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BY Ellen Rossini
DALLAS — The rights of preborn children are receiving a boost as a state court and several state legislatures respond to cases of injury and death to fetuses as a result of intentional harm, drunken driving, and drug use by expectant mothers.
The latest events in what some call a trend toward full legal recognition of fetuses as persons include a fetal homicide bill in the Wisconsin legislature, measures passed in South Dakota and Wisconsin to limit drug exposure to fetuses, and a ruling by Texas's highest criminal court upholding a manslaughter conviction in the death of a baby girl who was injured while in her mother's womb.
In late April, pro-lifers marked a victory when Texas's Court of Criminal Appeals refused the appeal of Frank Cuellar, who was sentenced to 16 years in prison for causing the death of Krystal Zuniga in 1996. Krystal was delivered by an emergency cesarean section after the vehicle her mother was driving was struck by an intoxicated Cuellar. The baby died two days later of injuries sustained in the accident.
While not challenging Texas's “born alive” rule — that a person must be “born” and “alive” to be a victim — the court decision was “a real breakthrough,” according to Bill Price, president of Texans United for Life, an education and political lobbying group.
“Four to six years ago we wouldn't have gotten this kind of ruling,” said Price, alluding to a new cache of elected judges who are more favorable to cases involving the rights of the pre-born. “This is limited, but it's still in the right direction.”
Like other publicized incidents that lead to legislation, the Zuniga case may lead to new laws recognizing the rights of babies who die before birth.
“It supports those who wish to amend the law, because only by happenstance was this child born alive,” said Judy Koehler, senior counsel for Americans United for Life, a public-interest law firm based in Chicago. “It certainly adds weight to the argument.”
Price said people have an image of Texas as being a Bible-belt haven of conservatism, but he contends that the state has some of the most liberal abortion laws in the country. Texas is also one of 24 states that has no fetal homicide laws.
Most fetal homicide statutes make an exception for abortion, a necessity under the sweeping Supreme Court ruling of Roe v. Wade, said Koehler, but clearly states are not afraid to recognize the rights of fetuses whose mothers want to carry them to term. Of the 26 states that do have such laws, just more than half have passed them within the last five years.
“Year by year more and more states are recognizing the humanity of the unborn child,” said Koehler.
Case in point, the Wisconsin Senate this spring passed its version of a bill already approved by the Assembly that would allow for life imprisonment for a person who assaults a pregnant mother and injures or kills her preborn baby. The measure comes in response to a 1992 incident in which a man beat his wife, who was nine-months pregnant, and caused the baby to be stillborn. The man received a 12-year sentence for reckless injury and false imprisonment, but was not convicted in the death of the baby.
Since abortion is excluded, the pending law will take the position that “the child is a child if it's wanted,” said Marianne Linane, legislative assistant for Wisconsin Right to Life, which has worked toward this legislation since 1985. “But it will protect that child from assault, [and] it acknowledges through the court that there is something to be respected.”
Within the past year fetal homicide laws have been passed both in Indiana and Pennsylvania.
In a resounding override of a governor's veto last spring, the Indiana legislature voted in January to stiffen penalties against a person who intentionally kills a viable fetus during a crime. Such individuals, formerly limited to a Class C charge of feticide, can now be charged with Class B felony murder, raising the status of the preborn child to that of a born person.
Last fall Pennsylvania passed a law that would provide for a maximum sentence of life in prison for a first-degree fetal murder charge. The law makes Pennsylvania one of 11 states that recognizes the rights of the fetus at every stage of pregnancy. The other 15 states with fetal homicide laws define some limitation based on the stage of pregnancy, such as “quickening” or viability.
Father Edward Robinson, the Dallas bishop's diocesan pro-life coordinator who has written about and closely followed the abortion and anti-abortion movements since 1968, said rulings for fetal protection show “good logic” in recognizing that there is no difference in a child's humanity from conception to birth. Additionally, he believes such laws are not a mere trend, but demonstrate a righting of the nation's morality since the permissive ‘60s and early ‘70s that created a climate for Roe v. Wade.
“[Abortion] was right in that permissive time. It looked acceptable,” Father Robinson said, but now, “the thing is collapsing.”
“I think the moral climate is beginning to change. The laws are beginning to toughen up,” he said, citing higher discipline standards in schools and stricter laws against juvenile crime.
In another type of fetal-rights case in Wisconsin — a state that made history in mid-May when abortions were voluntarily halted pending judicial review of a new partial-birth abortion law — a measure will soon be law that would put under the jurisdiction of juvenile courts those preborn children who have been exposed to drugs in utero. The courts could exercise that authority by confining the expectant mother to a drug treatment program, hospital, or relative's home.
The bill, which had been approved by both chambers of the state Assembly and was awaiting gubernatorial signature as the Register went to press, stems from a controversial 1995 case in which a cocaine-using pregnant woman was detained by a Waukesha County juvenile court to prevent harm to her baby by further drug use. While an appeals court upheld a lower court ruling in favor of the civil detention, the Wisconsin Supreme Court overturned the ruling, leaving an opening for a change in state law.
Wisconsin Right to Life worked toward an amendment that will allow for the detention of the woman through the full nine months of pregnancy, since fetuses in their earliest weeks are especially vulnerable to damage from drugs, said legislative assistant Linane.
Although detention will be a last-ditch attempt after many other interventions have been tried, Linane said she understands people who “get a little exercised” about the notion of detaining pregnant women.
“Now the constitutionality of the law will probably be tested,” she said. “You never, ever know what these judges will do.”
A similar civil detention approach is being tried in South Dakota, where new laws will take effect this summer that will allow the involuntary commitment to a treatment facility of a pregnant woman who abuses alcohol or drugs. Eleven other states have considered such laws this year.
The American Civil Liberties Union (ACLU) and other defenders of abortion laws are keeping a close eye on fetal protection trends, fearing, according to a 1996 ACLU fact sheet, “a direct threat to women's reproductive rights by reinforcing dangerous claims of ‘fetal rights’ in the law.” The fact sheet also warns of a possible “insidious trend toward ‘policing'pregnancy by attempting to control the conduct of pregnant women.”
Americans United for Life's Koehler said the civil detention of pregnant drug users “is a whole new area of the law” and it remains to be seen how these laws will hold up in court.
Nevertheless, Koehler agrees with her opponents that the new laws may have the effect of leading people to question legalized abortion.
“I think anything that establishes the humanity of the child reminds the American public of what it already knows — that [the fetus] is a life,” she said.
Ellen Rossini writes from Dallas, Texas.