Yesterday, Cuyahoga County, Ohio prosecutor Thomas McGinty announced that he may seek the death penalty against Ariel Castro, the man who allegedly kidnapped, raped and beat three women and held them captive for about a decade. The basis for seeking the death penalty is charges that Castro forced one of his captives to miscarry by starving and punching her. Under Ohio law, “unlawful termination of another’s pregnancy” is considered murder.
As a constitutional matter, there is nothing improper about treating involuntary termination of another’s pregnancy as a very serious crime. The Supreme Court’s decisions recognize “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” This is a right that belongs to the pregnant woman, not to monsters who would violently impose their wishes upon a woman. So even if the alleged miscarriages in this case occurred before “viability,” Castro will find little comfort in the Court’s abortion decisions. Nor should he. It is tough to imagine a more depraved act than intentionally abusing a woman until she miscarries.
The question of whether Castro may receive the death penalty, however, risks turning this trial into a proxy fight over whether a woman has the right to choose abortion. In Kennedy v. Louisiana the Supreme Court held that, with the exception of certain “offenses against the state” such as treason or espionage, “the death penalty should not be expanded to instances where the victim’s life was not taken.” Quoting a previous decision that presented a similar issue, the Court explained that death is an “excessive penalty” for a criminal who “does not take human life.”
Abortion foes are already using Castro’s trial as a vehicle to express their opposition to reproductive freedom — just witness this National Review piece comparing the right to choose to “the logic of slavery, not of individual liberty” — it is inevitable that many of these same foes will clamor for Castro to be killed by the state in the hopes of creating a precedent establishing that a fetus is a “human life.”
To be clear, the legal question of whether a fetus is a “human life” for purposes of determining whether Castro may receive the death penalty is distinct from the legal question of whether a fetus is entitled to “personhood,” a term often used by the most rigid opponents of reproductive choice. There is no guarantee that a court decision permitting Castro to be executed will implement Todd Akin’s stance on abortion. But fine legal distinctions are unlikely to deter personhood advocates from using Castro’s case as an opportunity to advance their broader agenda.