Does the state have an interest in extending its criminal law to protect developing fetuses and the pregnant women who cany them? If so, should conduct that causes the death of a fetus be criminalized? Although some American jurisdictions share answers to these questions, their approaches differ. Many American jurisdictions have answered these questions affirmatively, criminalizing the killing of fetuses, but their approaches to the problem are disparate. Of those American jurisdictions that classify the killing of a fetus as a form of homicide, some classify it as murder, while others classify it as manslaughter. Some have criminalized it through legislation, some through judicial decisions. Some use their criminal law to protect all fetuses. Others protect only viable fetuses or quick fetuses. Still others have statutes that define the crime as assault on a pregnant woman. Many American jurisdictions have not extended their criminal law to protect fetuses or to provide special protection for pregnant women. In those states, the law provides no additional criminal penalty for the killing of a fetus or the assault on a pregnant woman. Space limitations make a comprehensive description, analysis, and evaluation of the approaches impossible. Rather than attempting a superficial discussion of each approach, this paper describes, analyzes, and evaluates the three basic approaches. The three approaches are: killing a fetus is not a crime under the common law born alive rule, killing a fetus is a form of criminal homicide, and killing a fetus is a criminal assault on a pregnant woman. Because there is little variation among the states that adhere to the born alive rule, the paper will use legal sources from more than one jurisdiction in the course of discussing that rule. Although selection of one jurisdiction to represent the homicide jurdictions was difficult, California is the best choice because the law of that state is both influential and developed. This paper will use New Mexico law to represent the assault jurisdictions, mostly because the author and the potential readers have a special interest in the law of that jurisdiction. Following the description and evaluation of the three approaches, the conclusion makes recommendations in light of the discussion.
University of New Mexico School of Law
Ives, Zachary. "Feticide and Criminal Law: Is There an Acceptable Approach?." (1998). https://digitalrepository.unm.edu/law_studentscholarship/56