Sunday, January 28, 2007
My Jan. 26 post, Gee, thanks!, focused on whether abortion providers in Texas should get the death penalty for violating the state's parental consent law. Continuing on the theme of fetal rights in Texas, see the Volokh Conspiracy post, Murder of Unborn Children as Capital Crime? (Jan. 26), about Flores v. State, in which a Texas appeals court upheld a life sentence for a man who caused the death of his girlfriend's unborn twins. Flores had admitted that he stepped on his girlfriend's stomach twice in the week before the fetuses were stillborn. Like the issue raised in my post, this case highlights the difficulties that arise when state laws define a fetus as a person. Can a law make a third party's killing of a fetus capital murder, while exempting abortion (or other conduct by the pregnant woman)? (Note: It's important to remember that at least as to viable fetuses exemptions for the pregnant woman herself only reach so far: Roe v. Wade does not protect a woman's right to abort a viable fetus unless her own life or health is at risk.)
The difficulty can be avoided, however, if laws instead punish third-party harm to a pregnant woman. In most feticide cases (including the famous Laci Peterson case), the woman is carrying a wanted pregnancy. Some of the comments to Volokh's post defend exempting abortion from feticide laws based on the woman's right to make autonomous decisions about her body. A law that punishes "harm to a pregnant woman" as a distinct crime, with a punishment exceeding that for the mere assault of the woman, is consistent with this view. Pregnant women in wanted pregnancies suffer a loss greater than the physical harm caused to their own bodies. This approach also avoids the apparent inconsistency in treating fetuses as persons in some contexts but not in others.
The Flores case is especially tricky because Flores's girlfriend apparently testified that she told Flores she wanted to end the pregnancy and asked him to step on her stomach. If this is true, does it make sense to sentence Flores to life in prison while exempting his girlfriend? It's hard to know, though, from the opinion's brief description what was really going on in this case. Flores admitted that the two had argued and that he had struck her. Moreover, his girlfriend not only had "massive bruises" on her abdomen, but her arms and face were bruised. Was she trying to protect her boyfriend from a possible death sentence by claiming that she asked him to help end her pregnancy? Regardless, unless and until we are prepared to treat fetuses as persons in all contexts -- and the general public clearly is not, as evidenced by the failed South Dakota abortion ban -- the far better course is to avoid legislation that defines fetuses as persons, and instead focuses on harm caused to pregnant women. (For an example of this kind of law, see N.C. Rev. Stat. Ann. 14-18.2.)