Make Abortion Laws Consistent with Homicide Laws

Author Alan Shlemon Published on 01/03/2023

Roe v. Wade is dead. This is the first year in nearly half a century that the grim U.S. Supreme Court decision is no longer in effect. Sadly, though, abortion is still very much alive. In fact, there are many laws that protect the right of women to end the lives of their unborn children. Despite this reality, there are still some state laws in place that protect unborn children, which leads to a puzzling inconsistency in the law.

It is currently considered murder to kill an unborn child in 38 states in America. The protections are referred to as “fetal homicide laws.” Even in the left-leaning state in which I live—California—the penal code states, “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” The law appropriately protects the unborn because the unborn is a human being. That makes sense. It’s wrong to kill an unborn human being for the same reason it is wrong to kill a two-month-old human being or a two-year-old human being. Of course, these fetal homicide laws contain an exception, which, when you reflect on the logic, is truly mystifying.

Here's how the exception (at least in California) is worded. It is unlawful to kill a fetus, except when “the act was solicited, aided, abetted, or consented to by the mother of the fetus.” That’s bizarre. If a doctor kills a pregnant woman’s unborn child, it’s murder. If, however, the woman asks the same doctor to kill her child, then it’s not murder. How does that make sense? If the unborn is a valuable human being, then how can the mother’s mere decision alter the child’s value?

Notice, once the unborn is no longer inside her, a mother’s decision can’t change the status of her child. Even if the mother solicits the doctor’s services and consents to her daughter’s death, the doctor will still be charged with murder if he proceeds to take the child’s life as he would have done in utero.

It makes sense that the mother’s mere consent can’t change the value of her two-year-old daughter. Move the child back inside the mother’s womb, and now—suddenly—she’s fair game. She can be killed with impunity so long as the mother solicits, aids, abets, or consents to her daughter’s death. This is inconsistent.

Consider a hypothetical case where a woman is pregnant with identical twin girls. Imagine one of the twins is delivered prematurely at around the 25th week of pregnancy (typical pregnancies last 40 weeks). The born twin, though not fully developed, is automatically protected under the law. Her twin sister (still inside the womb), however, can be killed at any time during the remainder of her 15-week gestation. Why? The law says the mother can decide to kill her in utero twin daughter while her identical twin daughter outside the womb is safely protected from the mother’s whim.

The solution to this baffling inconsistency is simple. Our society should remove the exception. A mother should not be able to—at will—transform her child’s status from valuable and protected to non-valuable and not protected. After all, the laws of 38 states already protect unborn children. All that’s necessary now is to remove the exception, and abortion laws will be consistent with homicide laws.

Abortion-choice advocates also recognize the inconsistency in the law. Instead of resolving it by removing a mother’s right to solicit, aid, abet, or consent to her child’s death, they want to remove fetal homicide laws. That’s because they recognize these laws humanize unborn children, and that’s not conducive to protecting abortion rights long-term.

What this means for the pro-life community is that there remains a tremendous amount of work to be done to overturn the greatest injustice of our time. Roe v. Wade is dead, but the abortion industry is very much alive.