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Fetal homicide
laws revisited
By Rob Jennings, from the Daily Record on the
Web, April 27, 2003
Scott Peterson is the most prominent defendant
ever charged under a fetal homicide statute, but there have been other
high-profile prosecutions, even in cases where the pregnant woman was not
killed.
In Pennsylvania last month, Corinne Wilcott was
convicted of murder after kicking a woman in the stomach during a fight. The
woman survived, but her 15-week-old fetus died.
Two years ago in California, prosecutors charged
Nikolay Soltys -- accused of killing his wife and five family members -- with an
additional murder count because his wife had been three months pregnant. Soltys
committed suicide in prison before his case went to trial.
Peterson, 30, of Modesto, Calif., is accused of
murdering his wife, Laci, and their unborn son. Laci Peterson was more than
eight months pregnant when she disappeared Dec. 24. Both bodies were recovered
two weeks ago.
The National Organization for Women's Morris
County chapter president, Mavra Stark, stirred an international controversy last
weekend when she opposed the double-murder charge against Peterson on the
grounds that it could strengthen the pro-life lobby.
Stark later said that she was just thinking out
loud, but NOW refused to state a position on fetal homicide statutes, which long
have been opposed by pro-choice organizations even though they exempt legal
abortions.
Some pro-lifers are hoping that attention given
to the Peterson case, combined with a backlash against Stark's comments, will
lead to additional state fetal homicide laws and boost federal legislation.
"You know how they say, 'The definition of a
gaffe is speaking the truth' -- well, Mavra inadvertently said what everyone in
the pro-choice movement always believed -- that it isn't a baby until it takes
the first breath," said pro-life state Assemblyman Michael Patrick Carroll,
R-Morris Township.
Laurie Lowenstein of Lincroft, executive
director of New Jersey Right to Choose, countered that pro-lifers were not being
honest about their underlying motive "to establish the fetus as a citizen …
(and) then make abortion illegal."
"That's the long-range plan," Lowenstein said.
But numerous court rulings have found no conflict between fetal homicide
statutes and the Supreme Court's 1973 ruling in Roe v. Wade, which legalized
abortion nationwide.
"There's a difference between a fetus and a
child. That's where the pro-choice and anti-choice communities diverge,"
Lowenstein added.
"A fetal homicide law is saying, 'Well, we're
sorry about the woman, but it's the fetus we're really interested in.'"
Federal crimes
On Friday, one week after Peterson's arrest,
President Bush urged passage of the Unborn Victims of Violence Act, which would
permit a separate criminal charge if an unborn child is injured or killed during
the commission of certain federal crimes.
State fetal homicide laws vary greatly. Denise
Burke, staff counsel for Americans United For Life, a pro-life group based in
Chicago, said Pennsylvania is one of 14 states that makes it a crime to
intentionally kill a fetus at any stage of development.
At least a dozen other states permit murder or
manslaughter prosecutions, depending on the age of the fetus, Burke said.
Burke said fetal homicide legislation often was
sparked by high-profile cases where a defendant could not be charged in
connection with the death of an unborn child. Such a case "galvanizes
attention," Burke said.
California, for example, adopted its fetal
homicide law in 1970, one year after Robert Keeler brutally assaulted his
ex-wife, who was eight months pregnant. Teresa Keeler lived, but her baby was
stillborn.
Now in California, murder charges may be filed
if the fetus is at least seven weeks old. Eight states permit charges if the
fetus has demonstrated movement in the womb, Burke said. Four states cite
viability of the fetus as the standard. New Jersey does not have a fetal
homicide statute.
Supports the principle
Prominent defense attorney Ron Kuby of New York
City, who is pro-choice, said he supports the principle behind fetal homicide
laws.
"I suppose, as a matter of consistency, one
should adopt the Roe v. Wade trimester approach," Kuby said, in terms of
establishing an across-the-board benchmark for prosecution.
Kuby said there is no inconsistency between the
laws and a woman's right to choose an abortion.
"All of these fetal homicide statutes exclude …
abortion, because the Supreme Court has held that at least in the first two
trimesters of pregnancy, a woman's right to control her body trumps or is
superior to any right the state has to protect unborn life," Kuby said.
"Once you endorse that reasoning," Kuby said,
"you are forced to take the next step, which is when a woman wants to bear a
child … the same rights that shield her from the state ought logically to extend
to her right to have the child."
Defendants typically challenge the
constitutionality of fetal homicide statutes, Burke said.
In many cases, Burke said, "the defense will
argue that it somehow conflicts with the legalization of abortion," and violates
equal-protection rights by prosecuting a third party for killing a fetus that
legally could have been aborted by its mother.
"But that's been shot down on the basis that a
woman has a right, under Roe, to terminate her pregnancy," Burke said.
Considered human
Wilcott's attorney unsuccessfully argued in
court that the state couldn't charge her with murder if it didn't consider
fetuses to be human beings. Women in Pennsylvania and elsewhere may obtain legal
abortions through the first six months of pregnancy. A judge upheld the murder
charge.
Kuby, though, questioned fetal homicide laws
that permit murder prosecutions from the earliest stages of development.
"You have one in three pregnancies that end in
miscarriage through the natural order of things," Kuby said. "It's one thing to
talk about Laci Peterson, and an 8-month-old, viable baby. It's another to talk
about the murder of a two-day-old" fetus.
It is too early to predict whether the recent
burst of publicity will spur forward bills that have languished for years in
state legislatures. Alabama is weighing two competing bills. One would permit
prosecutions for the intentional killing of a fetus from the moment of
conception. The other would establish fetal viability as the test.
A proposed Colorado law would permit a murder
prosecution provided that the defendant knew the woman was pregnant, Burke said.
In North Carolina, a bill introduced by state
Rep. Edgar Starnes would criminalize the murder of an unborn child -- defined in
his proposal as "an individual member of the species Homo sapiens, at any stage
of development in utero, who was alive at the time of the homicidal act and died
as a result thereof whether before, during or after birth."
Laws can coexist
While claiming that fetal homicide statutes can
coexist with Roe, Burke acknowledged that the dichotomy is unsettling.
"It creates an inherent contradiction, where
you're saying that in one instance, you're a person and you're protected, and in
the other, you're not," Burke said.
"Certainly a legal argument could be made that
we're schizophrenic and need to decide one way or the other."
For that reason, pro-choice activists such as
Lowenstein remain opposed to fetal homicide statutes.
"Roe already protects viable fetuses. If you're
trying to do something else, you're rethinking the question," Lowenstein said.
But even Lowenstein said she was not troubled by
the double-murder charge against Peterson, citing the advanced stage of the
pregnancy.
On at least one point, both sides agree.
"Laci Peterson," Burke said, "is a very unique
case."
Rob Jennings can be reached at
rjenning@gannett.com or (973) 989-0652.
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