A Clarification about Olivia Garcia

Dear Fr. Bloom,

I visit your web site on a regular basis and enjoy reading what you post on it. Have you ever considered posting monthly book reviews as you once did?

I read Was Olivia Garcia a Human Person?. While I think it absurd and wrong that the fetus is not recognized as a human being by the legal system, I feel compelled to make some points of clarification based on what I read in your homily. (Since starting law school, I have become more and more irritated with popular news stories about the legal system.)

1) The reason that this unfortunate decision occurred is that in California, there is no crime of manslaughter of a fetus. That is, nowhere in the statute defining manslaughter is there any mention of a fetus. Thus, a defendant can only get convicted of manslaughter if a fetus is born alive, whereupon it is recognized as a human being. Since Baby Garcia did not have a heartbeat for the first 45 minutes after birth (according to the about.com article you linked to), I don't think any judge in California would have come to a conclusion different from the judge in this case.

2) On the other hand, California does have the crime of murder of a fetus. That is, Penal Code section 187 defines murder as the unlawful homicide of a human being, OR A FETUS, with malice aforethought. While the fetus is distinguished from a human being, it does show that the fetus does have (some) protection under the law. The recent case of _People v. Dennis_, 17 Cal. 4th 468 (1998), was an instance of a man receiving the death penalty for (literally) butchering his eight-months pregnant ex-wife (1st degree murder for the ex-wife, 2nd degree murder for the fetus).

3) However, unlike what the National Catholic Register columnist suggested, the judge certainly did not think that her decision might somehow cause abortionists to be treated under the law as murderers. California's definition of murder specifically excludes abortions.

Since we are talking about protecting human life, I must say that cases and persons such as _Dennis_ make we wonder about the Church's teaching on capital punishment. We say that God does not condemn anyone to hell, but rather that we condemen ourselves by our actions; why don't we say that the state doesn't impose this punishment on Dennis, but that he imposes it himself by his actions?

--Bill

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Dear Bill,

I appreciate the clarifications. We need people like yourself who can combine the precision of law with commitment to the dignity of each human life.

You raise an interesting point in the last paragraph. C.S. Lewis argued that a truly repentant murderer should turn himself in and accept the appropriate punishment (death penalty). The Holy Father (as I understand his argument) says the death penalty can only be justified on the basis of legitimate defense and that in our modern society we can effectively defend ourselves from a murderer by locking him up permanently. I am guessing that the reason he argues this way is to make a radical statement about the value of each human life, even Dennis.

However, neither the pope nor the Catechism denies that the state has the right to impose the death penalty. We are after all not talking about an innocent human being, as is the case in abortion.

As Christians we need to do more reflection on the meaning of punishment. We have tended to view punishment as un-Christian and prefer to talk instead about "therapy." I would like to ask you as a law student and a Christian, how you understand the concept of punishment?

One of my reflections, is that when someone has committed a wrong, we naturally want him to feel in his own flesh the harm he has done to the other person. A homey example: my older brother had the bad habit of biting his younger brother. My mom tried to get him to stop, but nothing seemed to work. Finally, out of desperation, she bit him! Today my mom would probably have the Child Protection Agency at her door, but back then it worked.

Regarding hell we have to believe that, while human justice is always imperfect, God's has no flaw. And that his mercy is without limit. The lost souls choose to stay out of heaven. Even for the saved, the amount of cleansing to enter God's presence must be enormous. That's why every day we should pray for our deceased loves ones and all the faithful departed.

God bless,

Fr. Phil Bloom

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