Restructuring the Debate Over Fetal Homicide Laws
Ohio State Law Journal, Vol. 67, No. 4, 2006
63 Pages Posted: 8 Feb 2007 Last revised: 6 Sep 2008
The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and pro-life camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion with murder liability for the third-party killer of a fetus. Pro-choice advocates ought to re-focus the abortion debate on the pregnant woman's defense of her bodily autonomy, rather than on the personhood or non-personhood of the unborn. However, despite their basic compatibility with women's rights, the fetal homicide laws, as drafted, do not offer a satisfactory approach to the problem of pregnancy violence under utilitarian or retributivist rationales. Extremely punitive measures may not be successful in deterring intimate abuse. Even more troubling, the mens rea provisions of many of the statutes fail to ensure fairness to defendants. This Article seeks to spark a dialogue about fetal homicide and, more generally, about violence against pregnant women that breaks free from the polarized rhetoric of the abortion debate.
Keywords: fetal homicide, fetus, abortion, pro-choice, pro-life, anti-abortion, autonomy, personhood, unborn, fairness, utilitarian, retributivist, retribution, deterrence, mens rea, violence, intimate abuse, pregnancy, preganant women, felony murder, due process
JEL Classification: K14, K32, K39, K42
Suggested Citation: Suggested Citation