The Oklahoma legislature appears on the verge of passing a bill that would give pregnant women the right to use lethal force in response to threats against their babies. The Use of Force For the Protection of the Unborn Act would protect pregnant women from being criminally charged when they kill people who threaten their unborn children.

The bill awaiting the signature of the governor states in pertinent part:

A. A pregnant woman is justified in using force or deadly force against another to protect her unborn child if:

1. Under the circumstances as the pregnant woman reasonably believes them to be, she would be justified in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child; and

2. She reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.

There is no need for the other individual to know that the woman is pregnant and there is no requirement of a warning as to the status of the woman. Moreover, “the pregnant woman is not obligated to retreat before using force or deadly force to protect her unborn child, unless she knows that she can thereby secure the complete safety of her unborn child.” Thus, unless she knows with certainty that she can completely safeguard the unborn child or fetus, there is no retreat required.

Notably, the act applies to “unborn children” which includes “from conception until birth.” Thus, a woman with an embryo in the first trimester would have the right to use lethal force.

Oklahoma already has laws giving people the right to kill to protect their own lives and the question is how far this law goes beyond what the common law and statutes already allow. Under the common law, you may use force calculated to kill or cause serious bodily injury in protection of yourself or others. You may even do so when reasonable mistaken.

The legislation was reportedly prompted by the manslaughter conviction of a Michigan woman stabbed and killed her boyfriend after he hit her in the stomach. She was who was carrying quadruplets lost the babies. She was convicted of manslaughter.

Yet, this case involving Jaclyn Kurr and Antonio Pena occurred seven years ago and appears virtually unique. It is unclear why Oklahoma saw the need to create a new law when existing law protects any reasonable act of self-defense. Moreover, the case is not as clear as conservative commentators have portrayed. Kurr was a four-time habitual offender. Moreover, the court specifically allowed Kurr to argue defense of others — in this case the unborn babies. Thus, the case shows that you do not need a special law in such cases. What the court did not allow was a special instruction to the jury on the issue — leaving it to argument alone. That was found to be in error and that an instruction should have been permitted. The appellate court ruled:

the issue today is straightforward: Is a nonviable fetus entitled to the
protection of the laws of the state of Michigan such that an individual, typically the mother,
may defend the fetus during an assault against the mother? We conclude that an
individual may indeed defend a fetus from such an assault and may even use deadly force if she
honestly and reasonably believes the fetus to be in danger of imminent death or great bodily
harm. Any other result would be anomalous, given the express policy of this state as declared by
the Legislature in the fetal protection act. Because the trial court did not instruct the jury
regarding the defense of others theory as requested by defendant, we reverse defendant’s conviction and remand for a new trial.

This ruling was made on existing law of defense of others. Since fetuses were treated as worthy of criminal law protections, the court found that a fetus must also be treated as covered under the standard rules.

The question raised under the Oklahoma law is whether going beyond the sufficient protections under existing statutory and common laws will produce interpretive problems. Some have claimed that it gives pregnant women license to kill — though that seems a bit far fetched. On one level, it simply codifies the general rule.

However, the law leaves a lot of questions in interpretation in what is intended beyond the status quo. For example, the standard is stated as a woman is justified in using lethal force “[u]nder the circumstances as the pregnant woman reasonably believes them to be, she would be justified in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child.” That is a remarkably convoluted and badly crafted line and seems to suggest a virtual subjective rather than an objective view of reasonableness.” The drafters appear to have written this law on the back of a car hood. The reasonable clauses collide in a pile up in two lines: “under circumstances as the pregnant woman reasonable believes them to be, she would be justified in using . . . deadly force to protect herself against the unlawful force . . . she reasonably believes to be threatening her unborn child” so long as “she reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.” What exactly does that mean in terms of an objective standard?

Moreover, it includes the right to use deadly force against any use of “force” without qualification so long as the woman reasonably believes that it is necessary to protect her unborn child. If a pregnant woman is being shoved and could fall, does she have a right to use deadly force under this standard? It gets even more intriguing when one considers that “force” is defined as “violence, compulsion, or constraint exerted upon or against another.” “Compulsion or constraint” would seem potentially to extend the justification beyond the confines of the common law.

What is troubling is that there appeared little debate over the poor drafting of the law, which had no opposition in Oklahoma where politicians feared being labeled as anti-pregnant women or pro-baby killer. However, the law could be challenged on the vagueness of its language and is likely to add confusion rather than clarity in the area.

For my part, I am going to give a speech in Oklahoma City in a week and I intend to give any pregnant woman a wide birth.

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