If Abortion Can Be Prosecuted as Murder, Then Let’s Start Talking Felony Murder

Elaine Gilmartin
3 min readJun 26, 2022

by Elaine Gilmartin

Donald Tong

The felony murder rule is an exception to the normal rules of homicide. Normally, a defendant can be convicted of murder only if a prosecutor shows that the defendant acted with the intent to kill or with a reckless indifference to human life.Under the felony murder rule, however, a defendant can be convicted of murder even if the defendant did not act with intent or a reckless indifference; the prosecution must show only that the defendant participated in a felony where fatalities occurred.”

https://www.justia.com/criminal/offenses/homicide/felony-murder/

Under the extremist view that a fertilized embryo should be conferred personhood, is a man acting with reckless indifference to human life having unprotected sex with a woman?

If she becomes pregnant and has an abortion, with or without his knowledge, then it would seem he must bear some legal culpability.

Much like the driver of a getaway car who simply thought he was helping a friend get to the bank for a withdrawal, knowledge of what occurs inside the bank, armed robbery, a shootout, someone dies, is not necessary. The driver was simply a party to something that got out of hand, whether or not he could have foreseen this.

There are people spending decades in prison, often people of color but that’s another article on the racist criminal justice system, for something as innocuous as giving someone a ride to what ends up being the scene of a crime.

So, if the scene of the crime, the uterus in this case, becomes evidence for convicting a woman of murder, it would seem his presence at the scene of the “crime” should be liable to prosecution as well. After all, it was his facilitation of creating a fertilized embryo in the first place that allowed for this “crime” even to take place.

You could argue he had no knowledge pregnancy occurred, or that the woman was even seeking an abortion. I suppose the people convicted of felony murder would argue similar points as well.

I didn’t know he had a gun!

I didn’t know he was going to rob those people!”

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Elaine Gilmartin

A therapist by profession, a runner by passion, a writer by necessity.