The New York Times
In the wake of a savage attack on a pregnant woman and the removal of her fetus, Colorado lawmakers are planning to introduce a bill that would criminalize fetal homicide. If the bill passes, the state would join nearly 40 others that make fetuses a distinct class of victims. (The federal Unborn Victims of Violence Act of 2004 similarly makes it a crime to kill or injure a fetus in certain circumstances.)
This would not be the first time that lawmakers exploited an extraordinary incident of violence against a pregnant woman to promote the rights of fetal victims. In 2009, Indiana, for example,passed a draconian fetal homicide lawafter a horrific shooting of a bank teller who was pregnant with twins.
This type of legislation, however, is not about protecting the rights and well-being of the pregnant woman. Rather the reverse: The risk is that, without statutory reform, the pregnant woman as a category of victim will remain overlooked, while the fetus gets special protection.
Opposition to the creation of fetal victimhood has focused largely on the threat to abortion rights. This is a legitimate concern, but affording victim status to a fetus has implications beyond the erosion of abortion rights. Legally severing a fetus from the pregnant woman has the effect of pitting her interests against the fetus’s.
Over time, this move has increased the state’s power to interfere in the lives of pregnant women. Hence the experience of Alicia Beltran, who, in Wisconsin in 2013, during the second trimester of her pregnancy, was arrested and forced to enter inpatient drug treatment for a past pill addiction.
Granting personhood to fetuses makes women criminally responsible, not only for the life of the fetus, but also for its well-being. This is a particularly high burden. Pregnancy in our society tends to be idealized and women counted on to provide a perfect uterine environment.
Fetal rights can be employed to justify punishing any deviation from this standard.
The criminal law largely fails to account for how the fact of pregnancy defines the harm experienced by women. Instead, Congress and most states have passed feticide laws. (A few states simply apply tougher penalties for existing offenses if the death or injury of a pregnant victim is involved.)
Only a few jurisdictions criminalize acts that cause a pregnant woman to lose her pregnancy. In 2013, Colorado enacted a crime of “unlawful termination of pregnancy” that expressly recognizes the pregnant woman as the victim of violence. Other states should follow suit and reject the wrongheaded logic of maternal-fetal conflict behind the new Colorado proposal.
Picture: Claude Covo-Farchi from Paris, France (Une étoile est née) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)%5D, via Wikimedia Commons