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:

It appears that many of the Members who have signed on to this bill are the same ones who voted to divert funds from protecting women from violence to protecting stock dividends from taxation.

Second, it is unclear how fetus-centered homicide laws can be expected to deter violence against pregnant women. What deters people from crime is not well understood. Even serious sanctions such as life imprisonment and capital punishment have not been found to be effective in deterring people from violent crime. And in the present case, fetus-centered homicide laws offer no additional deterrent effect. One cannot hurt a fetus without in some way hurting a pregnant woman, and it is already against the law to hurt or kill a woman.

Rather, I would argue that one effect of these laws is to push the pregnant woman herself into the background. By separating the damage done to a woman's unborn child, these laws detract from the harm inflicted against the woman herself. For instance, when Kansas HB 2300 languished in the state senate judiciary committee, a state senator commented, "Now the bill is dead -- and so is Chelsea's baby." One feels the need to remind the senator that Chelsea is dead as well. Fetus-centered homicide laws contribute to the perception that the harm is defined by the harm to the fetus rather than to the woman. In doing so, they contribute to the devaluation of women that makes violence against women a problem in the first place. Fetal homicide laws imply that violence against a pregnant woman is, by definition, 'worse' than violence against a woman who is not pregnant. Claims of fetal rights relegate the women who are being hit, demeaned, and violated to the status of baby carrier rather than human beings.

If fetus-centered homicide laws which treat the fetus as a second victim do not ameliorate the problem of domestic violence (and may contribute to it), and if it is possible for legislators to acknowledge the distinct nature of an assault or murder of a pregnant woman without making killing a fetus a second, separate offense, why have such laws been passed with such zeal in the first place?

Anti-abortion activists deny that fetal protectionist homicide laws were created to erode abortion rights or to re-criminalize abortion. But these denials should not be accepted at face value. The National Right to Life Committee maintains a website on unborn victims of violence that tracks changes in fetal homicide laws but dedicates no space on it to violence against women. In the three-page UVVA, the terms 'child', 'unborn child,' or 'unborn children' are used no less than 28 times, consistent with the conservative, anti-abortion rights orientation of many of its drafters.

Elsewhere, champions of fetus-centered laws have co-opted the language of the women's movement to garner support for their position and arguably mask their intent. The executive director of the Christian Legal Society, Samuel B. Casey, was quoted in the Washington Times defending the UVVA claiming that "if there ever was a bill to protect a woman's right to choose, it is this bill that seeks to deter violence against or at least provide justice to the pregnant woman who is choosing life for her unborn child only to see her choice deprived by a crime of violence against her and/or her child." As the reader may recall from the opening of this chapter, this is the same man who two years earlier had told the Los Angeles Times he intended to put as many laws as possible on the books recognizing that the embryo is a person in an effort to trump a woman's right to terminate her pregnancy.

The Unborn Victims of Violence Act explicitly states that nothing in the   act "shall be construed to permit the prosecution ... of any woman with respect to her unborn child." But state statutes have used nearly identical language (often, as noted, only after hard-fought battles to get the language included in the first place) and then have gone on to prosecute pregnant women for their drug use in what has been called a "legislative bait and switch." Fetal protection laws not only represent a backdoor to abolishing abortion but also they leave open the possibility that the laws used to prosecute those who assault pregnant women may be directed against pregnant women themselves. In Missouri, for example, the state argued that the exception articulated in their fetus-centered homicide statute applied only to a woman who indirectly harmed her unborn child, not to a woman whose drug use was claimed to have directly endangered the child.

Claims of the need for fetal protection have been and will continue to be used to control and punish pregnant women, not protect them. Fetus-centered homicide laws are, at root, fetal protection laws. They simply are not designed to protect and support the woman who carries the fetus. I return to Marguerite Driessen for help in explaining the nature of what is at stake. She writes:

That the mother and her unborn child are inseparably connected, that what affects the former affects the latter, and that access to the latter is accomplished only through the former, is obvious. These facts have led some to conclude that this creates an utter dependency of the unborn child upon its mother such that the mother has a duty to do all in her power to nourish and protect it. These same facts have led others to conclude that the unborn child is not a severable entity at all, but rather is a part of the mother, and thus she can have no externally imposed obligations to the unborn child.

Arrests and prosecutions of women for continuing their pregnancy to term despite their use of illicit drugs, court orders, and civil commitments are examples of state-sanctioned efforts to externally impose such obligations. These efforts are rooted in our beliefs about who is fit to reproduce and what a 'good mother' looks like (see chapters 7 and 8). These measures, purportedly undertaken in the interest of fetal and child health, result in 'the normalization or standardization of motherhood. Only those who meet the state-enforced standard are permitted to reproduce without state interference.'

These cases also serve a larger political purpose by distracting attention from significant social problems such as our lack of universal health care, the dearth of policies to support pregnant and parenting women, an absence of social supports for children, and the overall failure of the drug war. Instead, we focus our attention on "bad" pregnant women who are poor and who use drugs. We expect them to provide their fetuses with the health care and safety that they themselves have not been guaranteed.

The state cannot act this way without at least tacit public support. In general, the public seems increasingly, if grudgingly, willing to consider illicit drug use a public health or medical problem. Public animosity toward poor women who use illicit drugs and become pregnant and give birth, however, persists. The hostility has been fueled by the antiabortion movement's claims of fetal rights, combined with false and exaggerated claims about the effects of prenatal exposure to cocaine on pregnancy outcomes, fetal and infant health, and early childhood development.

Click on the link for a copy of Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America.

(c) 2009 NYU Press

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