Analysis of Fetal Homicide Bills Suggests Ulterior Motives


A slew of state bills to criminalize fetal homicide have at least one thing in common — little mention of the women actually involved in the incidents.

Democratic and Republican lawmakers in Colorado, New Hampshire, Vermont and Wyoming introduced a total of seven bills this legislative year alone.

But for all their assurances that the proposed new laws aim to deliver justice to pregnant women who lose fetuses due to a malicious act by another person, the bill language tells a much different story than the emotional headlines.

Analyzing the text clearly demonstrates that the legislative action will result in a codifying fetal personhood — a long sought after goal of anti-choice forces in a misguided attempt to chip away at women’s rights to terminate a pregnancy, or to use contraception. After first deleting the perfunctory “whereas,” fiscal notes and references to state revised codes, I mashed the exact bill text into Wordle.net, a Web application that creates a visual word cloud. Terms used more often appear larger than less frequently occurring words. The proportions between words describing pregnant women, the publicly expressed aim of the bills’ proponents, and emotionally-laden terms for fetuses is striking.

Personal justice versus public good
The personal stories raised during the bill hearings were heartbreaking. A Colorado woman was hit head-on by a car driven by man fleeing a pursuing state trooper. She gave birth to her 34-week-old fetus which died a few hours later. In Vermont, a mother expecting twins was seriously injured in a car accident when she was hit by another driver under the influence of drugs. She miscarried after being extracted from the car.

The losses were very real to these women and their families. That’s undeniable. But the unblinking eye of the law must consider other factors beyond the anguished cries of vengeance from aggrieved victims. Otherwise our laws would be an unenforceable thicket of constitutional conflicts to promote certain narrow self-interests over broad public benefit without any evidence of deterrence.

To that end, civil liberties and pro-choice groups have opposed the addition of fetal victims to homicide statues on several points.

In Colorado, Kevin Paul, legal counsel for Planned Parenthood of the Rocky Mountains testified at a Colorado Senate hearing in opposition to SB10-113.  Paul told the committee that the bill’s exception for abortion is confounded by defining a fetus as a person.

“This bill essentially runs headlong into Roe v Wade that established our Constitution will not permit the recognition of an unborn entity, or fetus, as a person,” said Paul. “That was argued specifically by the State of Texas, in defense of the abortion control statute that was at issue in Roe v. Wade, and the Supreme Court directly addressed that argument and rejected it. And stated in no uncertain terms that our jurisprudence does not recognize the unborn as a person for the purposes of the 5th and 14th Amendments. Which is what we’re talking about with a homicide statute.”

A related sticking point is that by defining the death of a fetus as a crime, the state will be codifying that life begins before birth. Colorado voters overwhelmingly defeated the first-in-the-nation 2008 personhood ballot measure by a 73-27 margin.

Paul went on to argue that informed consent standards are often litigated in medical malpractice claims. Thus, the language in the bill exempting medical procedures performed with the consent of a pregnant woman or her designee wouldn’t stand up to legal scrutiny.

Moreover, Colorado already has no less than two laws and three sentencing statutes on the books to protect pregnant women from harm, according to Paul.

Those facts get lost in the context of emotionally-charged news reports about car accidents and domestic violence incidents resulting in injured pregnant women.

The National Conference of State Legislatures reports that 38 states have fetal homicide laws — with 21 applying to a fetus at the earliest stages of pregnancy between conception to a specified number of weeks after the first trimester. However, many of those state laws have been used by hospital officials to abridge the rights of pregnant women to determine their own health decisions. Civil libertarians have also expressed concerns about these types of bills. Addie Lord of the ACLU of Colorado said at the committee hearing that her group opposes the expansion of capital crime statutes that may carry death penalty provisions. Allen Gilbert, executive director of the Vermont-ACLU told the Barre-Montpelier Times Argus, “It sounds like what people want to do is make a statement that a fetus has at least some of the rights that a born person has. We think that’s a very slippery slope.”  Apparently, state lawmakers agreed.

All of the fetal homicide bills introduced this year were set aside in the Republican-controlled Wyoming state legislature and by Democratic majorities in Colorado, New Hampshire and Vermont.

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  • jenh

    The value of human life is not subjective.  The hypocrisy here is astounding.  These women lost their children through no “choice” of their own, yet you deny them the right to lawfully charge the person who took their “choice” away.  <i>Oh well… sorry about that, but you know, it was just an insentient parasite after all.  Nothing of any real value lost.</i>

     

    The life in the womb is a LIFE with value equal to that of the mother.  Anyone who destroys life in the womb kills a child.  You oppose Fetal Homicide bills because they shine a spotlight on your hyposcrisy and the utter irrationality of the entire “choice” argument.  Killing a child is no one’s “choice.”   

  • crowepps

    I don’t oppose fetal homicide laws at all. There are a number of states that have laws that make it illegal, through violence or negligence, to terminate a pregenancy without the consent of the woman involved. The difference is that while the woman has every right to see someone punished for doing this, the fetus itself is not a ‘person’ and does not have ‘rights’.

     

    I totally support laws that recognize the WOMAN’S rights to make her own decisions about her own pregnancy, without government interference, whether that is no one interferring with her continuing it or her choosing to end it.

  • texas-aggie

    What I didn’t see in this article is that by defining a fetus as being a person, any woman who during her pregnancy takes a drink, does anything that someone might consider dangerous to the fetus like exercise or not exercise, gains too much weight or not enough, or takes aspirin or other OTC drugs is wide open to charges of murder if she then miscarries.  And miscarriage occurs in between a third and a half of pregnancies depending on the study.  

    If you think that the jails are full now, wait until these laws pass.  

  • texas-aggie

    I forgot to add smoking to the list of things that will be likely to put a woman who miscarries on death row.

  • nbynw

    The problem with feticide laws is that the victim is the woman carrying a wanted pregnancy.  Feticide laws write the woman out of the equation and make any hard done to her a seperate matter.  Yes, we all feel compassion when presented with these heart-breaking stories of women who were victimized twice – once in the bodily harm done to them, and a second time when they lost their baby.  But we are feeling compassion for the WOMAN because it is the WOMAN who is the plaintiff in this case.

     

    I have no problem with laws that punish violent criminals for terminating a woman’s pregnancy while carrying out some violent assault on the woman.  But it is the woman who was wronged; it was the woman whose choice to bear this child was wrongfully abrogated. 

     

    Constitutionally, a fetus has no standing it court.  It is the mother who is the plaintiff for both the bodily harm done to her and for the pregnancy that was wrongfully terminated.