Feticide as Capital Crime

Sun Jan 28 18:19:22 PST 2007

	(a)  Would this extend even to very late-term pregnancies?  Say
a man deliberately decides to murder his ex-lover, and to kill the
8-month-old fetus (say, her new lover's or husband's) she is carrying.
Given how physically similar the fetus is to a born baby -- in fact,
babies are routinely born at an earlier gestational age -- it would seem
to me odd to insist that the Constitution bars treating the murder of
the fetus the same as the murder of a baby who was born a month
premature.

	(b)  The life/health of the mother exception doesn't strike me
as terribly relevant here; it's a close analog of self-defense (at least
when it involves the threat of death or serious bodily injury to the
woman), which lets people kill born humans as well as post-viability
fetuses.  Most self-defense, of course, involves self-defense against
the morally culpable, but that's not inherently so; the authorities I've
seen report that this so long as someone is threatening my life, I may
kill him, even if he's insane or mistaken.  (Such assertions are based
on general principles rather than on specific cases, given that these
cases are rare and prosecutions in such cases are practically
nonexistent; but the authorities I've seen are unanimous on this, and
they seem theoretically right.)  So the mother's right to defend herself
against threats from the fetus doesn't affect the question whether a
third party may deliberately kill a fetus who is no threat to him.

	(c)  If one believes that abortion is justifiable on the "it's
my body, and I can do what I please with it" theory, then why is there a
glaring moral and logical inconsistency in letting a woman abort a fetus
and yet treat another's killing of the fetus as murder (setting aside
the situation where the other is acting at her behest, which my
potentially raise different questions)?  Judith Jarvis Thompson's
violinist example, for instance, supports the view that even if the
fetus is a person (as is the violinist), the woman is entitled to abort
it.  Likewise with the argument that all abortions are justifiable as a
form of self-defense, or that equal protection principles require that
the law not impose on women a burden of providing life-saving care that
is supposedly not generally imposed on men (that's not a view that I
endorse, since parents of both sexes are generally required to provide
life-saving care to their children, but it is a view that some have
urged).

	Of course, if one believes that abortion is justifiable only on
the "fetuses aren't persons, because if they were, abortion would be
murder [absent special circumstances such as threat to the mother]"
theory, then there is an inconsistency between allowing abortion (again,
setting aside threat to the mother cases) but treating the killing of
fetuses as any sort of homicide.  But is that really the only theory
that's potentially sensible?

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Caitlin Borgmann
> Sent: Sunday, January 28, 2007 5:59 PM
> To: conlawprof at lists.ucla.edu
> Cc: reprorightsprofs at mail.law.cuny.edu
> Subject: Feticide as Capital Crime
> 
> Eugene,
> 
> This is a very interesting question.  There certainly is a 
> trend toward states punishing third-party killing of fetuses 
> as homicide (e.g., the Laci Peterson case). 
>  However, these law coexist uneasily with the constitutional 
> protection of abortion.  The Supreme Court has left it open 
> for states to protect fetuses as persons, so long as it 
> exempts legal abortion, but the moral and logical 
> inconsistencies in viewing the fetus as a person in one 
> context and not the other are glaring.
> 
> I would think there would be a strong argument that the 
> punishment violates the 8th Am. under Coker.  It seems 
> grossly disproportionate for at least 2 reasons: First, the 
> conduct of the woman is exempted.  In this case, Flores's 
> girlfriend apparently testified that she told Flores she 
> wanted to end the pregnancy and asked him to step on her 
> stomach.  If that were true, it seems especially anomalous 
> that he should be eligible for the death penalty while her 
> conduct is not even criminal.  I'm not sure it matters what 
> stage of gestation is at issue, because abortions of even 
> viable fetuses are permitted where the woman's health is at 
> risk (undermining the notion that society truly views the 
> fetus as a person -- even if some states recognize it as one 
> in some contexts). 
>  Of course, if a third party assaults a pregnant woman 
> carrying a wanted pregnancy and kills her viable fetus, he is 
> guilty of a heinous crime.  But as far as I know there is no 
> history of imposing the death penalty for feticide at any 
> stage of pregnancy, which I would think would be an 
> independent argument against the death penalty even in such a case.
> 
> On Friday I blogged about Texas's protection of fetuses in a 
> different context: whether abortion providers should receive 
> the death penalty for violating the state's parental consent law:
> http://lawprofessors.typepad.com/reproductive_rights/2007/01/g
> ee_thanks.html
> 
> On Monday, I will be posting on the Flores case:
> http://lawprofessors.typepad.com/reproductive_rights/
> 
> 
> Best regards,
> Caitlin
> 
> Caitlin Borgmann
> Assistant Professor
> CUNY School of Law
> 65-21 Main St.
> Flushing, NY 11367
> 718-340-4503
> borgmann at mail.law.cuny.edu
> 
> 
> > 
> > Message: 3
> > Date: Fri, 26 Jan 2007 15:16:50 -0800
> >From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > Subject: Murder of unborn children as capital crime?
> > To: <conlawprof at lists.ucla.edu>
> > Message-ID:
> > 	<9160246DA68F8E49BCE01AFE96156C54027598D7 at UCLAWEVS.lawnet.lcl>
> > Content-Type: text/plain;	charset="us-ascii"
> > 
> > 	Flores v. State, 2007 WL 177578 (Tex. App. Jan. 24), 
> upholds a  life 
> >sentence for a father's capital murder of his unborn twins.  ("In a  
> >hand-written statement, Flores stated he and E.B. had argued 
> that night  
> >and he struck her.  Further, Flores admitted he had in the 
> seven days  
> >prior to her delivery stepped on her abdomen on two different 
> >occasions.
> >Flores was charged with capital murder of the two unborn
> >children.")
> > 
> > 	Flores argued that the statute "violates the 
> Establishment  Clause of 
> >the United States Constitution because defining life as  
> beginning 'at 
> >conception is religious, not medical or legal'"; that was  properly 
> >rejected under Harris v. McRae.  But what if he had been  
> sentenced to 
> >death?  Would Coker preclude that?  (Would it matter how  old the 
> >fetuses were, and were would the constitutional line be drawn on
> > that?)
> > 
> > 	Eugene
> > 
> > 
> > End of Conlawprof Digest, Vol 39, Issue 26
> > ******************************************
> 
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