Friday, November 23, 2007

Fetal Murder, Texas Style

[Fine Print: the below is about an hour's worth of Google-only legal analysis, so I welcome any corrections, especially from my esquired readers.]

For an interesting piece about non-elective abortion being treated as murder in Texas, read here. By "non-elective abortion", I mean the death of a fetus-child not elected by his or her mother to be performed by a physician, and I mean to exclude "spontaneous abortion" (i.e., miscarriage).

It is an interesting approach Texas has taken, and an interesting fact pattern it is pursuing in court. A boyfriend, angry at the recently pregnant mother of his child, murdered her (and the child with her). He is being prosecuted on two counts of murder. Texas defines capital murder to include, inter alia, murders of more than one person in one "criminal transaction", and of a child under the age of six (Tex. Penal Code, Title 5, Sect. 19.03(a)(7)(A) and (a)(8)). So, much is on the line for this young man.

Criminal law requires both a guilty mind (mens rea) and a guilty act (actus reus) to have a guilty defendant. The guilty mind element does not mean that one has to hate or feel scorn before one faces criminal liability. Rather, it requires that one act with intent, knowledge, or recklessness with regard to the prohibited conduct.

The Texas Penal Code defines murder as "intentionally or knowingly caus[ing] the death of an individual" (Sect. 19.02(b)(1)). As Texas has separately defined a fetus as an individual, a physician intentionally causing the death of a fetus there would meet both the mens rea and actus reus requirements of Texas' murder statute.

Of course we know such a plain reading does not conform with the U.S. Supreme Court's mandate in Casey v. Planned Parenthood, the standing ruling that reinvented the sputtering rationale underlying Roe v. Wade. A law that inhibits a so-called "fundamental liberty interest" such as abortion will be struck down (as was, for example, the fate of Connecticut's anti-contraception law in Griswold v. Conn.). I, for one, would enjoy seeing the Supreme Court strike down Texas' entire Criminal Homicide Chapter as an unconstitutional infringement on fundamental liberties, but those sensible jurists in black are too wise for such attention-gathering shenanigans. They will find a subtler way to act. They could, for example, simply strike down the Texas law that defines a fetus as an individual. That would solve several problems, including the possible death sentence this father faces for killing his girlfriend and child.

I really believe that states opposed to the Roe mandate can do no better in the near term than to legislatively define the fetus as a person endowed with his or her own rights. The difficulty here in distinguishing murder from medicine may leave courts looking high and low to nix the law. I hope to hear more of this case as it works its way through the cogs of the appellate process.

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