Friday, March 8, 2013

Arkansas, Abortion, and Notion of Specific Intent

You might have heard about the "Heartbeat Protection Act" (SB 134), a bill recently passed by the Arkansas House of Representatives. (You can read about it here.) The bill is supposed to ban abortions after 12 weeks (barring special circumstances). Because this was crafted by the Arkansas House of Representatives, I thought there was a fair chance that it would contain some colossal cuss up.  I found the text of the bill (here) and I think I might have found the colossal cuss up.  

Here's what the bill would prohibit: 
A person authorized to perform abortions under Arkansas law shall 29 not perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human individual whose heartbeat has been detected under § 20-16-1303 and is twelve (12) weeks or greater gestation. 
Notice the phrase 'specific intent'.  My initial worry about the bill's language is this. In discussions of abortion in moral philosophy, a distinction is often drawn between what's foreseen and what's intended. A doctor could remove the fetus knowing that it would result in the death of the fetus without intending the fetus' death (e.g., if the doctor's purpose was to remove a cancerous uterus and this required removing the fetus).  If a doctor can remove the fetus without intending the the termination of the fetus' life, it would seem that the bill wouldn't prohibit abortions after 12 weeks of gestation.

Of course, moral philosophy is one thing and the law is something else entirely.  As a friend pointed out in a scholarly discussion of this (on Facebook), the law will often say that an agent did something intentionally so long as they did something knowingly. If you knew with practical certainty that something would result, that would be sufficient to establish that you did something intentionally (e.g., if you plant a bomb on a plane with the purpose of killing a rival but without hoping the injure the other passengers, you  would count as intentionally injuring or killing the other passengers if you knew with practical certainty that this would result).  

If that's the end of it, then maybe I didn't find the colossal cuss up.  It turns out that matters might be more complicated still.  The legislature used the phrase 'specific intent', and I've been told that there's a difference between specific and general intent in the law.  Here's a passage taken from United States v. Bailey, 444 (1980) (here) (Thanks to Andrew Wake):
At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. As one treatise explained:
    "Sometimes `general intent' is used in the same way as `criminal intent' to mean the general notion of mens rea, while `specific intent' is taken to mean the mental state required for a particular crime. Or, `general intent' may be used to encompass all forms of the mental state requirement, while `specific intent' is limited to the one mental state of intent. Another possibility is that `general intent' will be used to characterize an intent to do something on an undetermined occasion, and `specific intent' to denote an intent to do that thing at a particular time and place." W. LaFave & A. Scott, Handbook on Criminal Law 28, pp. 201-202 (1972) (footnotes omitted) (hereinafter LaFave & Scott). 
This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified [444 U.S. 394, 404]   in the American Law Institute's Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence. See LaFave & Scott 194; Model Penal Code 2.02. Perhaps the most significant, and most esoteric, distinction drawn by this analysis is that between the mental states of "purpose" and "knowledge." As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978), a person who causes a particular result is said to act purposefully if "`he consciously desires that result, whatever the likelihood of that result happening from his conduct,'" while he is said to act knowingly if he is aware "`that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.'"
So, maybe this dog will hunt. If specific intent requires conscious purpose or desire and a doctor can perform an abortion without the conscious purpose or desire to terminate the life of the fetus, there might be a problem with the bill after all. Or, maybe not. I'm not an expert.  That's what the comments box is for.