Pro-choice groups agonize over fetal murder law

When a NOW leader said charging Scott Peterson for the murder of his unborn son threatened abortion rights, even some feminists were horrified. But that's been pro-choice orthodoxy on fetal-rights laws -- until now.

Published April 24, 2003 7:50PM (EDT)

When Mavra Start, head of the Morris County, N.J., chapter of the National Organization for Women (NOW), told a local newspaper that charging Scott Peterson with double murder in the death of his wife Laci and unborn son Conner could aid the antiabortion movement, she was blindsided by fierce criticism -- some of which came from feminists. In less than 24 hours, Start backed off from her comments, saying that she was merely "thinking out loud."

The conflict raised by the double murder charges against is a painful one, made worse by the obvious suffering of the young woman's family. But the quiet controversy around a California law that recognizes a fetus as a full-fledged murder victim raises a fundamental question that threatens to split the feminist movement as it battles to maintain a woman's legal right to abortion: Do laws that criminalize fetal harm encroach on the rights of the mother?

Antiabortion advocates, emboldened by the appointments of staunch supporters to influential posts within the Bush administration, have been seen to gain some important ground through laws that protect fetal rights. One frequently cited measure, initiated by Secretary of Health and Human Services Tommy Thompson, extends prenatal health insurance to fetuses, rather than their mothers. Recent moves to ban late-term abortion -- dubbed partial-birth abortion by the right -- also focus on fetal, not maternal, welfare, say choice advocates. Fetal harm laws also have been used to penalize women for using drugs or drinking during pregnancy. And laws that provide for double murder charges in the homicide of a pregnant woman are similarly threatening, some reproductive rights advocates say. By systematically strengthening the legal rights of the fetus, a woman's right to choose is irrevocably weakened.

In fact, many abortion rights groups, feminist organizations and domestic violence associations opposed the California law that makes it a crime to kill a fetus, a law that's on the books in some form in 22 other states. But the apparent united front among these activists masks internal dissent about what positions these groups should take on laws that increase penalties for attacks on pregnant women. And the question is asked by both sides: Can pro-choice activists support laws that demand higher penalties for killing a fetus at the same time they call for a woman's right to terminate a pregnancy?

The debate is critically important now in light of startling new data revealing that homicide is the number one cause of death among pregnant women in America.

"It's a tough issue," says Frances Olsen, a UCLA law professor and specialist in feminist legal theory. "My view is pro-choice and pro-protecting fetuses that expectant mothers have created. I think there should be a larger penalty for attacks on pregnant women -- especially when the pregnancy may be the reason for the attack.

"But it's a dilemma for activists," she acknowledges. "On the one hand, fetal homicide laws make a lot of sense. On the other hand, they're being promoted too much by people who don't have women's interests at heart. There's always a problem of laws being misused. But it's outrageous that we can't try to protect something so important to women because it can be used against it."

Women's rights activists have been reluctant to speak out against state fetal harm laws because of concern for Laci Peterson's family. By all accounts, Laci, who was eight months pregnant when she disappeared from her home last Christmas Eve, desperately wanted the baby boy she was carrying, and her parents are devastated by her death and the loss of their grandson. The body of the fetus -- at first believed by police to be an infant -- was found last week on the shore of San Francisco Bay about a mile from Laci's body. Investigators believe the fetus was expelled some time after Laci's death.

In the wake of the controversy over Stark's comments, NOW's national office is declining to discuss the issue "out of respect for Laci Peterson's family," said spokeswoman Rebecca Farmer. But several representatives of various organizations said privately that despite violence to pregnant women, fetal harm laws present too "slippery a slope," in the words of one, in the struggle to protect abortion rights.

Rebecca Whiteman, a senior health member of the Family Violence Prevention Fund in San Francisco, is particularly torn by the Peterson case. Her organization is one of those leading the battle to better protect pregnant women; it also publicly advocates choice. "We're terribly sad about what happened to Laci Peterson," says Whiteman. "This case rattles our society to the very core about how we think we support and nurture pregnant women, and we hope that it leads to increased medical screening of pregnant women for any signs of intimate partner abuse and help prevent similar tragedies in the future."

Nevertheless, she said, the Family Violence Prevention Fund does not support fetal harm laws as the way to end the violence.

Dr. Jeffrey Edelson, a University of Minnesota professor and expert on domestic violence, has called such fetal laws "cynical." He believes if women are adequately protected by society, so too will their fetuses.

Not all state laws concerning fetal harm are created the same, however. Section 187 of the California Penal Code makes it a crime to murder "any person or fetus." The law specifically excludes legal abortions, or acts "solicited, aided, abetted, or consented to by the mother of the fetus." The age of a fetus is not specified in the law, though the state Supreme Court has ruled that murder charges can only apply to fetuses older than 7 weeks.

Scott Peterson was arraigned Monday in Stanislaus County Criminal Court on a double murder charge under Section 187, specifically that he "did willfully, unlawfully, feloniously and with malice aforethought murder Laci Peterson" and "Baby Conner Peterson, a fetus."

It's the second murder charge, concerning "Baby Conner Peterson," that could land Scott on death row if he's convicted. A second murder would be the "special circumstance" required under California law for the death penalty.

UCLA professor Robert Goldstein, a constitutional law and abortion rights expert, sees no contradiction between the California law and abortion rights, and he believes the law would withstand a constitutional challenge.

"There's no problem if the state chooses to protect women from violence of others who seek to interfere with their reproductive autonomy," he says. "In whatever guise these laws are put forward -- as claiming to protect the fetus -- they serve to protect the reproductive autonomy of the legal person involved from private violence."

The California law is particularly protected from a constitutional challenge, according to Golden Gate University Law School dean Peter Keane, because it only involves the "killing of a fetus against the will of the mother and doesn't interfere with a woman's right to autonomous control over her own body."

"I don't think either faction of the abortion debate gets any play with this particular law," he added. "The exemption takes it out of that category entirely."

Though the California law hasn't been tested in the U.S. Supreme Court, murder of a fetus has been used successfully in three other capital murder convictions in the state since 1988 -- and withstood appellate challenges, according to a spokesman for California Attorney General Bill Lockyer.

Similar laws in other states have been used to penalize pregnant women for behavior believed to be potentially damaging to a fetus. In 1998, Wisconsin made a fundamental change in its child protection laws to allow judges to confine pregnant women who chronically abuse drugs and alcohol. South Dakota has enacted similar legislation. And in South Carolina, a woman who admitted using cocaine during her pregnancy was convicted of homicide after her baby was stillborn. The conviction was upheld this year by the state Supreme Court. Similar murder convictions have been upheld in other states.

The debate over the legitimacy of a double murder charge in the Peterson case will not end when the jury announces its verdict. But it is possible that the case, and the image of Laci Peterson's parents mourning their daughter and grandson, will force some compromise among the ranks of pro-choice activists. For those who advocate choice, there are many who believe that Laci Peterson made one -- she chose to have a baby -- and that her choice, as much as another woman's choice to get an abortion, should be enshrined, and protected, by the law. Others, though deeply affected by the Petersons' tragedy, are unmoved.

"Unfortunately," said one activist, who wanted to remain anonymous, "we don't have the luxury of judging this law on its merits. We have to worry about the political battle down the road."

By Mary Papenfuss

Mary Papenfuss is a writer and editor in Paris.

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