case, but in general much of the responsibility for late and self-inflicted abortions rests with pro-life activists who have pressed for laws that make it difficult to obtain even an early abortion and whose harassment of providers could help explain why only four out of 95 counties in Tennessee reportedly had abortion clinics at the time of the events in question. Yocca did not reside in one of the four.

Yocca could easily be someone who had wanted to terminate her pregnancy since long before it reached 24 weeks, at a point before the fetus was able to feel pain and have other subjective experiences. Many abortion opponents, however, have been less than fully supportive of access to early abortions or even of contraceptive availability, of the sort that might have prevented Yocca’s unwanted pregnancy, and thus her abortion, altogether. It is no accident, then, that some women with unwanted pregnancies find themselves still pregnant at 24 weeks along.

This case thus gives both pro-choice and pro-life sympathizers food for thought. Although our respective instincts might be to say “don’t prosecute the woman because she has the right to choose” or “go ahead and prosecute her for this murder-like abortion,” respectively, the story is much more complicated when we take a closer look. What Yocca did resembles a homicide a lot more than pro-choice advocates might like to acknowledge, and yet the act in all of its ugly detail may reflect poor choices by the pro-life advocates that led to Yocca’s predicament. There are no innocents in this story, other than the poor 1.5-pound baby delivered in its aftermath. Abortion law and policy can do better by women and by their late-term fetuses.

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