The news that Ariel Castro might be tried for murder for ending the pregnancies of the women he held captive has brought to the fore an older debate over fetal homicide laws. If ending a pregnancy is murder, what does that say about the legal status of the unborn?
Castro reportedly impregnated Michelle Knight, one of his three kidnapping victims, five times, then forced her to miscarry by starving her and repeatedly punching her in the stomach.
Since 1996, Ohio, like 37 other states, has had a law that intentionally ending a pregnancy is murder. Murder charges can be brought against someone who causes a miscarriage, or murdering a pregnant woman will recognize two victims to the crime.
The law reads: "No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy."
The law specifies that murder charges can only be brought when ending the pregnancy is "unlawful," thus allowing women to have an abortion without it being considered murder.
In 2004, Congress passed a similar federal law, the Unborn Victims of Violence Act, or "Laci and Connor Peterson's Law."
Pro-life and pro-choice groups view these laws differently.
Pro-choice groups often oppose fetal homicide laws because they worry they will establish a right to life for the unborn in the law. When they have supported the laws, they couch their support in terms of the mother's choice: ending a pregnancy against the mother's will takes away her choice to have the child, they argue.
On the one hand, the laws support the pro-choice view by allowing the destruction of life in the womb when a woman chooses to do so. On the other hand, fetal homicide laws reinforce the pro-life message because the penalty for fetal homicide (in some states it could be the death penalty) suggests a crime more serious than taking away a person's right to choose.
A set of national pro-life groups sent a Thursday letter to the prosecutor in the Ariel Castro case saying they support his intention to charge Castro with murder.
Pro-life attorney Samuel Casey argued, in an interview with LifeNews.com, that intentionally ending a pregnancy should always be considered a crime, regardless of the intent of the mother.
"We believe that whether a child is in utero or 'born alive' – whether we call it fetal homicide or infanticide – it is a criminal action to take an innocent human being's life. The mother's consent (particularly when it is coerced or uninformed) should make no difference to the existence of the crime being committed. Whether the apparent motive is a commercial one (as in Kermit Gosnell's case) or sexual abuse (as in Castro's case), it should be just as criminal for a health care provider or a sexual deviant to kill a baby born or preborn because pregnancy is not a disease and induced abortion is never health care," he said.
Writing for Slate, a liberal publication, Emily Bazelon argued that Castro should not be tried for murder because she views it a proxy for obtaining a tougher sentence (the death penalty) for Castro's other crimes.
"I still think, though, that there would be something very strange about executing Castro for the harm he did to fetuses, as opposed to the harm he did to three living and breathing women. Maybe that seems like a legal nicety. But in this case the aggravated murder charge is really a proxy for condemning the years of rape and captivity Castro inflicted. And that makes me wary of it," she wrote.