united-states criminal-law united-kingdom murder abortion
Pregnant spouse slipped abortion pills unknowingly. What would the legal ramifications be?
<p>Suppose a partner to a pregnant woman gave her an abortion pill which successfully aborted the pregnancy. Suppose that this was done in a non-violent way, unbeknownst to the woman.</p>

<p>One could argue this is murder, however, if the woman took the abortion pill herself, in most parts of the USA and Europe, it would be perfectly legal and not considered murder. </p>

<p>I'm broadly interested to know what charges could be brought against the partner? In particular, I'm interested in <strong>why, in a locality where abortion is legal and not legally considered murder, could be compelled or forced abortion by a third party be considered murder?</strong></p>

<p>I'm interested in the context of the USA and Europe in particular. </p>

<p>This stems from <a href="https://www.dailymail.co.uk/news/article-7786875/Man-forced-pregnant-girlfriend-numerous-pills-gunpoint-miscarry.html" rel="noreferrer">this article</a>, whereby a man held his partner at gunpoint and forced her to ingest an abortion pill. He was charged with murder, despite abortion being legal at the time.</p>

<p>Although abortion is legal in the US, not everyone is allowed to perform an abortion.
In Washington, <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=9.02.110" rel="noreferrer">the law</a> allows a physician to terminate a pregnancy, and recognizes a woman's right to choose to have an abortion. An <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=9.02.120" rel="noreferrer">abortion performed by anyone else</a> is not legal, and performing an illegal abortion is a class C felony. There are "plan B" pills which are <a href="https://www.govinfo.gov/content/pkg/FR-1997-02-25/pdf/97-4663.pdf" rel="noreferrer">legal in the US</a> and levonorgestrel is available without a prescription, but the 
mifepristone and misoprostol regime is not available without a doctor's orders. In this scenario, the partner will have performed an illegal abortion, and is guilty of a controlled substances crime. In some states, there is a separate crime of <a href="http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx" rel="noreferrer">fetal homicide</a>. In Washington, this is covered under <a href="https://apps.leg.wa.gov/RCW/default.aspx?cite=9A.32.060" rel="noreferrer">1st degree manslaughter</a>, a class A felony, if one "intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child". "Any injury" does not require "great violence" or "striking".
It is also the class B felony of <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=69.40.030" rel="noreferrer">poisoning</a> which includes slipping in a harmful substance with intent to harm another person, as well as <a href="https://apps.leg.wa.gov/rcw/default.aspx?cite=9A.36&amp;full=true" rel="noreferrer">assault</a>.</p>

<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="germany-container">germany</a></p>
<p>In Germany, the situation is somewhat unique because (following a compromise reached in 1976 and a revision in 1995) <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1821" rel="nofollow noreferrer">abortion is illegal</a> but the <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1828" rel="nofollow noreferrer">&quot;offence is not considered fulfilled&quot;</a> if</p>
<ul>
<li>done by a physician</li>
<li>within the first 12 weeks of the pregnancy</li>
<li>on the request of the pregnant woman</li>
<li>who has received counseling</li>
</ul>
<p>The case in question here violates most of those conditions and is therefore illegal, not just as a simple abortion, but actually as an &quot;especially serious case&quot; under §218(2)1, carrying up to 5 years of prison.</p>

<p>In the United Kingdom, there is an offence of <strong>child destruction,</strong> codified in the <a href="http://www.legislation.gov.uk/ukpga/Geo5/19-20/34/section/1" rel="noreferrer">Infant Life (Preservation) Act 1929</a></p>
<blockquote>
<p><strong>1 Punishment for child destruction.</strong></p>
<p>(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:</p>
<p>Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.</p>
<p>(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive.</p>
</blockquote>
<p>That is, the abortion of a foetus of more than 28 weeks' gestation is an absolute offence (albeit with a statutory defence); before that time there is a question of interpretation of &quot;capable of being born alive&quot; — this could be interpreted as &quot;capable of being born alive at any time up to the natural term&quot; or &quot;capable of being born alive at the time of the offence&quot;, and the result of those tests would be different for a four-week foetus, for example.</p>
<p>Section 2 goes on to mention the <a href="http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/58" rel="noreferrer">Offences against the Person Act 1861</a>, which outlaws  administering drugs or using instruments to procure abortion; this would appear to satisfy any ambiguity in the test in Section 1: a foetus not capable of being born alive at the time of the offence was still aborted.</p>
<blockquote>
<p>Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.</p>
</blockquote>

<p>In the U.S., this would at the very least constitute a charge of adulteration or poisoning usually have a variety of names for the crime depending on the state.  Federally it's a second degree assault.   There have been several cases in the United States where an assailant killed the fetus of a woman who the assailant was not aware was pregnant at the time of the assault and have had a variety of different charges placed against them for the death of the child, even if the mother survives.   Generally, this might be based on jurisdictional level as well as the child's viability outside of the womb at time of assault and the political feelings to abortion in the general area (with Democrat states tending to not charge for the child or charge to an otherwise lesser included sentence such as assault while Republican states may try the case as a murder (second degree if the defendant can easily show they had no idea the woman was pregnant, but might include First Degree.).   There is certainly an argument that First Degree Murder could follow from drugging charges as a Felony Murder (they never intended to kill someone, but since drugging anyone is a felony crime, then the death of the mother's child would constitute a murder.).</p>

<p>A lot of the problems in giving a definate U.S. answer is unlike the U.K., the U.S. is not a unitary state and the national government does not normally prosecute crimes for which the state has laws to prosecute, so this problem needs a specific jurisdiction.</p>

<p>As a general rule in U.S. Law, it is considered a crime if a pregnant woman loses the child through criminal action comitted against her, typically ranging from Assault up to Murder, and the mother is not typically guilty of comitting a crime if she recieves an illegal abortion from anyone else (i.e. If the abortion occurred over any time limits within a state's codified laws.</p>

<p>In the case of Kermit Gosnell, a Philidelphia Abortion Doctor who was arrested for performing several illegal abortions was charged with 8 counts of Felony  Murder, of which he was convicted of 3 counts plus a charge of manslaughter in the death of one of the mothers.   He was charged with 24 counts of illegal abortion, of which he was convicted of 21 counts.   The 8 charges of murder all stemmed from incidents where the state felt it could prove that the infant was killed after the "birth" while the late-term abortion procedure was being performed (that is, the mother went in for an abortion... during the procedure, the child was removed from the mother while still alive and killed after the removal... suffice to say, I didn't look into the circumstances of what happened, other than to show that the victims of each count of murder were proven to meet the legal definition of "birth" for the purposes of the "abortion" to be legally murder.  I do think one of the standards they used to prove this by was the children had oxygen in their lungs, which would not be possible prior to birth.).  There is an article on Wikipedia if you wish to go into further details as to what he specifically did, and I would highly recommend you do not do so while eating lunch as I had done.   Gosnell is currently serving life in prison without possibility for payroll after agreeing with prosecutors not to appeal the case in exchange for prosecution not perusing the death penalty.</p>

<p>At the very least, in the UK it would be an abuse of the Offences Against the Person Act 1861, Section 23 (or 24).</p>

<p>Section 23 reads:</p>

<blockquote>
  <p>Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable . . . F1 to be kept in penal servitude for any term not exceeding ten years . . . F1</p>
</blockquote>

<p>Section 24 reads:</p>

<blockquote>
  <p>Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . . F1 to be kept in penal servitude . . . F2</p>
</blockquote>

<p>According to the Poisons act of 1972, medicines are exempted from being considered poisons, in general, but the Offences Against the Person Act specifically lists "any other destructive or noxious thing."</p>

<p>You could argue the case under section 23 in that a chemical abortion endangers life and you might win or not depending on a number of factors.  However, you could almost certainly meet the threshold of "annoy" as laid out in section 24.</p>

<h2>The fallacy of methods</h2>

<p>Suppose your company builds space probes which analyze asteroids for mineral value.  You are testing a space probe, and you use its engines to redirect an asteroid so it hits your ex-wife's house.  <strong>There's no law against murdering people with an asteroid. The law hasn't caught up to this novel approach. So I get off scot-free. <em>Right?</em></strong></p>

<p>Wrong. The law doesn't care about methods.  </p>

<p>So you are saying this should be different because you used an abortion pill instead of some other method.  <em>Nope. No bearing on the subject at all</em>.  If non-consensually terminating the fetus is illegal (which it is, in most of the jurisdictions you name), you're guilty of it.  </p>

<p>Is it illegal?  In most of the jurisdictions you list, abortion is legal, but the path to legality was tortuous (Roe v Wade, coat hangers, all that). A strong argument against legalizing abortion is the image of a woman being dragged kicking and screaming to an abortion, by a man - or worse, a court!  As such, it would greatly aid society's comfort with abortion legality if the question of coercing, manipulating or otherwise compelling an abortion was addressed in statute.  As such, I expect most of them will have codified law to prevent that. </p>

<p>After all, non-consensual abortions are one place almost everyone stands together.  They're either against abortions generally, or against denial of choice for the woman.</p>

<h2>Methods may be illegal, also and separately</h2>

<p>For instance it's illegal to murder someone.  It is also illegal to shoot someone with an enhancer if the effect is death. In that case this is not one crime, but two. </p>

<p>Giving a prescription medicine to a person not on the prescription is illegal (and dangerous, because the prescribed person has been cross-checked for allergies and drug interactions. Not clever at all to accidentaly kill the mother too!)</p>

<p>You would be using the abortion pill inconsistent with its labeling and instructions, which is illegal. <em>Seriously</em>.  </p>

<ul>
<li>If your application method is nonstandard, e.g. breaking open the pill and dissolving it in a drink.</li>
<li>If it says "this is for use by a woman who wishes to terminate her pregnancy". </li>
</ul>

<p>Using a medicine improperly, in a manner which causes fatality, may well be an enhancement on the general illegality of improper use.  </p>

<p>Wow, I just had a proper reason to use a gender-forced pronoun. </p>

<p><a href="/questions/tagged/colorado" class="post-tag" title="show questions tagged &#39;colorado&#39;" aria-label="show questions tagged &#39;colorado&#39;" rel="tag" aria-labelledby="colorado-container">colorado</a><a href="/questions/tagged/california" class="post-tag" title="show questions tagged &#39;california&#39;" aria-label="show questions tagged &#39;california&#39;" rel="tag" aria-labelledby="california-container">california</a></p>
<blockquote>
<p>why, in a locality where abortion is legal and not legally considered
murder, could be compelled or forced abortion by a third party be
considered murder?</p>
</blockquote>
<p>This would not be murder Colorado law, which is a locality where abortion is legal and not considered murder (unless the pregnant woman died). Murder is only possible in Colorado once the victim of the murder is born alive.</p>
<p>The time frame in which prescription &quot;abortion pills&quot; (see the footnote below) are effective, and the time frame in which a fetus could be viable outside the womb, don't really overlap. So the possibility of this inducing a late term viable birth of a child followed promptly by its death when &quot;abortion pills&quot; are used in the time frame for which they can be prescribed isn't a possible fact pattern.</p>
<p>A variety of drugs and poisons not intended or legally authorized for use to induce legal abortions could still give rise to this fact pattern, however. This might constitute murder in circumstances where a still birth or miscarriage (i.e. the expulsion of a fetus from a formerly pregnant woman that is not born alive) is caused by drugs or poisons administered without the consent of the pregnant woman would not.</p>
<p>This is not a matter upon which the laws of different U.S. jurisdictions are uniform or highly similar. There is significant variation in charge associated with the offense described and some U.S. jurisdictions would classify the conduct in the question as murder.</p>
<p>Under California law, which applied to the incident in the article, California Penal Code §187 defines the crime of murder to include an act the caused the death of another person or a fetus, and in which a fetus is defined to be an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which typically occurs at seven to eight weeks after fertilization.(<a href="https://www.justia.com/criminal/docs/calcrim/500/520/" rel="nofollow noreferrer">Source</a>).</p>
<h3>Possible Criminal Charges Other Than Murder In Colorado</h3>
<p>The most relevant criminal charges in the State of Colorado are:</p>
<p><strong>Unlawful termination of pregnancy in the first degree.</strong> Colo. Rev. Statutes § 18-3.5-103:</p>
<blockquote>
<p>(1) A person commits the offense of unlawful termination of pregnancy
in the first degree if, with the intent to terminate unlawfully the
pregnancy of a woman, the person unlawfully terminates the woman's
pregnancy.</p>
<p>(2) Unlawful termination of pregnancy in the first degree is a class 3
felony but is a class 2 felony if the woman dies as a result of the
unlawful termination of a pregnancy. . . .</p>
<p>18-3.5-101. Definitions. As used in this article, unless the context
otherwise requires: . . .</p>
<p>(4) &quot;Pregnancy&quot;, for purposes of this article only and notwithstanding
any other definition or use to the contrary, means the presence of an
implanted human embryo or fetus within the uterus of a woman. . . .</p>
<p>(6) &quot;Unlawful termination of pregnancy&quot; means the termination of a
pregnancy by any means other than birth or a medical procedure,
instrument, agent, or drug, for which the consent of the pregnant
woman, or a person authorized by law to act on her behalf, has been
obtained, or for which the pregnant woman's consent is implied by law.</p>
<p>18-3.5-102. Exclusions.</p>
<p>(1) Nothing in this article shall permit the prosecution of a person
for any act of providing medical, osteopathic, surgical, mental
health, dental, nursing, optometric, healing, wellness, or
pharmaceutical care; furnishing inpatient or outpatient hospital or
clinic services; furnishing telemedicine services; or furnishing any
service related to assisted reproduction or genetic testing.</p>
<p>(2) Nothing in this article shall permit the prosecution of a woman
for any act or any failure to act with regard to her own pregnancy.</p>
</blockquote>
<p>Lesser included charges would be:</p>
<p><strong>Unlawful termination of pregnancy in the second degree.</strong> Colo. Rev. Statutes § 18-3.5-104:</p>
<blockquote>
<p>(1) A person commits the offense of unlawful termination of pregnancy
in the second degree if the person knowingly causes the unlawful
termination of the pregnancy of a woman.</p>
<p>(2) (a) . . .  unlawful termination of pregnancy in the second degree
is a class 4 felony.</p>
</blockquote>
<p><strong>Unlawful termination of pregnancy in the fourth degree.</strong> Colo. Rev. Statutes § 18-3.5-106:</p>
<blockquote>
<p>(1) A person commits the offense of unlawful termination of pregnancy
in the fourth degree if the person recklessly causes the unlawful
termination of the pregnancy of a woman at such time as the person
knew or reasonably should have known that the woman was pregnant.</p>
<p>(2) (a) Unlawful termination of pregnancy in the fourth degree is a
class 6 felony.</p>
</blockquote>
<p><strong>Assault in the second degree</strong>, Colo. Rev. Statutes § 18-3-203(1)(e) (edited to exclude language regarding heat of passion assaults):</p>
<blockquote>
<p>For a purpose other than lawful medical or therapeutic treatment, he
intentionally causes stupor, unconsciousness, or other physical or
mental impairment or injury to another person by administering to him,
without his consent, a drug, substance, or preparation capable of
producing the intended harm;</p>
<p>(2)(b) . . . assault in the second degree . . . is a class 4 felony.</p>
<p>(b.5) Assault in the second degree by any person under subsection (1)
of this section . . . is a class 3 felony if the person who is
assaulted, other than a participant in the crime, suffered serious
bodily injury during the commission or attempted commission of or
flight from the commission or attempted commission of murder, robbery,
arson, burglary, escape, kidnapping in the first degree, sexual
assault, sexual assault in the first or second degree as such offenses
existed prior to July 1, 2000, or class 3 felony sexual assault on a
child.</p>
</blockquote>
<p><strong>Reckless endangerment</strong>, Colo. Rev. Statutes § 18-3-208:</p>
<blockquote>
<p>A person who recklessly engages in conduct which creates a substantial
risk of serious bodily injury to another person commits reckless
endangerment, which is a class 3 misdemeanor.</p>
</blockquote>
<p>In the circumstances of the article, but not the hypothetical of the question:</p>
<p><strong>Criminal extortion - aggravated extortion.</strong> Colo. Rev. Statutes § 18-3-207:</p>
<blockquote>
<p>(1) A person commits criminal extortion if:</p>
<p>(a) The person, without legal authority and with the intent to induce
another person against that other person's will to perform an act or
to refrain from performing a lawful act, makes a substantial threat to
confine or restrain, cause economic hardship or bodily injury to, or
damage the property or reputation of, the threatened person or another
person; and</p>
<p>(b) The person threatens to cause the results described in paragraph
(a) of this subsection (1) by:</p>
<p>(I) Performing or causing an unlawful act to be performed; or</p>
<p>(II) Invoking action by a third party, including, but not limited to,
the state or any of its political subdivisions, whose interests are
not substantially related to the interests pursued by the person
making the threat.</p>
<p>(2) A person commits aggravated criminal extortion if, in addition to
the acts described in subsection (1) of this section, the person
threatens to cause the results described in paragraph (a) of
subsection (1) of this section by means of chemical, biological, or
harmful radioactive agents, weapons, or poison.</p>
<p>(3) For the purposes of this section, &quot;substantial threat&quot; means a
threat that is reasonably likely to induce a belief that the threat
will be carried out and is one that threatens that significant
confinement, restraint, injury, or damage will occur.</p>
<p>(4) Criminal extortion, as described in subsections (1) . . . of this
section, is a class 4 felony. Aggravated criminal extortion, as
described in subsection (2) of this section, is a class 3 felony.</p>
</blockquote>
<p>If the pregnant woman died (when the partner did not intend to cause her death and did not know it would cause her death), the partner could also be charged with:</p>
<p><strong>Manslaughter.</strong> Colo. Rev. Statutes § 18-3-104:</p>
<blockquote>
<p>(1) A person commits the crime of manslaughter if:</p>
<p>(a) Such person recklessly causes the death of another person; . . .</p>
<p>(2) Manslaughter is a class 4 felony.</p>
</blockquote>
<p>But unlawful termination of pregnancy in the first degree causing the death of the pregnant woman would be the more serious offense, although if the drug caused the death of the pregnant woman but the attempt to terminate the pregnancy failed and the pregnant woman gave birth to a living child, manslaughter and attempted termination of pregnancy in the first degree (which is a class 4 felony) would be the most serious charges available (but might result in consecutive terms rather than concurrent ones, the issue is an open question in Colorado law).</p>
<p>All of the relevant criminal charges are codified <a href="https://leg.colorado.gov/sites/default/files/images/olls/crs2018-title-18.pdf" rel="nofollow noreferrer">here</a>.</p>
<p>Conceivably, a federal statute, such as a controlled substances act violation or a regulatory crime associated with violation of FDA prescription drug regulations could also apply. But conduct like the conduct described in the question and article it links are predominantly prosecuted under state law except in places where the federal government has exclusive jurisdiction (e.g. the territorial and maritime jurisdiction of the United States, and court-martial offenses under military law by people subject to it).</p>
<h3>Civil Lawsuits</h3>
<p>A civil lawsuit for &quot;assault and battery&quot;, and probably also for &quot;outrageous conduct&quot; a.k.a. &quot;intentional infliction of emotional distress&quot; would also be recognized in Colorado law. Non-economic damages, medical expenses, and exemplary (i.e. punitive) damages would be the main damages in these cases.</p>
<p>If the pregnant woman died, in Colorado, a civil action belonging to her next of kin (not her probate estate) could be brought for &quot;wrongful death&quot;, but the civil lawsuits for assault and battery and for outrageous conduct would not survive her death. These damages could include non-economic damages, economic damages to the next of kin, and exemplary (i.e. punitive) damages.</p>
<p>The civil lawsuit consequences of these actions would be much more similar across U.S. states than the criminal law consequences, although post-<em>Dobbs</em> (the 2022 U.S. Supreme Court decision overruling <em>Roe v. Wade</em>) this is less true.</p>
<h3>Footnote Re &quot;Abortion Pills&quot;</h3>
<p>&quot;<a href="https://www.cvs.com/shop/plan-b-one-step-emergency-contraceptive-tablet-prodid-876669" rel="nofollow noreferrer">Plan B</a>&quot; which can be purchased without a prescription from a doctor (sometimes a pharmacist prescription has been required) and is commonly called &quot;emergency contraception&quot; (it is a high dose birth control bill in essence) is not commonly called an &quot;abortion pill&quot;. It is impossible for all practical purposes to confirm that one is pregnant in the time frame that Plan B takes effect (within a day or two of unprotected sexual intercourse).</p>
<p>Involuntary administration of Plan B would not constitute murder under California law due to its definition of &quot;fetus&quot; for purposes of its murder statute, although it would still be a lesser crime under California or Colorado law.</p>
<p>“<a href="https://www.plannedparenthood.org/learn/abortion/the-abortion-pill" rel="nofollow noreferrer">Abortion pill</a>” is the common name for using two different medicines (together) to end a pregnancy: mifepristone and misoprostol. This is a <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information" rel="nofollow noreferrer">prescription drug</a> that must be prescribed by a non-pharmacist medical professional with prescribing authority in the U.S.</p>

<p>Independent of the actual act of murdering or unlawfully ending an unborn child or destroying a not-quite-human "thing", whichever way you want to call it, there are <strong>at least</strong> three serious issues which are without any doubt felonies both in Europe and the USA:</p>

<ol>
<li>Bodily harm using poison (the "using poison" part is important insofar as, at least in most European countries, it <em>doubles</em> the sentence and bars probation or monetary penalty, that is, <em>you go to jail</em>). An abortion is without doubt <em>serious</em> bodily harm, both physically and psychically.</li>
<li>Endangerment. Not the less serious kind (wanton negligence), but the other, nefarious kind (deliberate, and victim not being aware). This will almost certainly bar probation or monetary penalty, too. An abortion is not just somewhat uncomfortable and associated with some minor troubles, but can possibly end <em>lethal</em>. Which, by administering the drug covertly, you condone.</li>
<li>Illegal administration and/or trade of controlled drugs (abortion pills being strictly prescription-only). Possibly illegal acquisition of forementioned, too (the pill had to come from somewhere, after all). So that involves either getting it on the black market, or document forgery, or bribing a physician, or something the like. And, of course, <em>giving it to</em> the woman without being authorized to do so.</li>
</ol>

<p>In the case of "pointing a gun, forced ingestion"... well, pretty obviously it doesn't get any better in that case (threat, coercion, gun usage, gun ownage?). </p>
