Elizabeth Wilkerson

States Expand Fetal Homicide Laws

A wave of new state fetal homicide laws recognizing a fetus "of any gestational age" as a person and potential crime victim has abortion rights advocates worried the statutes could undermine a woman's right to end her pregnancy.

This year, Alabama, Alaska, Oklahoma, South Carolina and West Virginia passed new fetal homicide statutes making it a separate offense to kill a fetus when a pregnant woman is murdered or assaulted. All five new laws apply to fetuses starting at conception.

Among the 37 states with laws making death of a fetus a separate crime, language giving legal status to a fetus at the earliest stages of pregnancy is proliferating. While often enacted in response to a high-profile crime such as the 2002 Modesto, Calif., murder of Laci Peterson and her unborn child, these laws are increasingly being drawn into the abortion debate.

States are using cookie-cutter language in fetal homicide laws, assigning legal rights to fetuses "at any gestational age," said Sondra Goldschein, state strategies director for the American Civil Liberties Union's Reproductive Freedom Project. A 2004 federal law -- the "Unborn Victims of Violence Act" -- takes the same approach.

Georgia and Nebraska amended existing laws to specify that a fetus of any gestational age is considered a person and a potential victim, according to the Guttmacher Institute, an abortion rights research group. The previous law in Georgia included only viable fetuses, and in Nebraska, no gestational age was specified.

Among states that are part of this trend, Arizona passed a feticide law defining a fetus at any stage of development as a potential crime victim in 2005, and similar statutes were enacted in Kentucky and Mississippi in 2004 and in Colorado and Texas in 2003.

While fetal homicide statutes have been on some state law books since the early 1970s, many did not stipulate when a fetus became a person and potential crime victim, leaving courts to decide whether the death of an early-term fetus constituted a separate crime in maternal murder cases.

Abortion rights advocates argue the new laws are part of a legal strategy to establish that life begins at conception. "It's the elevation of the status of the fetus that is going to erode the right to access abortion," Goldschein said.

Anti-abortion groups promote the laws, saying fetuses should be recognized as living human beings. But there is disagreement about whether the laws are part of a legal strategy to chip away at abortion rights.

"In as many areas as we can, we want to put on the books that the embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection -- even protection that would trump a woman's interest in terminating a pregnancy," Samuel B. Casey, Executive Director of the Christian Legal Society was quoted saying in a 2003 Los Angeles Times article.

But Denise Burke, vice president of the anti-abortion advocacy group Americans United for Life, said the "laws specifically exclude abortion from coverage. They have nothing to do with the woman's decision as to her pregnancy. These [laws] involve cases where women have chosen to have their children and to carry their children to term, and no one else has a right to end that pregnancy against their will."

The link between state fetal homicide laws and the abortion debate has been made in the past.

In a 1984 presidential election debate, Ronald Reagan cited the California feticide law -- passed in the early 1970s -- as support for regarding abortion as murder, asking: "Isn't it strange that that same woman could have taken the life of her unborn child and it was abortion, not murder, but if somebody else does it, that's murder?"

The new fetal homicide laws are among the most prevalent state legislation related to the abortion issue in recent years, according to Kathryn Prael of NARAL Pro-Choice America. In 2005, state lawmakers proposed more of these bills than bills directly restricting abortion, she said.

Though fetal homicide laws have faced legal challenges on the grounds they conflict with Roe v. Wade, the 1973 U.S. Supreme Court ruling legalizing abortion, none has been struck down.

The ACLU, NARAL and other abortion rights groups oppose laws that make fetal death a separate crime, but support stiffer penalties for those convicted of murdering or assaulting pregnant women. According to Goldschein, murder is the No. 1 cause of death in pregnant women.

"If lawmakers really wanted to stop violence against women, they could do other things like putting money into anti-domestic-violence programs and looking at why this is such a problem," she said. "It's no coincidence that the lawmakers introducing feticide bills are the same ones pushing anti-abortion bills," she added.

Still, those in favor of fetal homicide laws say tougher penalties are not enough.

"Most people who murder two people are going to get a longer prison term than those who have murdered one. It sends a strong message to the families, to society and to the offenders that there were two lives lost here," Burke said.

Several states have multiple feticide laws for manslaughter, first- and second-degree murder and recently states have passed laws protecting the fetus in vehicular murder while under the influence of drugs or alcohol.

In all, 37 states have one or more fetal homicide laws, with 24 states defining a fetus as a person and a separate homicide victim. In Maine and 12 other states, the laws apply stiffer punishments for murdering a pregnant woman, but do not make the death of the fetus a separate crime.

While most fetal homicide laws in the last three years have given legal rights to fetuses starting at conception, two states have taken the opposite approach.

Illinois Gov. Rod Blagojevich (D) signed a feticide law last year that specifically stated legal rights were not conferred on a fetus, and Maryland Gov. Robert Ehrlich (R) signed a law that made clear "fetal personhood" was not established. Both laws make the death of only viable fetuses a second homicide in maternal murder cases.


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