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Causing a miscarriage - an act of murder?

A Colorado bill protecting the unborn from violent crime has critics concerned about abortion rights.

By Jillian LloydSpecial to The Christian Science Monitor / February 15, 2000



DENVER

A Colorado bill that could make it a homicide to cause a pregnant woman to miscarry is adding a new twist to the emotional debate over when human life begins.

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The proposal - advancing along party lines in the Republican-dominated statehouse - reflects a growing trend across the United States to increase legal protections for fetuses.

In recent years, a number of states from Missouri to Virginia have passed laws either permitting wrongful-death claims for the loss of a fetus or criminalizing destructive behavior by pregnant mothers, such as abusing drugs or alcohol. Even Congress is contemplating a federal statute to protect fetuses from violent crime.

Yet these laws have been criticized as a thinly veiled effort to undercut a woman's right to abortion. As a result, the Colorado proposition has become a crucial test for determining the rights of unborn children.

"All of this is intended to take attention away from the woman, and define the fetus as a separate legal entity," says Caitlin Borgmann, state legislative coordinator for the American Civil Liberties Union's Reproductive Freedom Project in New York.

"Ultimately, if harming a fetus is criminal in one context, why wouldn't it be in another?" she says, referring to abortion.

Existing laws in Colorado punish criminal acts against pregnant women - be it physical assault or reckless driving - but do not view any resulting loss of her fetus as a crime, says Rep. Lynn Hefley (R) of Colorado Springs, the bill's sponsor. "If a woman's purse is stolen, that's a crime and there's punishment for that. Stealing away an unborn child from a woman, there's no punishment for that."

The proposed law - which is similar to one already in effect in Minnesota - would essentially give a fetus the same protections against crime as any human being. Causing a pregnant woman to miscarry would actually constitute two individual crimes: one against the mother, and the other against her unborn child.

But Ms. Hefley says the bill "is not about abortion." Rather, the intent is to protect pregnant women from violent crime, she says, and to punish those who cause a woman to miscarry. "The penalties now are weak," she says.

Natasha Bergman, who was two months pregnant when her boyfriend assaulted her last year, causing a miscarriage, is urging legislators to pass the bill. Her boyfriend was charged only with a third-degree misdemeanor, she told a statehouse committee, and he served no prison time. But under Hefley's proposal, the crime would have been prosecuted as a homicide.

Protecting pregnant women from violent acts is a laudable goal, acknowledge critics of the bill. But they argue that the proposal treats the fetus, rather than the mother, as the crime victim.

"We're opposed to this because it doesn't do anything to further protect the woman who is being attacked, and it's creating a separate crime of feticide," says Brenda Roush, executive director of the Colorado National Abortion Reproductive Rights Action League.

"Why not just look at strengthening enforcement and prosecution?" Ms. Roush asks. "There are already laws on the books for assaults on women. This could be treated as an aggravating factor in the sentencing process."

That idea resonates with David Lane, a criminal lawyer and adjunct professor at the University of Denver School of Law. "I can see a bill in which the mother is perceived as the victim - with an additional penalty for [someone] intentionally, knowingly, or recklessly terminating her pregnancy used as a sentencing enhancement," he says. "But not if the fetus is given civil rights."

A fetus is defined in Hefley's bill as a human being at any stage of development. That definition troubles Rep. Ron Tupa, a Boulder Democrat who voted against it. "I'm not sure that this is constitutional," he says. "In light of Roe v. Wade, a fetus is not a person. Yet it seems this bill is attempting to say just that."

Many observers agree that there is a fundamental inconsistency between seeing a fetus as a person in one context but not in another. "You can't have it both ways," says Ms. Borgmann.

Mr. Tupa also finds it problematic that the proposed law does not require that the offender be aware of the woman's pregnancy - or intend to cause injury to the fetus - to be charged with a felony. "You could have a woman who is one month pregnant, and not showing," he points out.

But it's not unusual for the law to punish unintentional acts that occur during the commission of a crime, says Peter Weir, executive director of the Colorado District Attorney's Council. "Drunken driving is an example," he offers. "By virtue of your getting behind the wheel, you're responsible for the consequences."

What is a departure from existing law is applying the standard of a "strict liability crime," which doesn't require intent, to a fetus, he says. "It would be new ground."

(c) Copyright 2000. The Christian Science Publishing Society