The overturning of Roe v. Wade gave the states the ability to regulate or ban abortions. Fifteen states offer no exceptions for rape, incest or both. In Texas, performing an abortion is now a felony punishable by up to life in prison and is subject to a civil penalty of at least $100,000, plus attorney’s fees. Doctors can also lose their medical licenses if they perform abortions. Other states are also heading in that direction.

For example, if a 15-year-old is raped by a stranger or a family member and becomes pregnant, she would have no choice but to have the baby. Factually, age doesn’t matter if a woman gets raped. She would have no alternative but to have the baby.

Let’s take a case that’s closer to home; one that does not involve rape. For example, let’s assume that Mr. and Mrs. Bush, no relation to the former presidents, who have been married for 10 years and have two children, a boy age 6 and a daughter age 4, decide to have another child and happily Mrs. Bush becomes pregnant. However, deep into the pregnancy, say in the 26th week, doctors discover a hemorrhage and cardiovascular problem with Mrs. Bush and the only way to save her life is for the doctors to perform an abortion.

In a state where an abortion is illegal no matter the circumstances, Mrs. Bush will die and there’s a good chance so will the baby, leaving Mr. Bush without his beloved wife and suddenly having sole responsibility to raise the children. Based upon this situation, what can Mr. Bush do and can anyone be held responsible for the death of his wife?

Could this be a case of “gross negligence” or criminal negligence?” Although I am not a lawyer, by doing some research I found that the exact language used to describe this negligence standard, although similar, varies by state. This “criminal negligence” or recklessness that resulted in the unintentional death or killing is in fact, involuntary manslaughter. It is distinguished from other forms of homicide because it does not require deliberation or premeditation, or even intent.

To differentiate, recklessness usually means that the defendant was aware of the risk that they were creating, while negligence usually means that the defendant was not aware of the risk but reasonably should have been aware of it. The level of negligence required for involuntary manslaughter requires that the defendant acted in a very unreasonable manner.

“Criminal negligence can also involve a failure to perform an act that the defendant has a duty to perform. Where a parent has a duty to take care of and protect a child, but the child dies when left in the car on a hot day, the parent may be culpable for involuntary manslaughter. Another example would be a tour operator who fails to advise his passengers of the proper safety protocols, resulting in the death of a passenger. This tour operator has failed to perform his duty, resulting in criminal negligence.”

The base sentence for involuntary manslaughter under federal sentencing guidelines is a 10- to 16-month prison sentence and the maximum penalty is eight years imprisonment along with fines.

Getting back to the criminal negligence in the death of Mrs. Bush, the question is who is responsible and should be the defendants in this case? There is no doubt that those who made these rulings or laws to regulate and ban abortions should have reasonably been aware of the risk. Such defendants should include the state lawmakers who approved of such laws. Further, who gave these state lawmakers the power to make such laws? It was the majority of Supreme Court Justices who approved the overturning of Roe v. Wade.  They also should be held responsible for her death. After all, they too should not be above the law.

As mentioned above, although I am not a lawyer, hopefully this approach will work or it will allow others to expand on this legal-type concept with this new and different approach.

Bottom Line: Someone must be legally responsible for the death of a pregnant individual by preventing her from having an abortion and such individual or individuals should be subject to criminal charges.

Alvin Goldberg

Great Neck