6/03/2007

An Interesting Dilemma

I came across an interesting case in Halakhic literature, but I think it would be a fascinating application in American law. The scenario it the following:

A female death row inmate goes for her final medical check-up (as Sarah Tancredi put it, “We have to make sure you’re healthy when we kill you.”). The check-up yields the surprising result that this inmate, facing immediate death, is pregnant. What to do?

If one takes an extreme pro-life view, then executing this woman would mean executing the innocent fetus as well. The alternative is to delay the execution – which is itself debatably ‘cruel and unusual punishment’ – and if you throw in that the inmate would be forced to suffer the inhumanity of waiting to bring a child into this world only to have it taken away immediately, is almost an iron-clad case of cruel and unusual punishment. Thus, in this case, saving the fetus would probably save the inmate as well.

If one is pro-choice, it means that the fetus is fundamentally not treated as a human being. The health of the fetus, whether the inmate wishes to keep it or not, would not be able to delay the execution.

The interesting thing, of course, is that pro-life and pro-death penalty seem to be correlated, as to pro-choice and anti-capital punishment. Here’s a scenario where holding one generates a situation whereby one would violate the other.

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