Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, March 22, 2006

The Brody Act

Is the name of the bill that would change the definition of 'person' for purposes of criminal homicides or assaults to include "an unborn child at every stage of gestation in utero from conception to birth, regardless of viability."

Bama Blog has a good summary of the ways in which this bill is already being used for its real purpose: electioneering.

As for any actual criminal purposes, all it does is change the definition of person. That means it could be a crime if an unborn child is killed during a homicide or assault. The state would still have to prove all the elements of the crime. I.e. To prove murder, the state would have to prove that the defendant intended to kill the unborn child. That would not be so difficult in a case like the one for which the bill is named, where the woman was eight and a half months pregnant. It would have been obvious the woman was pregnant, and doing something when it is obvious that harm will result is doing something intentionally. The bill, though, defines person from conception. How is the state going to prove the defendant knew a woman was six weeks pregnant? In short, unless the victim is obviously pregnant, I just cannot imagine many successful prosecutions under this law.

That doesn't mean it is a bad bill, but maybe the definition should start at a later time period. Doing so would calm the (justifiable) fears of the pro-choice crowd without really watering down the bill.