In Some States, Fetuses Are Deemed More Important Than Women

By Jeanne Flavin, NYU Press. Posted January 31, 2009.

 Excerpted from Our Bodies, Or Crimes: The Policing of Women’s Reproduction in America by Jeanne Flavin. (c) 2009 NYU Press. Reproduced by permission of the publisher.

On Christmas Eve of 2002, Laci Peterson disappeared from her home in Modesto, California. She was almost eight months pregnant with a son that she and her husband had planned to name Conner. A jury later concluded that her husband, Scott Peterson, had killed her. California's definition of murder includes the unlawful killing of a fetus with malice aforethought, provided that the fetus has passed the embryonic stage (roughly between six and eight weeks). Scott Peterson was convicted of first-degree murder for killing Laci and second-degree murder for killing the fetus. He was sentenced to death.

In 2004, President George W. Bush enacted Laci and Conner's Law, as the federal Unborn Victims of Violence Act of 2004 (UVVA) eventually became known. Under the terms of the UVVA, if someone harms a pregnant woman and causes the death of her fetus while violating any one of 68 existing federal criminal laws, he or she can be charged for causing the mother's harm or death and face a second charge for killing the unborn victim. Very few violent crimes are prosecuted in federal courts. The UVVA applies only to violent crimes committed in places like a military base, a post office, or a Native American reservation; its potential to have a broad impact on domestic violence, then, is similarly restricted.

In addition to the federal UVVA, at least 36 states permit homicide charges to be filed in the deaths of fetuses. Fetal homicide laws were designed to be applied in cases where a pregnant woman is injured if her pregnancy is ended or harmed by an assault, a drunk driving accident, or other criminal act. Some laws require that the accused person act with malicious foresight, while others allow charges of involuntary manslaughter when there is no intent to kill.

State laws also differ in whether or not they, like the UVVA, extend the legal definition person and human being to mean a fetus. The UVVA and most state fetal homicide laws treat the fetus as an independent second victim that has legal rights distinct from the pregnant woman harmed by the criminal act: that is, when a pregnant woman is murdered or injured, two victims are claimed -- the woman and her fetus -- not one. (Here I refer to this category of laws as "fetus-centered homicide laws.") Some of these laws consider the fetus a separate victim or a person only after certain stages of development or after a particular gestational age. Laws in at least 15 states apply to a fetus at any stage of development, starting at conception. To date, fetal homicide laws have withstood challenges on the basis of their constitutionality.

Opposing the legal recognition of a fetus as a second person may seem callous, especially when one considers the death of a wanted unborn baby due to violence late in the pregnancy. But while we can understand why people want prosecution to reflect the unique harm of an assault on a pregnant woman, this can be accomplished without recognizing the fetus as an entity separate from the mother who bears it. In over a dozen states, lawmakers have adopted the enhanced penalty approach, applying stiffer penalties for murdering a pregnant women, instead of recognizing the death of the fetus as a separate crime.

In other states, however, the need for political compromise prevented full consideration of this approach. In Alaska, for example, an early draft of a fetal homicide bill lacked a provision stipulating that the law should not be construed to permit the prosecution of a woman with respect to her fetus. Without this provision, for instance, a pregnant woman could be prosecuted for not leaving her abusive husband. After a battle to get the provision into the bill, a compromise was eventually reached. The provision was included, but it came at the expense of serious consideration of enhanced penalties, rather than recognizing a second victim.

Fetus-Centered Laws as a Response to Domestic Violence

Lawmakers and politicians drafted and passed the Unborn Victims of Violence Act and fetus-centered homicide laws under the auspices of taking violence against women (and to a lesser extent, drunk driving) more seriously. But, there are reasons to question this claim. First, congressional and legislative testimony suggests that the attention lawmakers and advocates have heaped on murdered fetuses has not been accompanied by in- depth consideration of the causes, characteristics, and consequences of domestic violence against women more generally or by affirmative steps to deal with the problem. For instance, the Republican majority failed on multiple occasions to fully fund the Violence Against Women Act. As Rep. Jerrold Nadler (NY) pointed out in a hearing on the UVVA before the House of Representatives:

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