How the Left Will Use Lindsay Clancy to Decriminalize Infanticide.

On January 24, 2023, Lindsay Clancy strangled her three children in the basement of her Duxbury, Massachusetts home. Cora was five, Dawson three, Callan eight months. She then threw herself from a second-story window and survived, paralyzed.

I’ll be honest. I did not want to write about this case. It seemed like a no-win article to me. There’s so much emotion wrapped up in it. But after reading the 9-1-1 transcript and being moved to tears, it broke me, and I decided this was worth the time.

My whole goal with starting Everyday Interpreter has been to help people think well about the difficult topics they face in their everyday life. As they talk with their friends or their family, or try to walk through these issues with their kids, this case provides another good opportunity for all of us to demonstrate some intellectual humility. And also courage.

I’ll tell you up front what I came away with, so you can watch for it as we go. In every one of these cases, the law looked at a dead child and found a victim. It just wasn’t the one who died.

You may have seen that on September 4, after about five weeks of testimony and a week of deliberating, the Plymouth County jury deadlocked and Judge William Sullivan declared a mistrial, as one lone holdout juror prevented an acquittal, meaning Clancy would have walked away.

If you, like me, were dumbfounded hearing that for the first time, and maybe discouraged that eleven of your fellow citizens could come to this conclusion, let me stop you right there. Massachusetts is actually way more complicated, and far more backward, in the way it set up this case than you might realize.

Let me start with a fact. This trial was never about whether Clancy killed the children. They conceded that right off the bat. What they raised, which changed the entire case, was whether she was criminally responsible when she did it.

And here, Massachusetts law does something I was shocked by. Jed Rubenfeld, a constitutional law professor at Yale, explained it better than I could in The Free Press, in a piece called “The Law Is Inadequate to Judge Lindsay Clancy.” You see, in most of the country and in federal court, a defendant who pleads insanity has to prove it. But Massachusetts is a massive exception. Once the defense raises the question, the burden actually flips back to the Commonwealth — in this case the prosecution — to prove beyond a reasonable doubt that she was criminally responsible. As Rubenfeld put it in a recent interview, “The state had to prove she was not insane. How do you prove a negative?”

The judge instructed the jury that if they had any reasonable doubt about her sanity, they must acquit. Which means that unless the state proved beyond a reasonable doubt that she was completely sane, she walks away. And the trouble with proving she was completely sane is that both sides had experts: some who testified she was clearly psychotic, and others who said she was clearly very ill, but not psychotic.

You can begin to see how the deck was really stacked against a conviction, despite the horrendous nature of her crime. Notice, too, what the whole trial had become about. Three children were dead in a basement. The question the law spent five weeks on was the condition of their mother’s mind.

One last wrinkle. There is a crime on the books in Massachusetts that may have been more fitting. Rubenfeld wrote: “There is a crime that fits this dreadful bill. It’s not murder. It’s called voluntary manslaughter.” Massachusetts defines it as an “unlawful homicide arising not from malice, but ‘from the frailty of human nature.’” It would have gotten her up to twenty years. But the jury never heard about it. Massachusetts limits that charge to a few old categories of provocation — a man who kills after a fistfight, or after discovering his wife’s infidelity — and as Rubenfeld notes, “Under Massachusetts law, a mother who kills her children is not eligible for the voluntary manslaughter reduction.”

So the jury’s real choices were to convict her of first-degree murder, convict her of involuntary manslaughter or second-degree murder — both of which, in Massachusetts, describe unintentional killings she plainly did not commit — or acquit her outright.

When you consider the two factors at play: the state’s burden to prove she was completely sane beyond a reasonable doubt on the one hand, and the lack of a middle road on the other, you begin to see how this horrifying case seems to inevitably run toward acquittal.

In fact, as I read more and more about the horrific nature of the case, and heard the jurors talking about it afterward, you begin to see how the gruesome nature of what she did seems to have perversely worked in her favor. Jurors unable to fathom the violence were led to the conclusion that there’s no way someone in their right mind could act this way.

The more brutal the act, the easier it is to argue that no sound mind could have done it. And so under this burden, Clancy’s lawyers never had to prove she was insane. They only had to make twelve people wonder that she might have been. The horror of her actions actually does the work for her. Trot out a couple of psychiatric experts who are always going to disagree, and, as Rubenfeld summarizes, “Whoever bears the burden of proof is going to lose.”

Let me tip my hand a little bit (in case you hadn’t picked up on my stance yet already) and say I think this is totally backwards. A woman who confesses to killing her children should always carry the burden of showing she was not criminally responsible, rather than sitting there silent while the state struggles to prove that she was. Most states and the federal government agree with me, and require the defendant to prove insanity by clear and convincing evidence.

Had the burden been on Clancy’s team to prove her insanity, I seriously doubt eleven jurors would have been ready to let her walk.

Now let me go back for a moment to why I didn’t want to touch this case. We’ve all probably seen on social media the women lined up on the sidewalk outside the courthouse, and the GoFundMe raising over a million dollars in support of Lindsay. This massive energy has been aimed at demonstrating support for Clancy — precisely what they believe she lacked in the lead-up to the murders. Their framing, that the system failed her, is consistent with an ideology that always elects to see the woman as the first, highest, and sometimes only victim.

If their collective demonstration had been confined to the sidewalk, and their aim was nothing but an emotional symbol, I think I would be less concerned. But in the aftermath of the mistrial, I am afraid the progressive left gave us a picture of where they’re hoping cases like these push our legal system. It’s worth diving into for a moment, so that you too can be on guard against this old tactic of edge-case obliteration.

Postpartum Support International was founded in 1987 and has many chapters, certifications, and plenty of professionals. They call themselves the nation’s leading nonprofit dedicated to perinatal mental health. On September 4, the day of the mistrial, they announced a statement saying that trying Clancy for first-degree murder “demands that we, as a society, confront an uncomfortable truth: The United States continues to prosecute mothers for the consequences of a severe, poorly understood, temporary, and treatable mental health condition related to childbirth.” It pledged to keep pushing “for laws in every state that treat these mothers as patients.”

And here’s the truly heinous kicker. They pointed to “more than two dozen countries, including England, Canada, and Australia,” whose infanticide laws “direct these mothers toward psychiatric care rather than prison.”

There is so much buried in the examples they chose, specifically the inclusion of Canada. Our northern neighbors have hollowed out their infanticide law to the point that it now offers something close to blanket immunity to postpartum women.

The story begins in 1948, when Canada created a special category for the woman who kills her child because her mind is disturbed by childbirth, insisting that she faces not murder with its life sentence, but a lesser charge carrying three years in prison at first, later raised to five, which in real-life situations often carried no penalty at all.

You might assume this was mercy — that Parliament was seeking to spare desperate women. It wasn’t. They were dealing with a practical problem: juries would not convict these women of murder no matter what the evidence showed, so prosecutors had stopped trying, charging them instead with concealment of birth because it was the only charge that would stick. MP John Diefenbaker said it plainly on the floor of the House: “over and over again juries have refused to convict, regardless of the evidence. I presume that the reason for this amendment is to make it easier to get a conviction.” MP Davie Fulton put it more bluntly still: “what is actually being done is to change the law in order to permit convictions being made.”

And listen to the Justice Minister, James Ilsley, describe what he was solving for. “It is a most undesirable situation that our law should be such that nobody will apply it properly,” he said. In passing this law, “we are meeting not only public opinion as shown by the indisposition of juries to convict, but also the wishes of experienced prosecuting departments who want a law that is susceptible of application.”

A law that is susceptible of application. Rather than find jurors who would apply the law, Parliament changed the law to what jurors were willing to apply.

It presents a great set of questions: what do you do when juries refuse to apply the law? And is consistent acquittal worth establishing this legal off-ramp?

Canada gives us an instructive history lesson in what would happen if we did something similar.

Subsequent revisions to their law in the fifties meant that practically any mother could receive the lesser charge of infanticide instead of murder, even where there was no evidence to establish that her mind was disturbed at all.

Fast forward to 2011. Alberta had its own Clancy case, as Katrina Effert had been convicted by two separate Alberta juries of murder (a shocking outcome considering the history in Canada with infanticide). Her crime — strangling her newborn son with her underwear and throwing his body over a fence — was so heinous that even Canada, which struggled to apply the murder statutes appropriately, had no problem doing so, twice.

But because of this legal off-ramp, a judge stepped in to obstruct what it determined to be an unreasonable verdict. She (Justice Joanne Veit) substituted infanticide, this lesser crime, and handed down a three-year suspended sentence (essentially no jail time).

Her reasoning is worth considering. She said, “Naturally, Canadians are grieved by an infant’s death, especially at the hands of the infant’s mother, but Canadians also grieve for the mother.”

And then she goes on to reveal exactly what we should all fear: “While many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.”

This Canadian judge, explaining why a woman who strangled her newborn should receive a different sentence and actually no jail time at all, reached for abortion as the comparative analogy. A woman struggling with her pregnancy gets an abortion. A woman struggling with her baby reaches for infanticide.

And look at what her reasoning actually does. Equal consideration for the mother sounds like balancing the equation. In practice it meant an absence of justice for the child. Once the court decides the mother is also a victim, the dead child stops being the thing it is existed to answer for.

By 2016, just five years later, the Supreme Court of Canada ended any illusion of the original intent of the law — those extreme edge cases of true mental disturbance. The Court rejected the argument that Parliament meant to limit infanticide to mothers with “a substantial psychological problem.” Instead it held that “disturbed” is “not a legal or medical term of art,” that it means only “mentally agitated,” “mentally unstable,” or “mental discomposure,” and that the disturbance “need not constitute a defined mental or psychological condition or a mental illness.” No diagnosis required. The Court described the resulting standard as “a very low threshold.” And the disturbance does not even have to have caused the killing. It only has to be present.

You see, the standard only got looser. What started as an attempt to make sure they could convict and prosecute someone who murdered a child, and get some justice from a jury, had turned in just sixty years into a law that now grants blanket immunity for postpartum mothers, regardless of any disturbance whatsoever. The door opened for the woman who had genuinely lost her mind, and it widened until every mother is a patient.

Kirsten Kramar, the sociologist who wrote the leading book on Canadian infanticide and who defends the law, told the Edmonton Journal in 2006 that no Canadian woman had been jailed for longer than a year for this crime since the provision was enacted in 1948. Convicted mothers, she said, “usually get no jail time at all.” That is fifty-eight years, from a scholar who thinks the law is a good one.

Here is the part I did not expect. Canada’s own prosecutors eventually tried to break free.

Around 2006, Crown attorneys stopped asking for infanticide charges altogether. Statistics Canada recorded 86 women charged with infanticide between 1977 and 2006, and then none. They began charging murder instead and refusing to plead it down. You can understand why. They had watched the standard be abused and the cases get uglier, and they wanted no part of it.

It did not work. Effert offered to plead guilty to infanticide and the Crown refused, tried her for murder, and won. Twice. The Court of Appeal substituted infanticide anyway. And that 2016 Supreme Court ruling I just described, the one that emptied the word “disturbed” of any medical meaning? That was Alberta’s Crown, taking the case of a woman who had put three newborns in a dumpster over three years, asking the Court for a murder retrial and a real medical standard. Seven judges said no, unanimously.

The people whose job it is to prosecute these killings looked at what the law had become and tried to stop using it. They could not. The exception Parliament created in 1948 had become load-bearing, and by the time the prosecutors wanted out, the courts would not let them go.

Before you dismiss all of this as a Canadian problem, and tell me we would never go that way, look at what we have already built here.

We are still, for the moment, willing to call a woman a criminal and punish her for killing her child minutes after it is born. But it is also political suicide to call her a criminal for killing that child just minutes before her birth. That hypocrisy, I believe, can be used as a wedge to legalize infanticide.

Consider what we have actually written down. In 9 states plus D.C., there is no gestational limit to abortion at all. A child’s life can be ended at 39 weeks and six days, potentially just minutes from a safe and healthy delivery. And in the states that do ban it, the ban does not reach the mother. I want to make sure we understand that part, because I don’t think most of us do. When your state bans abortion at six weeks, you probably picture a law that tells everyone involved, don’t do this. That’s not what it says. It tells the doctor don’t do this. The mother isn’t in it. She is written out of it by name.

So put the two halves together. In some states the killing is lawful right up to the day of delivery. In the rest, it is unlawful but she faces no penalties anyway. Whatever is holding the line at birth, it is not a principle about the child. It is the “magical” birth canal. And a country that has already accepted this deception is not standing very far from a mother who says her mental health was similarly threatened a few minutes later.

That is the wedge. Canada’s slide began with a hard case and a law written around the sympathetic mother. Ours would begin with a hard case and an extension of the immunity we have already granted her. The only thing left to move is the timing.

Look at the absurdity in practice: On December 30 of last year, Alexia Moore was rushed to an emergency room in St. Marys, Georgia in severe pain. Her daughter was delivered alive and lived about an hour before dying of cardiac arrest. Moore was around 24 weeks pregnant, well past Georgia’s six-week limit, and according to the arrest warrant she told the nursing staff, “I know my infant is suffering, because I am the one who did the abortion. I want her to die.”

At first, Kingsland police charged her with murder, after all the drugs she took poisoned her very alive child. But then the rest of the system, wrestling with the hypocrisy, said no. At the bond hearing, the district attorney told the court the murder charge was problematic “on a factual and merit basis,” that his office had never supported bringing it, and that he had no plans to take it to a grand jury. The judge, appointed by Governor Kemp, said, “I have concerns that the state would ever be able to secure a conviction of malice murder.” Then he set her bond for murder at one dollar.

Both of them pointed to the same thing. Georgia case law does not permit charging a mother who ends the life of her own child before birth. Essentially, prosecutors were explaining that Georgia law gives pregnant women immunity from homicide charges so long as they begin the killing process BEFORE birth.

Begging the question: what truly is the difference between the child the day before delivery and the child the day after? We all know the answer. There is not one. The location changes. The child doesn’t.

What Postpartum Support International is trying to do by name-dropping Canada isn’t an accident. They are looking at the United States and seeing an opportunity for consistency. If a mother’s suffering, and other people’s failure to relieve it, can justify ending the obvious life inside her at 39 weeks, why would the same burden and suffering not excuse the same act ten minutes later? They even explicitly tie their appeal back to pregnancy: “a condition related to childbirth.” They see the postpartum year as a continuation of the nine months of pregnancy, in which a woman already enjoys total immunity in our courts, as we’ve just seen. Their ask is for that logic to be extended just a few months longer moving immunity closer toward the crib.

And listen to the words they use to ask for it. Healthcare. Patient. Treatment, not punishment. A condition she suffers from. Support she didn’t get. That is abortion vocabulary, word for word. It does the same job in both places: it turns an act into a condition, and a condition is something that happens to you. Once the killing is a symptom, the mother is a patient, and a patient is not a defendant.

But is this inevitable? No. I believe there is an argument to be made in the other direction, but I fear it requires consistency as well, and I believe it may be one we lack the nerve for. If the child the day after birth deserves the law’s protection, so does the child the day before, and the day before that, all the way back to conception.

The immunity in Georgia is not unique. Nearly every state that has banned abortion since Dobbs exempts mothers. Nearly every one of them reaches the abortionist, which courageous people have worked decades to accomplish. But those same statutes that declare the child in the womb a person, writes out by name the countless women who seek it, arrange it, pay for it, and consent to it — the one without whom none of it happens. Criminalizing an act is an empty gesture if it does not hold accountable all persons who commit it.

The pro-life position is not that women are never victims, or that they do not suffer. Sometimes she is a victim. She is sometimes coerced, deceived, or genuinely ill, and when she is, that deserves recognition and mercy. None of this should be extreme. We all agree women should not fear prosecution for a miscarriage and our laws must address that too. Those who are victims of coercion, deception, or even outright poison to end the life of their child deserve our protection.

But we must never forget that she is not the least powerful person in the story, and she is not the one victimized in every single case. That status belongs to the child. He is the only one who is acted upon one hundred percent of the time. Never the actor, never at fault, least able to speak or flee. And he is the only one who always pays with his life.

The exemption when taken in full view, was written to spare the woman who was pressured or deceived from prosecution but is now functionally shielding the woman who was neither. We instituted rules that makes no distinction, in an area where the cases often could not be more different from each other. A rule that makes no distinctions will always, eventually, shield someone it was never written to protect.

What remains then, once you have protected the miscarrying and the coerced and the genuinely ill, is the woman who was free and fully informed and still chose to end the life of her child. Regarding this person, we should be able to say very plainly, without ending our political careers, that what she did should be a crime. If it is not murder, then the child was not a person.

What should scare us about the postpartum push to extend infanticide immunity into our laws, like we see in Canada, is that this tragedy will be used to pry open a door. They intend to carry this tragic case, and others like it, through it — using the sympathetic circumstances to achieve the same immunity they have already won in the womb.

Justice for these children, and for future generations of children, demands two things of us at once. We treat the genuinely broken mother, with a demonstrated mental illness, as ill — in each individual case, on its own facts. And we absolutely refuse to let those tragedies become the wedge they are meant to be: the one mother no one can bear to convict, used to write the rule for every mother after her, including the ones with no disturbance at all. Canada started with the woman who had genuinely lost her mind and ended with Katrina Effert walking out of court. We started with the woman who was pressured and deceived and ended with a one-dollar bond for a Georgia woman who told a nurse that she had poisoned her newborn.

The enemies of children will not stop at birth. Their logic has no age limit.

Truly protecting the child means embracing courageous consistency and extending our defense of life all the way back to the very first moment. It also means saying a hard truth out loud, that a right to life no one can ever be held accountable for violating is not a right at all.

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ABOUT THE AUTHOR:

Currently, I serve as the Executive Director of Them Before Us, advocating globally for the rights and well-being of children.

I am also the co-founder of All The Good, a leadership organization helping non-profits do all the good they are called to do.

I studied Cross-Cultural Ministry and Humanitarian and Disaster Leadership at Messiah and Wheaton. I read a lot and sleep less than I probably should.