Colorado Legislation Strikes Right Balance to Protect Pregnant Women and Their Unborn Children


Colorado Legislation Strikes Right Balance to Protect Pregnant Women and Their Unborn Children

Apr 30, 2015 4 min read

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

Following the horrific attack on a 7-month pregnant woman in Longmont, Colo., The New York Times ran an opinion piece expressing opposition to a proposed fetal homicide bill, explaining that it would end up dramatically and unjustly restricting the freedom of pregnant women.

Dynel Lane, the ex-nurse’s aide who cut an unborn child from her mother’s womb, was not charged with murder, but rather with unlawful termination of a pregnancy, as well as assault and attempted murder of the mother. The punishment for first-degree murder is life imprisonment or death in Colorado, but unlawful termination of a pregnancy is punishable by a maximum of eight years in prison.

Colorado S.B. 268approved by the Colorado Senate Judiciary Committee late last week—aims to provide justice for infants like the one killed in the Longmont assault. The bill defines “person” as “a human being and includes an unborn child at every stage of gestation from conception until live birth” for homicide and assault offenses. The bill’s primary sponsor, Colorado Senate President Bill Cadman, said it would “extend the right of protection and justice to unborn children in Colorado.” Without this bill, people such as Lane can be charged only for unlawful termination, which stops short of acknowledging the true nature of the lost pregnancy, the killing of an unborn child.

Laws regarding fetal homicide have been debated throughout our nation’s history and in the English common law that influenced the development of American law. In his “Commentaries on the Laws of England,” William Blackstone said, if “anyone beat [a pregnant woman], whereby the child dieth in her body … it remains a very heinous misdemeanor.”

Centuries earlier, another influential legal scholar, Henry de Bracton, wrote in “On the Laws and Customs of England,” “If one strikes a pregnant woman … if the foetus be already formed or quickened, and especially if it be quickened, he commits homicide.” Both views informed American’s legal system, as some states protected only those children born alive, but others drew the line at the “quickening,” when a pregnant woman could feel the child moving.

And, as science progressed and scientists noted that life began earlier than previously believed, some states added protection under homicide and assault laws at “viability,” when the fetus is capable of living outside the womb. Medical technology and treatment have advanced so far that babies born as early as 26 weeks have an 80 percent chance of surviving and thriving.

S.B. 268 bill has come under fire from opponents who think it could restrict women’s rights. Deborah Tuerkheimer, in her op-ed “How to Not Protect Pregnant Women,” claims legal protections for unborn children would produce unjust, dystopian and just plain scary results. She cites cases where women were prosecuted for “using drugs, refusing a cesarean section, having sex against a doctor’s recommendation and attempting suicide.”

The study Tuerkheimer cites shows just 354 cases from 1973 to 2005 where a pregnant woman was prosecuted for harming her unborn or newborn child (and the majority involved use of illegal drugs). She makes the far-fetched argument that if there aren’t sufficient protections for pregnant mothers, it could lead to governmental monitoring of weight and exercise during pregnancy and prohibiting pregnant women from working.

The problem with her claims? S.B. 268 clearly states it would not apply to “acts committed by the mother of the unborn child” or “medical procedures performed by a physician or other licensed medical profession.” The bill provides recognition and justice to unborn children who died because of an act of murder, manslaughter, negligent homicide, vehicular homicide or assault. S.B. 268 would not have an effect on abortion, which is legal under Roe v. Wade.

Moreover, 38 states have fetal homicide laws. States such as California and Ohio have added “fetus” or “unborn child” to their existing murder statutes, and other states, including Georgia, have enacted separate laws dealing with crimes against the unborn. They may differ regarding precisely when legal protection attaches during pregnancy, but many of these laws are similar to Colorado’s proposal in that they recognize fetal homicide throughout a pregnancy.

The claim people are looking to deprive pregnant women of their rights and then lock them up is false. Furthermore, the pro-life community aims to facilitate a compassionate environment for women and does not intend to unnecessarily penalize women. Marjorie Dannenfelser, president of the Susan B. Anthony List, maintains that “compassion … will drive the law. The focus of such laws is on protection, not punishment.”

It is important to look out for pregnant women, to make sure they aren’t criminalized for making honest mistakes in their pregnancy. But it also is important to recognize the life of unborn children. Fortunately, S.B. 268 strikes a fair balance, acknowledging that in extreme cases where violence against a woman results in the loss of a child, the loss of that child’s life deserves recognition and respect.

This piece originally appeared in The Daily Signal