CLEVELAND — The horrific case of Ariel Castro, the Cleveland man accused of kidnapping three women and keeping them hostage in his basement for more than a decade, is inadvertently casting a new spotlight on federal and state laws that extend legal protections to unborn children.

Prosecutors said Castro, 52, may face the death penalty, in part because he allegedly induced miscarriages in one of the women he allegedly raped. Prosecutors say Castro impregnated one victim, Michelle Knight, five times and ended her pregnancies by starving her and punching her repeatedly in the stomach.

Ohio state law recognizes forced miscarriage as a punishable crime. The state’s aggravated murder statute applies to people who cause the “unlawful termination of another’s pregnancy.”

There are anti-feticide laws in at least 38 other states, with several of those laws making it a separate offense to kill a fetus when a pregnant woman is murdered or assaulted, according to the National Conference of State Legislatures.

Many of those laws have been passed in the last decade, several of them during the administration of Republican President George W. Bush. Since 2003, Colorado, Texas, Mississippi, Kentucky, Alabama, Alaska, South Carolina and West Virginia have all passed laws that make it a separate offense to kill or harm an unborn child — at any stage of development — when the mother is murdered or assaulted.

In 2004, Congress also passed, and President Bush signed, the Unborn Victims of Violence Act, which recognizes a child in utero as a legal victim if he is killed or injured during the commission of 60 violent crimes listed by the federal government. Those crimes include kidnapping, interstate stalking, bombings and offenses related to drug trafficking, among others.

The federal law defines “child in utero” — in any stage of development in the womb — as a member of the homo sapiens species. The act is also known as Laci & Conner’s Law, named for Laci Peterson, who was murdered in 2002 while she was eight months pregnant with her son in California. Scott Peterson was convicted of murdering his wife and unborn son and is on death row. He is appealing the conviction.

The various state and federal laws are a “positive development” in protecting the unborn and their families, said Deirdre McQuade, assistant director for policy and communications for the Secretariat for Pro-Life Activities of the U.S. Conference of Catholic Bishops.

“While laws protecting the unborn from violent aggressors are written with exemptions for abortion, each time such a law is drafted and debated it questions the arbitrary logic of Roe v. Wade,” McQuade told the Register.

Though the laws grant legal protections to the unborn, they only do so when a pregnant woman is assaulted and suffers the loss of her child. The laws do not invalidate Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion. 

Several states, such as Idaho and Indiana, specifically say in their statutes that criminal penalties do not apply in the cases of women who willingly undergo abortions.

 

‘Split Personality’

Pro-life activists say the current jurisprudence around abortion and the unborn shows the “schizophrenic” nature of the legal system’s approach to the issue and to the legal personhood of children in the womb.

“Legal abortion is the unjustified exemption in the law that treats the unborn as if they have no rights,” McQuade said.

“America has a split personality: We have laws that rightly classify killing a pregnant woman as a despicable double murder. And then, down the street, an abortionist can legally pierce the head of a baby and kill it as the mother’s right,” said Paul Rondeau, executive director of the American Life League, the nation’s largest Catholic pro-life grassroots network.

Rondeau told the Register that laws do not protect anyone when they are not enforced due to political correctness.

 

State Laws

Of the states that have anti-feticide laws, 28 of those states’ laws apply to the earliest stages of pregnancy by specifically mentioning “any state of gestation,” “conception,” “fertilization” or “post-fertilization” in their statutes.

California defines the killing of the unborn child immediately after the embryonic stage. Four states — Washington, Nevada, Florida and Rhode Island — define the killing of the unborn child after the discernible movement within the womb.

Meanwhile, 21 states define non-fatal assaults on the unborn as criminal offenses, according to Americans United for Life’s report "Defending Life 2013."

On the civil docket, 27 states and the District of Columbia permit wrongful-death suits if an unborn child was viable at the time of his or her death. Thirteen states allow lawsuits for a pre-viable unborn child.

State laws also grant the unborn several legal rights, in that they can: inherit property, be represented by a guardian, sue for wrongful death if their father is killed, and qualify as recipients of state-funded health insurance. The unborn are also considered human subjects protected from harmful medical and scientific research.

In some states, recent legislation has increased the criminal penalties for crimes involving pregnant women. Thirteen states have “one victim” laws that define those types of assaults as enhanced offenses for sentencing purposes, according to Americans United for Life.

An overview of these criminal penalties shows a wide range of potential fines and prison sentences for defendants convicted of killing the unborn in the womb.

For example, in Arizona, where the law treats an unborn baby like a minor under 12 for the sake of punishment, a defendant will spend at least 35 years in state prison. 

In Indiana, prosecutors may move for the death penalty or seek a life sentence without parole for someone convicted of killing a pregnant woman and her unborn child.

In Minnesota, where the murder statutes apply to the unborn, a person can also be convicted of motor-vehicle homicide for causing the unborn child to die in a car accident and be sentenced to serve up to 10 years in state prison and be fined up to $20,000.

In Massachusetts, where the unborn’s legal protections developed through case law rather than legislation, a defendant can be convicted of involuntary manslaughter for causing the death of a 27-week-old fetus, with that conviction carrying a prison sentence between 3 1/2 to 10 years, depending on the defendant’s prior criminal record.

Massachusetts and Maryland are the only two states with fetal-protection laws that only apply to babies considered viable outside the womb.

 

Opposed by Abortion Activists

Abortion-rights activists say the anti-feticide laws present a slippery slope that jeopardizes legal abortion and creates an adversarial relationship between the mother and her unborn child by recognizing them as two distinct persons under the law. They also argue the laws unjustly criminalize a mother’s behavior during pregnancy to include smoking, drinking and using drugs.

For example, on Jan. 11, the Alabama Supreme Court affirmed a lower court’s ruling that two pregnant women violated a state “chemical endangerment” law by consuming cocaine and methamphetamine while pregnant. One woman’s baby tested positive for cocaine when born, while the other baby was born prematurely and died 19 minutes later due to “acute methamphetamine intoxication,” according to published reports.

A January article in the Journal of Health Politics, Policy and Law — written by Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, and Jeanne Flavin, a sociology professor at Fordham University — wrote that the anti-feticide laws are increasingly used to unjustly incarcerate and coerce pregnant women, many of whom are minorities and on lower levels of the socioeconomic ladder.

Paltrow and Flavin raised several examples, including that of Regina McKnight, a 21-year-old South Carolina woman who was convicted of homicide in 2001 for causing the death of her unborn child by using cocaine. The South Carolina Supreme Court subsequently reversed the conviction after finding that McKnight had received ineffective counsel and that the state relied on outdated research that did not take into account recent studies that cast doubt on whether cocaine use is more harmful than poor nutrition, nicotine use or other conditions associated with the urban poor.

Paltrow and Flavin argued that “all pregnant women, not just those who try to end a pregnancy, will face the possibility of arrest, detention and forced intervention.” Americans United for Life’s report indicates that 17 states define substance abuse during pregnancy to be child abuse. Fourteen states require health-care professionals to report suspected prenatal drug use, and two states — Kentucky and North Dakota — require newborns to be tested when there is suspicion of drug use.

 

‘Smoke Screen’

The Americans United for Life report says the vast majority of state laws dealing with prenatal substance abuse are not criminal in nature and do not permit incarceration of pregnant women. These laws, AUL said, are intended to give pregnant women access to the tools they need to have healthy pregnancies.

McQuade told the Register that the “pro-choice” arguments are a “smoke screen.”

“It looks at the issue inside out,” McQuade said. “No well-crafted law criminalizes women seeking abortions, either by a doctor or self-inflicted, or those participating in other harmful practices during pregnancy.”

McQuade added that pregnant women are especially at risk for domestic violence precisely because they are pregnant.

“Measures to protect the unborn child are simultaneous measures to protect [the mothers],” McQuade said.

Responding to the criticisms, Rondeau told the Register to consider the source.

“When so-called ‘pro-choice’ critics say those laws criminalize pregnant women, you have to remember who is saying it: people who believe in the killing of the most innocent human beings for convenience or profit,” Rondeau said. “Those same people fight parental-consent, informed-consent laws, inspections, and, time and time again, they even fail to report underage rape, leaving young girls at risk for further sexual abuse.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.