Is killing a fetus murder?

A man is charged with murder for giving his pregnant girlfriend an abortion pill and telling her it's an antibiotic

By Mary Elizabeth Williams

Published May 17, 2013 8:11PM (EDT)

John Andrew Welden (Pinellas County Sheriff's Office)
John Andrew Welden (Pinellas County Sheriff's Office)

John Andrew Welden is charged with the murder of a person who was never born.

As Tampa's WFTS-TV news reports, Welden is facing first-degree murder charges for allegedly giving his pregnant girlfriend Remee Lee an abortion pill and telling her it was an antibiotic. Welden worked in his father's Florida clinic, a "specialty infertility practice." When Lee began bleeding and experiencing cramps, she went to her local hospital, where doctors informed her the container labeled as amoxicillin was in fact the labor-inducing Cytotec. The fetus died in utero. "I was never going to do anything but go full term with it," she told reporters this week. "And he didn’t want me to." It's an appalling tale, which will once again force us to ponder what constitutes a human life -- and when one has taken it.

Very different fetal-homicide laws are on the books in roughly 80 percent of American states. In Arizona, for example, the charge can apply toward "any stage of development" for a fetus, while Arkansas limits it to an "unborn child of 12 weeks or more gestation." South Dakota stipulates the accused must have known, "or reasonably should have known, that a woman bearing an unborn child was pregnant."

In Welden's case, he's being charged under the Protection of Unborn Children Act. His state has tough laws for killing the unborn that also include DUI manslaughter, vehicular homicide and willful killing. In Ohio, where kidnapping suspect Ariel Castro will stand trial, he faces possible charges of aggravated murder. Castro is accused of allegedly beating one of his reported victims until she miscarried the pregnancies she endured in captivity. Cuyahoga County prosecutor Timothy McGinty has said he will pursue "each act of aggravated murder" -- and a conviction could lead to the death penalty.

And in Philadelphia, of course, Kermit Gosnell was convicted of three counts of first-degree murder for killing three infants -- by severing their spinal cords -- who were born live during the late-term abortions he provided. Pennsylvania law has a whole category of offenses, including first- and second-degree murder, for any unborn child "from fertilization until live birth." What distinguishes the Gosnell case -- and has often been lost in all the shouting about it -- was that the murder charges were for babies, not fetuses. Yet the issue of what constitutes the taking a life is not always an easy one to discuss or decide.

As much as we need the law to be clear, the reality of life and death is often far more ambiguous. As Jon Hurdle and Trip Gabriel noted this week in the New York Times, much of the furor over cases like Gosnell's is the question of "why a procedure done to a living baby outside the womb is murder, but destroying a fetus of similar gestation before delivery can be legal." Remee Lee, meanwhile, was six weeks and five days pregnant when she lost her baby. Should taking a life that wouldn't have been viable outside the womb carry the same consequences as killing an adult? Would the alleged crime be different if she'd been three months pregnant? Six months? Nine?

I believe that human life begins at conception. I believe that if you force a woman, either by violence or deception, to lose a fetus, you have taken a life. But I also shudder at the prospect of the anti-choice lobby exploiting revolting crimes to prevent women from access to their constitutional right to abortion. We have spent the last several years watching it happen, as abortion opponents have tried to leverage fetal-protection laws to chip away at choice. That's why we need to continue to be vigilant in articulating the difference between a choice a woman makes and an act of violence against her body and her fetus, an act that robs her of that very freedom she is entitled to. We must be clear that being pro-choice is not tantamount to condoning repulsive, criminal behavior. Remee Lee told reporters this week that she's grieving because she "dreams of becoming a mom." And this, she says, "was my chance."

Mary Elizabeth Williams

Mary Elizabeth Williams is a senior writer for Salon and author of "A Series of Catastrophes & Miracles."

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Abortion Ariel Castro John Anthony Welden Kermit Gosnell True Crime