Teresa was eight months’ pregnant when her ex-husband, Robert Keeler, found her driving along a California road. He forced her to the side of the road with his car and pulled open the door of her car. When he saw that she was visibly pregnant, and not by him, he became violent. He yelled at her that he would “stomp it out of you.” He struck her in the face and thrust his knee into her abdomen repeatedly, rendering her unconscious. By the time Teresa got medical help, her baby was dead, stillborn owing to skull fractures.
Keeler was prosecuted in California for crimes against Teresa and for the homicide of her unborn child. But the California supreme court threw out the homicide charge, citing a 17th-century English common law that no one could be prosecuted for the homicide of an unborn child unless the child was “born alive” and died thereafter from injuries suffered in the womb. In other words, if a child was stillborn, the law would not recognize a homicide, no matter how clear the evidence. Legislative leaders moved immediately to change the law, and California in 1970 passed a statute making it one of the first states to repeal the “born alive” rule.
Since then, numerous other states have followed California. Last month, Illinois marked 30 years of protecting unborn children as human beings through homicide law. While some, following the recent Supreme Court case Whole Woman’s Health v. Hellerstedt, have tried to argue that pro-life laws are a thing of the past, fetal homicide laws in fact are proof that reasonable limits are both popular and possible.
Today, virtually 40 states have similar laws, often called “fetal homicide” or “unborn victims of violence” laws, and 30 of those 40 states, including Illinois, extend protection for the unborn child from conception. Killing even the earliest developing human beings (except through abortion and reproductive technology) is treated as a homicide in Illinois law, and has been since the 1980s.
The Illinois law and others like it are supported by public opinion. A congressional report cited a 2004 poll that found that 84 percent of Americans believed that prosecutors should be able to bring a homicide charge against a third-party perpetrator (someone other than the mother) for killing a child in the womb. These laws are used by prosecutors in Illinois and other states.
One legal commentator in 2013 noted that the laws are important for protecting pregnant women who want to carry their pregnancy to term but are threatened by uncommitted men who want them to have abortions. In a sense, the laws protect her “reproductive autonomy” to deliver the child she wants.
These laws are needed, because these stories of violent assaults against pregnant women are all too common. In August, a Memphis man, Juan Lee, 24, was arrested for beating his girlfriend when she refused to have an abortion. As Fox13 in Memphis reported, “police said he then hit her, strangled her and kicked her in the head so hard she had a large laceration on her temple.”
Fetal-protection statutes are needed to update the law in light of modern medicine, particularly ultrasound and our enhanced ability to detect fetal life and the cause of death of unborn children.
This has become somewhat of a hidden epidemic in America, as some uncommitted men absorb and act on the logic of “abortion rights”: They’ve been excluded from the abortion decision by the U.S. Supreme Court, they have no right to be involved or even get notice, and they have no obligations . . . unless the woman wants to give birth. No responsibility unless the child survives. When she refuses an abortion, she becomes particularly vulnerable, and violence often erupts. The Memphis incident is only the latest in a long, sorry line of cases.
That 17th-century born-alive rule was a rule of evidence in a time of primitive medicine. Stillbirths could be the result of natural causes, and without live birth, the evidence was unclear; in its original context, the rule served to protect mothers, in cases of stillbirth, from wrongful claims of infanticide. Today, such statutes are needed to update the law in light of modern medicine, particularly ultrasound and our enhanced ability to detect fetal life and the cause of death of unborn children.
These laws, properly drafted, have not been used to prosecute pregnant women. There’s no record of any such prosecution under the carefully drafted law in Illinois. Rather, the laws almost invariably exclude the pregnant woman expressly from the scope of the statute.
A recent case from Indiana, involving a late-term self-abortion, shows that other laws are sometimes used to prosecute women, but the courts have been careful to curtail their use in prosecuting women unless a state legislature has made clear, in the text, that that was its purpose. And virtually no legislature has done so.
The old trope is that the Supreme Court’s decision in Roe v. Wade was necessary to protect women from state-coerced abortions. The reality is quite the opposite. Roe v. Wade made pregnant women more vulnerable to violence, by treating the unborn child as an absolute zero, a blob of tissue — as the rash of violence and coerced abortions over the years shows. Under fetal-homicide laws, any potential coerced abortion — by a state official or a violent boyfriend — is a homicide, and women have greater protection with these laws in place.