National Partnership for Women & Families – Women’s Health Policy Report

April 13, 2015 — The risk of legislation aimed at criminalizing fetal homicide in Colorado and other states is that, “without statutory reform, the pregnant woman as a category of victim will remain overlooked, while the fetus gets special protection,” Deborah Tuerkheimer, a law professor at Northwestern University and former assistant district attorney in Manhattan, writes in a New York Times opinion piece.

According to Tuerkheimer, “[l]egally severing a fetus from the pregnant woman has the effect of pitting her interests against the fetus’s” and can make “women criminally responsible, not only for the life of the fetus, but also for its well-being.” For example, Tuerkheimer notes that fetal rights have been used to prosecute pregnant women — particularly those in “vulnerable and marginalized” populations — “for using drugs, refusing a cesarean section, having sex against a doctor’s recommendation and attempting suicide.”

Further, Tuerkheimer writes that “[g]ranting fetuses victim status … does not address the core harm” of assaults against pregnant women. “When violence is done to a pregnant woman, her reproductive freedom is trampled,” she writes, adding that “[t]he law should provide a remedy” in such instances.

However, she notes that “criminal law largely fails to account for how the fact of pregnancy defines the harm experienced by these women,” with “Congress and most states” instead “pass[ing] feticide laws.”

Tuerkheimer urges states to “reject the wrongheaded logic of maternal-fetal conflict behind the new Colorado proposal” and instead follow the lead of Colorado in 2013, when the state “enacted a crime of ‘unlawful termination of pregnancy’ that expressly recognizes the pregnant woman as the victim of violence.” Further, she calls on states to address “[c]ases of violence against pregnant women that don’t involve loss of pregnancy,” writing that “[a] separate crime of assault on a pregnant woman would establish that a woman has a stake in her pregnancy, an interest worth protecting” (Tuerkheimer, New York Times, 4/13).