New Murder Case Brings California’s Fetal-Homicide Ban into Public Eye
By Clarke Forsythe
Tuesday, October 27th, 2009

The San Francisco Chronicle reported Sunday that a Los Angeles man, Joshua Woodward, has been arrested for the intentional homicide of his unborn child. As public comments on the case posted to the online Chronicle story show, this kind of prosecution provokes public confusion. Here are some answers to questions not addressed in the Chronicle‘s coverage.

Is this a new phenomenon?

No. Fetal homicide or “unborn victims of violence” laws have been enacted in 37 states. And prosecutors actively enforce and use them.

Since the mid-1980s, when we drafted model bills to counter fetal homicide, Americans United for Life has been at the forefront of developing and defending legislation to protect pregnant women and their unborn children from violent crime. We have aided legislators by providing scholarly analyses of such legislation, pointing out that Roe v. Wade doesn’t block state laws protecting unborn victims outside the context of abortion. My 1987 Valparaiso Law Review article on such statutes has been cited by a number of courts in upholding fetal-homicide laws.

Due in part to our efforts, the status of fetal-homicide law has undergone a substantial change between the 1970s and the 1990s. Back in the 1970s, courts often applied Roe to strike down or limit fetal-homicide laws, on the basis that the states couldn’t protect the unborn by law at all. By the 1990s, virtually all state and federal courts recognized that Roe only applied to the abortion context and that fetal-homicide laws were enforceable as long as they weren’t applied to abortion.

How long has California’s law been in effect?

California’s statute was enacted in 1970, before the Supreme Court’s decision in Roe v. Wade in 1973 legalized abortion nationwide. Legislators were provoked by California court’s throwing out a homicide charge for killing an unborn child, relying on the common-law born-alive rule.

What’s the “born-alive rule”?

The born-alive rule, a rule of medical evidence, was first adopted in 1600 due to primitive medical conditions which made it difficult to distinguish between a child killed in the womb and a child stillborn from natural causes. The factual difference was critical, in a time of high infant mortality, because a charge of homicide was a capital crime. The born alive rule meant that a homicide charge could only be brought if the unborn child was “born alive” and died thereafter, so that the evidentiary causes could be more clearly determined.

How can such charges be brought if Roe v. Wade legalized abortion in every state?

Roe only applies to a voluntary abortion that falls within the mother’s “right”; Roe does not apply to an unborn child killed in the non-abortion context and does not protect a third party assailant who kills an unborn child.

At what point in pregnancy can the states protect the unborn child under fetal-homicide laws?

Because Roe does not apply to the involuntary killing of the unborn child, it means that the states can protect the child in the non-abortion context from conception. In fact, 25 of the 37 states with fetal homicide statutes have enacted legal protection from conception. California’s statute has been interpreted by California courts as applying to an unborn child as early as 8-10 weeks gestation. Since investigators in the California case estimate that the unborn child was approximately 13 weeks old, this killing will likely fall within the statute (assuming other facts in the investigation allow prosecutors to otherwise move ahead).

These cases also demonstrate that homicide or fetal-homicide statutes are more significant, as a practical matter, for protecting the unborn child than state “personhood” amendments,” because homicide or fetal homicide statutes actually prohibit the killing itself (personal or private behavior that falls within the criminal law), while state personhood amendments only limit action taken by the three branches of government.

In this post-Roe environment, where abortion for any reason is legal through all nine months of pregnancy, what do fetal-homicide laws ultimately accomplish?

A great deal. First, unlike Roe v. Wade, they require that the law – in this case, homicide law – actually treat the unborn child as a human being strictly speaking. Second, they provoke public education about the schizophrenia between Roe and the effective state enforcement of fetal-homicide laws in 37 states. This is particularly significant in a state like California, which passed its fetal-homicide law in 1970, before Roe and before politics in that state swung radically to the left. Last, and most importantly, they increase legal protection of the unborn child, beyond what it was before Roe. And they are strongly supported by popular opinion.

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