Law: Fetal homicide laws often attack abortion
I have previously considered national legislation that designated the death of a fetus during a crime against a pregnant woman homicide. The federal Unborn Victims of Violence Act was enacted last year. A recent effort by a state legislator to pass a fetal homicide statute in Oregon led me to take a closer look at the movement to create such legislation in the states. Oregon Speaker of the House Karen Minnis (R-Wood Village, District 49) has introduced HB2020, which purports to protect the lives of fetuses injured or killed during attacks on pregnant women.
HB2020:
Expands criminal homicide to include causing death of unborn
child. Provides exception for lawful abortions and acts committed
by pregnant woman.
Creates crime of assault of unborn child. Punishes by maximum
of 10 years' imprisonment, $250,000 fine, or both.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.005 is amended to read:
163.005. { + (1) As used in this section:
(a) 'Criminal homicide' is murder, manslaughter or criminally
negligent homicide.
(b) 'Human being' means:
(A) A person who has been born and was alive at the time of the
criminal act; and
(B) An unborn child.
(c) 'Unborn child' means a member of the species Homo sapiens
at any stage of development while carried in the womb. + }
Not all fetal homicide laws are unconstitutional. The key determinants are whether they acknowledge the legality of abortion and apply to only viable fetuses. Constitutional laws about injury to fetuses during crimes use viability -- the ability of the fetus to survive independent of the mother -- as determining whether a fetus can be considered a victim independently. Under Roe v. Wade, 410 US 113 (1973), a fetus has rights the state protects at the point of viability, usually about six months of gestation. Minnis' bill does not recognize that distinction, defining "unborn child" as any conception. For example, if a woman was found to be three weeks pregnant during an autopsy, under Minnis' bill the assailant would be subject to a second charge of homicide. It is unclear whether Minnis is serious about passing a bill that is unconstitutional under both state and federal law. She could consider the proposal a sop to the pro-life movement, part of her Right Wing constituency.
It is interesting to compare "unborn child" statutes to laws that do not clash with state and federal law. In Commonwealth v. Morris (2004), the Kentucky Supreme Court held that a viable fetus can be the subject of seperate charges if killed.
We hold that felonious killing of a viable fetus can be prosecuted as a homicide under Chapter 507 of our Penal Code.
The Kentucky statute, Chapter 507A, specifically exempts aborted fetuses from the legislation. The Kentucky statutes would pass constitutional scrutiny.
But, what of the motivation to pass legislation protecting fetuses in general? Research shows that the most common cause of death of a pregnant woman is homicide. I will speculate that the phenomenon has something to do with being vulnerable. People who appear defenseless have a heightened risk of being victimized. Women who are pregnant appear to be vulnerable -- to strangers if the pregnancy is visible, to those who know of the pregnancy prior to visibility. (Predictably, assaults and murders of pregnant women are often domestic violence.) So, there is, arguably, a reason to pass fetal homicide laws that doesn't have anything to do with abortion. Viable fetuses may need to be protected because of the heightened risk of abuse pregnant women are subject to. However, when the legislation begins by defining the fetus as being protected from conception, it is an attempt to evade both state and federal laws guaranteeing the right to abortion. I believe "unborn child" laws are unconstitutional and will fail when subjected to judicial scrutiny. Minnis' bill may be even more short-lived if her fellow legislators treat it as an anti-abortion maneuver, not a serious effort to protect viable fetuses from harm. It may not surmount the barriers to passage.
Reasonably related
• Oregon currently doesn't have a fetal homicide statute. Washington's fetal homicide law applies to viable fetuses. Where does your state stand? Read more about the trend at About.com's Women's Issues forum.
• The National Right to Life site describes "unborn child" fetal homicide statutes in 18 states. Another 12 states have statutes that include some language that purports to protect non-viable fetuses.
