COMMENTARY:  Fetal Homicide Laws & Legal Abortion – The Common Denominator

By Benjamin Wolf

In March, a Texas Court of Appeals issued its decision in Sanders v. State of Texas. In that case, Sanders was convicted of killing Angela Alex and her unborn child. He was convicted based on a Texas law that prohibits intentionally causing the death of an “individual,” and defines “individual” as including “an unborn child at every stage of gestation from fertilization until birth.”

Sanders challenged his conviction, arguing that a law criminalizing the killing of a fetus “at every state of gestation” is unconstitutional because it violates the establishment clause of the First Amendment as incorporated against the states by the Fourteenth Amendment. However, the Texas appellate court upheld the statute because its “principal or primary effect” is not to advance religion, finding that it has a valid secular purpose in that it “serves the State’s legitimate secular interest in protecting unborn children from the criminal acts of others.”

While some may find this surprising, many relatively pro-choice states have laws that classify the killing of a fetus as homicide or murder. For instance, he New York Penal Code defines homicide generally as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks….” (Emphasis added.)

Legislation was introduced in New York on January 15, 2009 that would prohibit the killing of a fetus “at any state of gestation….” (Emphasis added.) The new language would put New York’s statute more in line with the Texas statute, classifying the non-consensual killing of a fetus at any state of gestation as homicide. Even if adoped, the new language would not affect abortions performed consensually at the behest of the mother by a physician.

Only about one in seven New York residents believes that abortion by a physician should be prohibited. Nevertheless, the legislature stated that their intent was to give greater protection to pregnant women who are abused to the extent that the abuser’s attack causes the loss of the fetus. Permitting doctor-performed abortions on the one hand, and classifying non-consensual killing of a fetus as murder on the other, may seem inconsistent, but this dichotomy exists in varying degrees in many other states around the country.

California, another strong pro-choice state, defines murder as “the unlawful killing of a human being, or a fetus….” California cases have defined a fetus as such under the statute at about 7 or 8 weeks gestation, when its major structures have been outlined.

A state’s classification of killing a fetus as murder is inconsistent with the legality of abortion only if the measuring stick one uses is “when life begins.” But if one considers that legislatures are using a different measuring stick, those positions do not seem as inconsistent. The common denominator that runs between these seemingly inconsistent rules is the legislature’s desire to protect the wishes and rights of pregnant women. Whether the mother wishes to voluntarily terminate her pregnancy or to prosecute an abuser who terminates her pregnancy through the use of violence and without her consent, the legislature’s desire in both cases is to honor the mother’s wishes.

The fact that even the most pro-choice states classify the non-consensual killing of a fetus as murder in their criminal statutes indicates that such classification is certainly not intended to establish religious doctrine as state law or define “when life begins.” Rather, the fact that states consider non-consensual abortion to be murder while consensual abortion remains legal indicates that in this area of the law, the interests, choices, and wishes of pregnant women are the overriding concern.

Benjamin Wolf is a Law Clerk at The Law Offices of Elliot Schlissel, a multi-service law firm serving clients in the five boroughs of New York City, as well as Nassau and Suffolk counties.


Sanders v. State of Texas, 2009 Tex. App. LEXIS 2561 (Tex. Ct. App. April 2, 2009).

Texas Penal Code § 1.07.

New York Penal Code § 125.00.

Richard Perez-Peaa, “Where the Politics of Abortion Stand Now,” The New York Times (Nov. 20, 2002, B2).

Mark DiCamillo and Mervin Field, “Two Thirds of Californians Remain Pro-Choice, Support the U.S. Supreme Court Upholding the Roe v. Wade Decision Should it Come Up Again for Review,” The Field Poll (March 14, 2006).

People v. Valdez, 126 Cal. App. 4th 575, 580 (2005).

Howard M. Friedman, “Conviction for Killing Unborn Child Does Not Violate Establishment Clause,” Religion Clause blog (April 17, 2009).