Reform Iowa’s fetal homicide law

By April 27, 2019No Comments

In the legislative session coming to a close, legislators considered a proposal to revise current Iowa law on fetal homicide, recognizing in the event of an assault of a pregnant woman, two human lives are at stake and in need of protection.

Currently, at least 38 states have enacted fetal homicide laws that are a version of the one proposed, including those that surround Iowa and across the Midwest. Further, all of those states—Arkansas, Illinois, Indiana, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Wisconsin are among the 27 that have fetal homicide laws that apply to the earliest stages of pregnancy.

Some of those states were prompted to act following the passage of the federal “Unborn Victims of Violence Act” of 2004. The law establishes that acts of violence and physical assault on a pregnant women have two separate victims. The death of an unborn child is not only an extension of the harm caused to a woman, prosecuted as a “nonconsenual termination” and  “deprivation of pregnancy,” but as the loss of a unique human life, a legal victim of homicide. The text of the federal act covers the “child in utero,” defined as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” The law explicitly provides that it does not apply to any abortion to which a woman has consented, to any act of the mother herself, or to any form of medical treatment.

States that have enacted fetal homicide laws have faced opposition from those who contend they may potentially intersect with existing abortion law. However, legal challenges to the laws, arguing they violate Roe v. Wade or other Supreme Court precedents, have been rejected by both federal and state courts. Even legal analysts that support a right to abortion acknowledge fetal homicide laws and abortion laws are not in conflict, and the Supreme Court has agreed, finding the two legally exist simultaneously, and separately.

Further, the Court did not intend that the unique context created by Roe v Wade should lead to dismissing the humanity of the unborn child, generally, extending to public policy beyond the reach of its decision. In fact, just the opposite, as even in that landmark case, the Court was clear about the challenge of balancing the state interest in protecting life. The Court did not intend to be ambiguous about whether it was life it was protecting.

Iowa law should be free to state clearly and unambiguously it protects both a mother and her unborn child in the event of criminal assault. Because of decades of advancements in science and technology, and evolving Supreme Court law, no one questions today whether unborn life is human life. The term “potential life” has become an outdated one. Our law should reflect that reality. We have an opportunity to take pro-life action that is substantial, but separate from the controversy of the abortion debate. We hope lawmakers will consider a fetal homicide proposal again in 2020.