Sunday, September 1, 2013
Andrew S. Murphy has posted A Survey of State Fetal Homicide Laws and Their Potential Applicability to Pregnant Women Who Harm Their Own Fetuses (Indiana Law Journal, Vol. 89, No. 2 (2014, Forthcoming)) on SSRN. Here is the abstract:
Since abortion was legalized in 1973, hundreds of women across the country have been arrested under various statutes for harming their fetuses, even through doctors and public health experts agree that imposing criminal liability on pregnant women who engage in self-destructive behavior actually undermines the goal of protecting fetal life. As more states pass more laws granting more legal protections to fetuses, the potential for conflicts among fetal rights and maternal rights is likely to increase as well. While any subjugation of maternal rights to fetal rights will necessarily involve weighty constitutional and public policy considerations, this Comment focuses primarily on those statutes that could be used to charge pregnant women with various crimes of homicide --- including murder, negligent homicide, and manslaughter --- for killing their own fetuses. This Comment surveys the fetal homicide statutes of the fifty states and finds that many states do not explicitly exempt pregnant women from homicide prosecution for causing the deaths of their own fetuses. In light of recent cases indicating that some prosecutors may be willing to advocate for expansive interpretations of the statutes, this Comment argues that states that have not already done so should consider amending their fetal homicide statutes to add explicit "maternal exceptions" to the statutes as doing so would completely foreclose the possibility that prosecutors might seek to apply the statutes in unintended ways.