New York’s Fetal Homicide Law & Legal Abortion – The Common Denominator

April 20, 2009

establishment-clause-separation-church-state1Prof. Howard M. Friedman, at the Religion Clause blog, reported on the case of Sanders v. State of Texas, decided by the Texas state appeals court just over two weeks ago. In that case, Sanders was convicted of killing Angela Alex and her unborn child. He was convicted based on the Texas Penal Code § 1.07 which “prohibits intentionally and knowingly causing the death of any ‘individual’, and defines ‘individual’ as including ‘an unborn child at every stage of gestation from fertilization until birth.'”

Sanders challenged his conviction, arguing that TX’s definition of the killing of a fetus “at every state of gestation” is unconstitutional because it constitutes a violation the establishment clause of the First Amendment as incorporated against the states by the Fourteenth Amendment. However, the Texas appellate court upheld the TX statute because the statute’s “principal or primary effect” was not to advance religion since it had a valid secular purpose in that it “serves the State’s legitimate secular interest in protecting unborn children from the criminal acts of others.”

While some may find this surprising, many relatively pro-choice states have laws that classify the killing of a fetus as homicide or murder. For instance, the New York Penal Code § 125.00 defines homicide generally as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks…” (emphasis added)

Legislation was introduced on January 15, 2009, just three months ago, which would prohibit the killing of a fetus  “at any state of gestation…” (emphasis added)  The new language would be more similar to the Texas statute, classifying the non-consensual killing of a fetus at any state of gestation as homicide. Even if adoped, the new language would not take effect until November 1st of the year it is adopted and would not affect abortions performed consensually at the behest of the mother by a physician.

Only about one in seven New York residents believes that abortion by a physician should be prohibited. Nevertheless, the legislature stated that their intent was to give greater protection to pregnant women who are abused to the extent that the abuser’s attack causes her to lose her fetus.  The permitting of doctor-performed abortions on one hand and the classification of causing the death of a fetus as murder on the other hand may seem inconsistent, but this dichotomy plays itself out in many other states around the country.

California, a strong pro-choice state, defines murder as “the unlawful killing of a human being, or a fetus…” California cases have defined a fetus as such under the statute at “about 7 or 8 weeks” gestation, when its major structures have been outlined. People v. Valdez (App. 3 Dist. 2005).

States’ classification of killing a fetus as murder is inconsistent with the legality of abortion only if the measuring stick one uses is “when life begins.” But if one considers that legislatures are using a different measuring stick, those positions do not seem as inconsistent. The common denominator that runs between these seemingly inconsistent rules is the legislature’s desire to protect the wishes and rights of pregnant women. Whether the mother wishes to terminate her pregnancy or to prosecute an abuser who terminates her pregnancy through the use of violence, in both cases the legislature’s desire is to honor those wishes.

The fact that even the most pro-choice states classify the killing of a fetus as murder in their criminal statutes indicates that such a classification is certainly not intended as an establishment of religious doctrine as state law. Rather, the fact that states consider non-consensual abortion to be murder while consensual abortion is perfectly legal indicates that in this area of the law, the interests, choices, and wishes of pregnant women are the overriding concern, rather than any attempt at a consistent definition of “when life begins.”

Picture courtesy of Dartmouth Independent.

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13 Responses to “New York’s Fetal Homicide Law & Legal Abortion – The Common Denominator”

  1. Kathleen Gallagher Says:

    Could you please provide a citation for the change in New York law?


  2. Sure, 2009 NY AB 5777, 231st legislative session.

  3. Ed Mechmann Says:

    Sorry, but you are incorrect. No such law has passed the New York State Legislature. The bill number you provided has nothing to do with fetal homicide. The actual fetal homicide bill, A.2034, was referred to the Codes Committee on 1/20/2009 and no further action has been taken.


  4. Ah, I just looked at 2009 NY A.B. 2034 again and you are correct. “Proposed Action: Amended” but not yet amended. Thank you.

  5. student Says:

    Why does the prenatal’s mother get an exception to murder laws?


  6. student,

    Because the homicide laws explicitly state that they do not apply in an “abortion” situation. And even if they didn’t the Supreme Court already decided that any state law that makes abortion completely illegal is unconstitutional. You may disagree with that decision, but state legislatures are bound by it unless it is reversed by a subsequent Supreme Court decision or by Constitutional Amendment.

  7. student Says:

    Would the constitution allow the legislature to extend this maternal exception to murder laws past birth to their children?


  8. I doubt it. That would probably be found unconstitutional as violating the 14th Amendment prohibition of state’s violating an individual’s right not to be deprived “of life… without due process of law.”

  9. student Says:

    Is an “individual’s rights” a medical concept?

  10. Norris Hall Says:

    So, a pregnant woman who attempt suicide and fails but kills her fetus in the process could not be tried for involuntary manslaughter because her infant’s death would be classified as “a consensual abortion”?

    Sounds reasonable.

    In the same way a pregnant woman who smokes or drinks couldn’t be accused of child endangerment but perhaps something less severe like “consensual infant abuse”


  11. […] article which originally appeared here was published at GetLegal at the very end of last month: COMMENTARY:  Fetal Homicide Laws & […]


  12. […] Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations […]


  13. […] article which originally appeared here was published at GetLegal at the very end of last month: COMMENTARY: Fetal Homicide Laws & […]


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