(sourced from the prochoice subreddit in June of 2023)
Legal writing (especially a statute) is NOT like having a conversation. Words are not interchangeable!
There are thousands of appellate level cases interpreting language. We have rules for how you do that. It’s not arbitrary. Judges have to follow the rules, which are called “canons of construction.”
[Students new to law school have to learn when writing] that they can’t change words to give their writing variety like they might do in English class, because they will change their legal conclusions.
In other words, the selection of words and punctuation is very crucial to law and are specifically chosen so that they cannot be substituted out for another word which might change the intended meaning.
Key components:
- Imminence criteria provides for inevitability, with temporal variances that may or may not be immediate, but is impending nonetheless. While immediate simply refers directly to the next step in a sequence of events.
- Proportionality criteria provides for the differentiation between degree of force vs effect of that force
To begin, the elements of any legal defense or any crime or any tort are never arbitrary. They all exist for a reason. The elements stated above make sense when evaluating whether force used in self-defense against a born person is justified. There is a clear underlying rationale for each element... We know that the interaction between a fetus and a woman are different in significant, material factual ways from the interaction between two born people. Therefore, we cannot simply take a superficial look at the elements of self-defense designed to apply to situations between born people and determine whether these self-defense criteria can also apply to interactions between fetuses and women. We must consider the principles underlying these criteria so that we can properly apply them to the factually distinct situation between a woman and a fetus.
The use of lethal force is limited when it comes to born people in part because there are usually many ways to avoid a threat of harm or unwanted contact without having to resort to lethal force. If someone is poking me, I can walk away. I could push them. I could take their hand and stop the poking. If a child is hitting me, I can restrain them and put them in their room. If someone is exuding noxious gasses, I can walk away from them. Generally speaking, between born people, the only situations where there do not exist alternate ways to stop the threat/unwanted contact short of lethal force are those situations where you are at imminent risk of serious harm.
Imminence
Let’s focus on the imminence requirement, which is raised a lot by prolifers. You all argue that if there even is any harm from pregnancy, it’s not imminent. It’s in 9 months, or maybe never. Therefore, according to prolifers, pregnancy does not meet the criteria for self-defense. This analysis is superficial. The imminence requirement is there for a reason, but we need to consider what the reason is. Generally speaking, between two born people, if an attack is immediate and imminent there is no other way to avoid the harm than using some type of force in self-defense. You can’t go to the cops and say someone threatened you and get a temporary restraining order. You can’t walk away from them. You can’t have a conversation with them to deescalate. The exact same thing is true for pregnancy -- there is no way to avoid the harm other than removing the ZEF. This is the case even though the most severe harm (birth) is not immediate. (Although I would argue that any non-consensual use of the body that is presently happening is certainly immediate and imminent harm.) Imminence and immediate are not synonymous, even though imminent harm is often immediate. To sum up: the reason imminence is a requirement is that when something is imminent, there isn't another chance to avoid the threat except for the use of force. Pregnancy satisfies this element. Birth will happen. It’s unavoidable except for abortion. The unwanted contact is currently happening.
Proportionality
Now, let’s take the proportionality criteria. First, I note that use of lethal force in self-defense isn’t limited to situations where you have a reasonable fear of death. You can also use lethal force in self-defense from serious bodily harm. All pregnancies result in serious bodily harm. More importantly, in pregnancy, there is no way to stop the unwanted contact/threat that will not result in the death of the fetus. We know a non-viable fetus will die when removed.
Prolifers make the mistake of confusing the degree of force with the effect of that force. The basic principle of self-defense is that you have the right to stop a threat. This is a pretty basic concept: even if the threat doesn’t rise to the level of lethal harm or severe bodily harm, we understand that people have the right to protect themselves or remove themselves from unwanted bodily intrusions, such as rape, battery, medical battery. That’s why I ask prolifers to point out situations where we are not permitted to separate ourselves from forces that are physically harming us. A woman would be within her rights to simply separate herself from any born person who was harming her. Such separation very often does not require lethal force, and born people do not simply die from separation. Separation is a minimal amount of force. Unlike born people, however, fetuses die when separated from women. The fetus's need for her organs does not change the nature of the force (removal) applied; it only changes the outcome of the force applied.
If you claim that a woman cannot remove the fetus because it will die, then this is completely incompatible with her right to separate herself from something causing her harm. It obliterates her right to use even the most minor force to protect herself. [The prolife] argument means that the fetus's neediness totally negates a woman's rights to exercise self-defense in any capacity whatsoever, in any amount of force, which is a pretty serious conclusion [they've] done nothing to support. She can do nothing. She just has to sit there and take all the harm, because the fetus needs her body to live.
Proportionality is more complex than “is the harm you’re doing or trying to do to me worse than the harm I’ll do to you if I try to stop you.” The law asks us whether the force used is excessive, not just whether the effect of the force is better or worse than the harm sought to be avoided. Necessity is a crucial component of the analysis. What other options does the woman have? None. It’s wrong to use more force than you need to to stop a threat. That’s why we don’t kill kids who try to pull our hair. It’s unnecessary. We can avoid the harm with less force. It’s wrong to kill a born person when you can easily stop the harm with a smaller amount of force. This is not the case with pregnancy. You cannot stop the harm short of removing the fetus.
[Contribution by SuddenlyRavenous, a lawyer]
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