Pro-life advocates often scoff at fetal homicide laws, arguing that they represent just how schizophrenic our legal system is when it comes to the unborn. On the one hand our legal system says the unborn are not persons, and therefore they can be killed per the mother’s request. On the other hand, fetal homicide laws treat the unborn as a person, allowing for an individual who kills an unborn child without the mother’s consent to be prosecuted for murder. The legal distinction is based almost entirely on the mother’s will. If she wants the child, it is illegal for someone else to kill it. If she does not want the child, it is legal for someone else to kill it.
While I am pro-life, I want to argue that the current law is consistent in its treatment of abortion and fetal homicide. Just because the unborn are not deemed persons with legal status—and can be killed at the mother’s request—does not mean the state could or should allow anyone to kill an unborn child without consequence. If the unborn is not a person, then it is property[1], and the same laws we apply to property must be applied to the unborn as well.
As a general rule, people have a right to do what they wish with their personal property. I own a collection of books. Because they are my property, I am free to do what I want with them. I could choose to keep them, or burn them. The same is not true of any one else, however. If someone took my books from my home without my permission and burned them in my front yard, he would be prosecuted because he destroyed property that did not belong to him. But if I gave him my books, or if I asked him to burn my books, then he is free to burn them without consequence.
Similarly, the mother is free to do what she wants with her property: the unborn child. She can choose to keep it, or kill it. If she gives permission to a third party to kill her unborn baby, then she has consented to have her property destroyed, and no one can be prosecuted for having done so. If, however, someone kills her unborn baby without her permission, they have destroyed property that did not belong to them and should be prosecuted. Given the view that the unborn are property rather than persons, it makes sense to have laws protecting a woman’s right to kill her “property,” as well as fetal homicide laws to prosecute those who rob a woman of her property without her consent.
Perhaps the reason pro-lifers see the law as being inconsistent is because they think fetal homicide laws are meant to protect the rights of the unborn. This is not true. Fetal homicide laws are mean to protect the rights of the mother. Both abortion law and fetal homicide laws treat the unborn as property, and exist to protect the right of mothers to do what they wish with their unborn child. The problem is not that these laws are in conflict with one another, but that they disregard the personhood of the unborn.
Perhaps a true example of schizophrenia in the law regarding the unborn is abortion law and inheritance law. An unborn child can be considered a person with legal standing in inheritance cases. If the unborn is mere property, how can it have legal status and even be the beneficiary of property/finances? That seems a bit inconsistent. Perhaps Paco can add more details, other examples, or correct any deficiencies in my argument.
[1]In this case, it is considered the mother’s property since it bears her genetic material and is housed in her womb.
Thinking to Believe 
June 21, 2011 at 6:55 am
It’s not schizo. Roe doesn’t say that the unborn aren’t people, just that the mother has a right to an abortion. A state can make it murder to kill the unborn, but it cannot enforce the law against the mother if the murder is committed by way of abortion. Murder charges be brought against a father, though.
A fetus isn’t a person for federal purposes, but a state can define a fetus or embryo as a person.
Homicide is a crime, not a tort. It’s not about compensating somebody for a property loss. Crimes are comitted against the public, not an individual.
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June 21, 2011 at 9:54 am
Jason,
Basing the argument on the fact the unborn is the property of the mother creates a different inconsistency. Although property can be destroyed, it cannot be murdered. The penalty for destroying property – vandalism – is not 25 to life. So the fact that these laws are called fetal homicide laws indicates that the fetus is being treated as a person and not property. Therein lies the inconsistency between fetal homicide and abortion. If the fetal homicide laws were truly treating the unborn as property, then the punishment for these crimes should be consistent with vandalism and not murder as is the current punishments.
However, there is a consistency, as you argue, in that whether or not a crime has been committed is still based on the perspective of the mother. If the mother does not want the child (abortion) it is not considered murder, but if the mother wants the child (fetal homicide) it is considered murder.
Arthur, I just want to point out that yes crimes are considered to be committed against the public, but they are concomitantly committed against individuals. That is why we have victims of crime. Also, one also commits a crime, and not just a tort, when destroying property, as stated above, it is vandalism.
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June 25, 2011 at 8:09 pm
Arthur,
It seems we agree on the major point that the two laws are not contradictory.
I’m not so sure I would agree with your statement that Roe doesn’t say the unborn aren’t persons. The Court wrote, “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” They went on to argue that the word “person” in the Constitution only applies post-natally, so one cannot argue that the unborn are considered persons according to the Constitution. But it’s important to note that in their own opinion, if biology could establish that the unborn are persons, then the Court would have to recognize them as persons, and they would be covered by the 14th amendment. While they did not explicitly declare the unborn to be non-persons, by their own logic they are at least implicitly affirming this. I say this because according to them, if the unborn are persons they cannot be killed by abortion. And yet the court concluded that they can be killed by abortion. So either the court has concluded that the unborn are not persons, or they have concluded that since the personhood of the unborn cannot be ascertained with any degree of certainty, we are not justified in prohibiting abortion.
Jason
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June 25, 2011 at 8:09 pm
Paco,
Good point. They are treating the unborn as a person, as evidenced by both the label of the crime (fetal homicide) as well as the punishment. In that regard, they are being inconsistent. I think the larger point still stands, however: Just because the government allows the mother to kill her own child without legal consequence does not mean it has to allow anyone else to do the same.
This brings up another example of a truly inconsistent law related to abortion. If the mother wants to kill her baby, she can do so by the hand of a 3rd party so long as that 3rd party is a licensed abortion doctor. If her boyfriend tries to kill the baby for her (whether it be through abortion-inducing drugs or by kicking her in her stomach), the boyfriend can be prosecuted! Granted, I think it is stupid to seek an abortion from an untrained non-professional, but it seems inconsistent to call one successful attempt at killing an unborn baby “murder,” and the other “abortion.”
Scott Klusendorf likes to highlight the inconsistency even further with the following scenario. A woman is on her way to the abortion clinic to abort her baby. On the way she gets hit by another car, and the unborn child dies as a result. The person driving the other car was the abortion doctor who was driving to the office to perform her abortion! The abortion doctor could be prosecuted for fetal homicide, and yet, if the mother and the doctor both arrived safely at the clinic just 10 minutes later, and the abortion was carried out, he would have been innocent. Same doctor. Same dead baby. One is murder, one is not. Strange indeed!
Jason
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June 26, 2011 at 6:21 pm
Jason,
I believe the unborn can be persons for state purposes, but not persons for federal constitututional purposes. I believe that’s what’s going on here.
Also, the Roe analysis isn’t addressing whether the unborn are people, just whether they are people within the meaning of the constitution. The point was made more explicitly in Dred Scott.
Arthur
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June 27, 2011 at 10:30 am
Arthur,
I disagree. The Court did address the question of whether or not the word “person” in the Constitution applies both pre- and post-natally, but they were very explicit that if it could be proven biologically that the unborn were persons, then they would be protected by the 14th amendment. They even allowed testimony to that end. What they did, however, is say that the data is not determinative, and thus they could not conclude that the unborn are persons.
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July 2, 2014 at 5:02 pm
So if the fetus is property then the father is entitled to half and thus has a legal claim as to whether or not the fetus can be destroyed. See there lies the problem with your whole argument because the abortion laws don’t actually treat the fetus as property otherwise they would recognize the father’s rights to the property which in almost all cases they don’t.
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June 19, 2016 at 12:15 pm
A key element absent in the discussions I see above is the age of the fetus. To speak generally with the single term “fetus” is to omit the critical qualifier of gestational age.
Clearly, a fetal homicide law is just that, a law that defines a criminal homicide. The title of the law, the fact that these laws typically specify the fetus explicitly as a person or a child for the purpose of the law, as well as the punishments commensurate with a criminal homicide and the arguments surrounding its enactment all very clearly indicate these are not property crimes, rather, crimes of criminal homicide against a person.
A mother does not have special rights to kill her child and be exempted from prosecution for that criminal homicide. There is no such thing as maternal consent that absolves the killer from prosecution.
To be consistent a state’s fetal homicide law must coincide with its abortion laws. A criminal homicide might be committed by gunshot, knife stabbing, scissors cutting, injection of poison, striking with a blunt instrument, asphyxiation, starvation, dehydration, or exposure to hypothermia.
Irrespective of the means that was employed to end the life of the victim the central fact of the crime is that the life of the victim was extinguished by the perpetrator.
If a particular fetus on a particular day is a person under the law then the elective and intentional abortion of that person is murder by any reasonable understanding of the word murder.
It is the height of hypocrisy and injustice to legally permit the intentional premeditated homicide of a legal person by one method yet punish it severely if the homicide is committed by some other method.
To end this standing injustice in our legal system each state must bring its abortion and fetal homicide laws into agreement based on the gestational age of the fetus and the usual degrees of criminal homicide determined by level of intent and related factors.
If a particular fetus on a particular day is considered viable then under Roe v. Wade and Planned Parenthood v. Casey the state may define that fetus as a person and proscribe abortion of him or her.
In that case abortion of that particular fetus on that particular day is capital murder, a premeditated taking of human life, a first degree homicide unless the abortion was medically necessary for the mother.
However, if a particular fetus on a particular day is not viable, then under present SCOTUS rulings states may not proscribe abortion and application of a fetal homicide law to that particular fetus, if it were killed by some other method, is the height of absurdity, inconsistency, irrationality, and injustice.
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November 14, 2016 at 11:42 pm
So after the child is born, the mother has the right to kill it because it is her property following your logic. Sure…
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January 4, 2017 at 1:50 pm
If a person kills a pregnant mother, in many states it would be considered a double homicide. A homicide is defined as a person intentionally and unlawfully killing another person. Person being the key word. As in human being. I think this is the inconsistency. The fetal rights laws do not define a fetus as mother’s property, but rather a human being.
I appreciate the article. It was an interesting read. It is a deep and complex issue.
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January 4, 2017 at 2:42 pm
Sarah:
The inconsistency is because the commission of a fetus is piggy backed on only 68 particular crimes that result in the death of the mother and thence the subsequent death of the fetus. If the death takes place outside the 68 criminal acts, it does not apply according to my understanding of the following:
In 2004, Congress enacted, and President Bush signed, the Unborn Victims of Violence Act, which recognizes the “child in utero” as a legal victim if he or she is injured or killed during the commission of any of 68 existing federal crimes of violence. These crimes include some acts that are federal crimes no matter where they occur (e.g., certain acts of terrorism), crimes in federal jurisdictions, crimes within the military system, crimes involving certain federal officials, and other special cases. The law defines “child in utero” as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”
Apparently being based only on 68 particular criminal acts, there are exemptions.
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January 4, 2017 at 2:43 pm
Of the 38 states that recognize fetal homicide, approximately two-thirds apply the principle throughout the period of pre-natal development, while one-third establish protection at some later stage, which varies from state to state. For example, California treats the killing of a fetus as homicide, but does not treat the killing of an embryo (prior to approximately eight weeks) as homicide, by construction of the California Supreme Court. Some other states do not consider the killing of a fetus to be homicide until the fetus has reached quickening or viability.
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January 29, 2017 at 7:21 am
But you cannot be charged with murder for the destruction of property. You are fined and possibly imprisoned, but never charged with murder.
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January 29, 2017 at 9:47 am
Bella:
Maybe the treatment of fetal homicide is not to discourage fetal homicide; and I’m guessing here, but maybe the real reason for having it on the books is only because it enables the prosecution to add an extra sentence in the penalty phase of the perpetrator. Sentencing the perpetrator to two life sentences instead of one life sentence seems like a distinction without a difference as far as the purpose of punishment the sentence supposedly addresses: deterrence, incapacitation, rehabilitation, retribution, restitution.
Of these five parts of punishment, I believe the only aspect for having the fetal homicide law on the book is for retribution; that is, retribution prevents crime by giving victims or society a feeling of avengement, the “eye for an eye” concept and possibly a general deterrent to frighten society with the sentencing of the individual defendant
The court doesn’t seem to make a big deal about the fetal homicide except to use it as an add-on to a sentence but as I said one life sentence, two or five life sentences is a really a distinction without a difference. Without court passion, the compassion of society itself is enough to trigger widespread empathy.
Case in point: Sondra Goldschein of the American Civil Liberties Union’s Reproductive Freedom Project, cited a North Carolina provision that adds to the length of a prison sentence for assault if it causes a miscarriage.
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July 11, 2017 at 5:27 pm
35/36 UNFORTUNATE years too late I can only express the grief & loss thAt still remains in the decay of my BROKEN AGED BODY with the November 27, 1981 or 1982. Murder of my 6th child. I NEVER read that article about female possession & ownership of all parts of my body GIVING me 100% choices to let my baby live. Confirmed murder did not make the forced medication I TOOK while adamantly REFUSING all MEDICINES. Not I did not take aspirin even. To accuse me of neglecting my 5 CHILDREN & home became the MALES rants. I had no idea I was pregnant. But that I FELT tired & overworked w. A new infant that I noted. Pregnancy meant I vomited & I NEVER did. LYNN STANLEY ANDERSON had used the drug cocktails in 1970 to not only murder his girlfriend’s baby but in his hate sterilized a 20 yr old. At the same time he impregnated a married woman who had his girl CHILD. That was the horror epic called MARRIAGE I ran raped & BROKEN from after he had Dr HAROLD YOUNG sterilize me so he could murder his own child. Said unable to carry or near babbies I HAD 5. In addition to WOMAN bashing ANDERSON lived to try murder. My never-ending terrors still exist. He successfully murdered so he sussessfully STOLE my inheritance. Utah lends a lot of help to LDS PRIESTHOOD holders. His LIES were his empath called good STORIES. I live arranged almost homeless cockroaches are the same legal VERMIN as keep you CRIMES secret when you donate to the MORMAN CHURCH. He used my inheritance to purchase CUSTODY in 1990 only O asked for a declaration of ASSETS. Off but not funny I owned that CHILD LYNN ANDERSON murdered.
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May 30, 2018 at 7:25 am
So if the baby is only the mother’s property only, why all of a sudden when born, is the father required to care and/or pay custody for it??
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May 30, 2018 at 7:48 am
Jimmy:
Think of it this way, the baby is using the womb of the mother and the mother is paying the baby’s rent for the compartment, providing all the baby’s needs, food and sustenance.
When baby is delivered into a new compartment/apartment, full responsibility for baby’s expenses then shifts from totally on the Mom because she alone had access to the baby and its needs. Father is rent free.
Into the new housing arrangement, the father shares at this point because baby depends on family instead of just Mom, theoretically.
The father has or should have full access to the baby unless he abdicates.
Like birds of the feather, father bird can now share in providing food and sustenance to the new occupant.
From the Womb to the Room:
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May 30, 2018 at 10:26 pm
Jimmy, that’s the point of my post. The law is inconsistent and unfair. It gives mothers all of the power – not only over life and death, but also over finances.
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May 31, 2018 at 8:42 am
The law like morality has no objective grounds for its existence or application; it is all subjective whether by individual decree or majority decree of; say, 9 to 8 split for example where the 8 do not count. It’s similar to democratic elections which cannot be but unfair. The bible declares that the Law came from God but how is that possible when you cannot be justified by the law? Because the Law actually came from Man and the Man it came from declared man’s law to be from God. The assertion as I’ve said before is not enough to support the notion that there is any entity outside man’s declaratory concept.
In a country that has a three party system and the ratio of the electorate vote in an election is distributed as 40% per cent, 30% and 30 %, the 40% party wins! Yet the majority of 60% of the electorate did not vote for the 40% winner but are rendered impotent; on the other hand the count goes toward who you voted for rather than who you didn’t vote for, so the 60%; i.e., 30%, 30% split, representing 60% of the electorate are left out of the governing group.
Now, the majority in government can declare the just way of governance, or application of the law but how can we achieve a 100% system where everybody agrees? You cannot find that in religious of non religious institutions; well, why not if it is grounded in an objective entity? Because the only objective entity we know of is the subjectivity within humanity.
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June 30, 2018 at 12:02 pm
Using a mental disorder as an insult is very insensitive and offensive to people who struggle with it. I have met quite a few people with Schizophrenia and they were just as intelligent as I was and polite, despite what they were dealing with.
I don’t know if anyone is reading this, but I will say this as many times as I need to: Mental illness is not a joke. Mental illness is not an insult. Mental illness does not make anyone less.
It really irks me to see people carelessly use a disorder as an insult, especially because I have one and I have friends who struggle with disorders as well.
Please think about what you say before you put it out there, because words can hurt.
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