The myth of fetal personhood: reconciling Roe and fetal homicide laws.

• Author: Crist, Juliana Vines

INTRODUCTION

On the cold morning of February 20, 2009, Kenzie Houk, a young mother and bride-to-be, was found dead in her western Pennsylvania farmhouse. (1) She had been shot in the back of the head while she lay sleeping. (2) It took police but a day to find and charge their prime suspect: Jordan Brown, the son of Kenzie's fiancee. (3) Police reported that Jordan allegedly, like any good criminal, shot Kenzie, ditched the shotgun shell, got on the school bus, and went on to another day in fifth grade. (4) Jordan Brown was eleven years old. (5) Kenzie Houk was twenty-six and pregnant with Christopher Houk, who was at eight and a half months gestation. (6)

As the Houk family grieves, the law must grapple with the questions of "Who?" and "How many?" How many "persons" really died that day? How many murders should Jordan Brown have to account for? Currently, Pennsylvania law provides that the "criminal homicide of an unborn child" can be classified as either murder or voluntary manslaughter. (7) Accordingly, Pennsylvania charged Jordan Brown not just with the murder of Kenzie Houk, but with the murder of Christopher Houk as well. (8)

Many, including the Houks, probably laud this double charge. Others, including some abortion-fights activists and organizations, may condemn it. (9) For decades now, states have been proliferating statutes like the one in Pennsylvania--so-called "fetal homicide" statutes. (10) Even the federal government passed such a law, the Unborn Victims of Violence Act of 2004. (11) This act, like its state analogues, makes it a separate crime to kill or injure a "child ... who is in utero." (12) These laws establish one controversial principle: the unprovoked killing of a fetus is murder. This idea stirs up strong reactions from both sides of the abortion debate. For instance, Gloria Feldt, president of the Planned Parenthood Federation of America, bemoaned the Unborn Victims of Violence Act as "creating legal personhood for the fetus." (13) The pro-life movement embraced this legal result. Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, proclaimed, "It is another reminder we are slowly but surely winning the battle ... when it comes to the personhood of unborn human beings." (14)

These hopes and fears are part of a much larger debate about fetal personhood in American society. The law is not clear on exactly who or what counts as a person, (15) but many are already taking sides. Pro-choice advocates worry that, if the law declares the fetus a "person," then the war for reproductive rights will be lost. (16) The pro-life population, on the other hand, welcomes such an interpretation as a means to wage their own war on the legality of abortion. (17)

Fetal murder laws like the one Jordan Brown was charged with are ostensibly about violence against pregnant women. (18) However, in protecting women, these laws classify the killing of a fetus as "murder," and necessarily imply, if they do not directly state, that the fetus is a "person" under the law. Several scholars and politicians worry that feticide laws turn the fetus into an untouchable, and thus an unabortable, entity. (19) They claim that fetal laws necessarily prompt a "reduction of pregnant women's rights." (20) Pro-life scholars have also noted this supposed inconsistency in the law, claiming that, "[t]he discrepancies in the law regarding an unborn fetus's legal status represent an overall disingenuousness, and perhaps even dishonesty." (21) They suggest that "[i]t makes no sense for courts to say an 'abortion' of an unborn child is legal, but the 'wrongful death' of the same child by someone other than the mother is not legal." (22)

This fear of fetal legislation assumes a hypocrisy in the law. Opponents of feticide laws wonder, "How can the U.S. Supreme Court's declaration in Roe that a fetus is not a person ... and the Unborn Victims of Violence Act that makes killing a fetus ... a crime be reconciled?" (23) Few scholars have attempted such a reconciliation. (24) This Note shows, however, that laws surrounding fetal personhood do not challenge abortion rights and argues that so-called "fetal rights" laws will not and do not live up to their hype. Contrary to suggestions by advocates on both sides of the abortion debate, when a state confers "personhood" to an unborn human, it does not sound the death knell for reproductive rights. Personhood as conferred through feticide legislation is not the same as natural personhood, and does not garner the protection of the Fourteenth Amendment. Moreover, it is entirely logical for a state to punish the same act (termination of a pregnancy) differently in different circumstances. Abortion by the mother is simply not the same as an unprovoked assault on the fetus by a third party.

This Note begins in Part I by examining the present state of fetal treatment under the law. Currently, fetuses are not persons for the purposes of abortion jurisprudence, but many state laws nevertheless still refer to fetuses as "persons."

Part II illustrates how these seemingly contradictory notions can be reconciled. First, theories of personhood, federalism, and linguistics are examined to demonstrate that constitutional fetal personhood (25) does not exist. Second, Part II discusses more specific ways in which fetal statutes do not conflict with Roe or abortion rights. Namely, fetal laws recognize state interest, not fetal interest. State protection does not imply personhood; states can and do protect non-persons quite often. Feticide laws also do not pit mother against state, as abortion laws do. Rather, the laws logically distinguish between the rights of a pregnant woman and the non-rights of third-party attackers.

Finally, this Note concludes by arguing that feticide laws actually promote reproductive autonomy. The right to carry a child to term is an oft-forgotten corollary of the right to abortion. These laws protect women in that sacred interest.

1. CURRENT FETAL "RIGHTS"

   1. Criminal Law

      American law has had a troubled relationship with the fetus and abortion. Legislation regarding abortion began appearing in the early-nineteenth century, growing largely out of English common law. (26) At that time, states severely punished abortions performed after the quickening (27) of a fetus, but were more lenient when abortion occurred pre-quickening. (28) As the century wore on, states began eliminating the quickening distinction and increasing punishments for all abortions. (29) By the 1950s, a majority of jurisdictions had completely banned all non-therapeutic abortions. (30) This, of course, all changed with the Supreme Court's decision in Roe v. Wade. (31)

      In Roe, the Supreme Court recognized that the decision to reproduce is a protected privacy interest. (32) The case legalized abortion in America, although not without restriction. (33) Part of the Court's reasoning was based on the finding that the fetus was not a "person" for the purposes of the Fourteenth Amendment, and was therefore not guaranteed a right to life. (34) Roe also held that a state has important interests; namely, promotion of potential life. (35) Thus, a state could, if it so chose, prohibit abortion past the point of fetal viability, (36) except where necessary to save the life or health of the mother. (37) Although Roe has been modified somewhat by subsequent Supreme Court cases, its essential holding remains intact. (38)

      The destruction of a fetus by a third-party aggressor (39) has followed a different trajectory. Outside of the abortion context, the law has historically recognized penalties for both homicide and wrongful death of a fetus. Traditionally, criminal common law began by following what is known as the born-alive rule. (40) Under this rule as it was applied by the states, murder charges could be brought against one who caused injury to a fetus in the womb, but only if the fetus survived birth and later died because of the inflicted injuries. (41) William Blackstone, in his Commentaries on the Laws of England, expressed this long-standing rule as follows: "To kill a child in it's [sic] mother's womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb it seems, by the better opinion, to be murder." (42) The rationale was that murder referred only to the killing of a person, and if a fetus died in utero, it was not yet a person and therefore could not be a victim of murder. (43) Many post-Roe cases held to this rule. (44) For example, the Illinois Supreme Court, in People v. Greer, (45) refused to find that the in-utero killing of a full-term fetus was murder. The Greer defendant beat his pregnant girlfriend with his fists and a broomstick, killing her and causing her unborn child to die in utero. (46) The defendant's girlfriend was eight-and-one-half months pregnant. (47) Although the fetus died as a result of the beating, the court reversed the defendant's murder conviction on the grounds that "taking the life of a fetus is not murder ... unless the fetus is born alive and subsequently expires as a result of the injuries inflicted." (48)

      The born-alive rule is still good law in some states. (49) However, many states have moved away from the common law and have begun specifically recognizing fetal murder as a crime even if the fetus dies before birth. (50) States have done away with the born-alive rule in two key ways: either through the legislatures or the courts.

      First, many states have enacted laws that specifically apply to the injury or killing of a fetus. Some do this by inserting terms like "fetus" or "unborn child" into their existing murder statutes. California, for example, added the term "fetus" to its murder statute, so that it now reads: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (51) Similarly, Ohio's murder statute...