"Murder is the unlawful killing of a human being with malice aforethought."
1. Unlawful (yup - he's not a doctor, it's not self-defense, he's not an executioner... he has no authorization to kill the fetus.)
2. Killing (yup - the fetus is dead and the expert testimony all shows that keeler is causation. )
3. Human Being (that's in question - whether or not a fetus is a human being is not answered by the statute.)
4. Voluntary (yup - he kneed her in the stomach cause he was pissed.)
why does the court say Pen. 187 is relevant to what the court thought in 1850?
b/c in 1850 when the code was created, this was the settled commonlaw meaning of murder created hundreds of years before. notable that the definition had not ever changed.
bright line analysis: birth was the only way to know that a baby was actually present and alive. before modern science, "quickening" was the only real line to know whether or not the mother was actually potentially with child.
majority refuses to engage in a policy argument, and says legis can change if they want to.
dissent says that with modern technology, it makes sense to change the rule b/c no point to doubt viability. medical technology allows us to draw the line at "viability" (dissent doesn't totally tease out, but kind of does)
why viability?
deterrence: we don't want people to think that they can kill fetuses just because they're not human beings, in ways that would be murder if they were babies/ people.
deserts: what keeler did is horrible and he should be punished for what he did to the viable fetus.
keeler can't really claim that what he did wasn't premeditated or for the intent of killing the fetus. however, there are fairness and policy issues that conflict in this case: keeler cites cooke and chavez that he could not have had notice that killing a non-human being would be murder. on the other hand, there is fairness issue that keeler certainly didn't do this without any awareness or intent to harm or injure the fetus.
fairness.
notice. awareness of the law is a fiction, but a necessity because the alternative allows any defendant to argue that they didn't know of the law (ignorance of the law is no defense).
redefinition... NYPL has defined abortion as a felony (before 24 weeks), felony (after 24 weeks), felony murder (at/ after birth).
"murder is intentionally causing the death of another person."
circulation and respiration, and brain function
ex post facto clause. prohibits retroactive lawmaking by legis
due process clause. prohibits retroactive lawmaking by judges
why different results in keeler in eulo? maybe euth. is less controversial than abortion? but overall, shouldn't we leave populate legislation to legis branch, because otherwise have fairness and arbitration issues if judicial branch handles
"any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court." GS 14-202
does banks have a democratic legitimacy argument? only indirectly (can't say that judges can't define, because there's a statute) because the statute is argued to be overbroad.
vague statutes: can't define your conduct to know how to appropriately be within statutory limits
overbroad statutes: limitless liability, you have no class of people to whom the statute applies, you can end up punishing innocent/ const protected conduct
overbroad statutes give great discretion to the police. problem? discriminatory issues.
to the extent that the courts "fix" statutes, they essentially let legis off the hook. in keeler, the court said "we're not fixing the statute" and the legis fixed immediately. but when courts reinterpret, they save the legis from making important policy choices. in keeler, the result is even more extensive culpability: if you kill a fetus, it's murder and if you kill a preggers, it's double homicide.
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