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.
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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.