Response to Open Peer Commentaries on 'Provider Conscientious Refusal of Abortion, Obstetrical Emergencies, and Criminal Homicide Law'

摘要

Shepherd and Marshall suggest that I "may [have overstated] the likely applicability of homicide laws" to the refusal to provide an abortion in a life-threatening emergency, but their reasons for this conclusion are unpersuasive. First, while I agree that obtaining a criminal conviction in the kind of case I am discussing can be daunting due to the high standard of proof required, this by itself does not undermine, much less refute, my argument that homicide laws are applicable to the behavior in question. Second, Shepherd and Marshall misunderstand the law when they claim (without any supporting legal authority) that the prosecution would have to prove "that the abortion would actually have saved the woman's life." I cited LaFave, a recognized authority on criminal law, who points out that it is the high degree of risk to which the victim is knowingly and recklessly subjected by the defendant and the actual death of the victim that constitute the elements of depraved heart or reckless murder. To be sure, the prosecution would need to present expert medical testimony that an abortion was medically indicated as offering a substantial likelihood of benefit.