Texas fetacide law
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|Fri, 02-15-2008 - 1:04pm|
Hmm. There's so much viscerally alarming stuff in this story I am having trouble beginning to think about it logically...but I figure it'll stimulate some good posting here.
***Court upholds Texas fetal protection law
By JIM VERTUNO Associated Press Writer
© 2008 The Associated Press
AUSTIN — Texas' highest criminal appeals court on Wednesday upheld a state law that allows prosecution for causing the death of an unborn child, affirming a conviction in the case of a 16-year-old whose belly was stomped so she would miscarry twins.
It was the second time in the past four months that the Court of Criminal Appeal has upheld the fetal protection law, which covers deaths aside from legal abortions.
The case in Lufkin was notable because of the girl's testimony that she was a willing accomplice who beat herself in the stomach and asked to be stomped to induce the miscarriage.
Gerardo Flores, 19 at the time of the 2004 miscarriage, was convicted of capital murder and sentenced to life in prison. The 16-year-old, Erica Basoria, was not charged. Prosecutors believed she was an abuse victim and didn't really consent to being beaten.
For some, the conviction called into question the fairness of the law, which gives a fetus legal standing but exempts mothers and health care providers who perform a legal medical procedure.
Flores' appeal said the law violated his right to equal protection because he could be prosecuted and she could not even though both took steps to try to kill the twins.
Basoria gave sworn statements that she beat herself in the stomach and twice asked Flores to stomp on her belly — once two weeks before she miscarried and a second time a week before.
Prosecutors, however, believed she was abused by Flores and never asked him to stand on her growing abdomen nor inflicted any injury on herself.
When Basoria found out she was pregnant in 2004, she told her doctor she was opposed to abortion.
Medical records indicate she repeatedly told doctors and a paramedic after she miscarried that she had been taking her prenatal vitamins. But in her affidavit, Basoria said she intentionally stopped taking the prescribed vitamins and began jogging, even though she knew it might harm the babies.
Expert testimony at trial also raised questions of whether she was a classic case of an abused person trying to protect an abuser.
Three days after the miscarriage, Basoria's statement to police differed from what she told Flores' lawyer after she began visiting Flores in jail.
"Jerry had asked me to stand on my stomach, and I had no other choice," Basoria told police.
The appeals court said a reasonable jury could conclude that stepping on her belly was abusive rather than consensual and noted the jury did not make a finding of consent.
The court also said that because Flores raised that claim only in a pretrial hearing and not during trial, he could not raise it now on appeal.
The court also rejected Flores' other claim that the law is improperly based on religious beliefs against abortion.
Joe Pojman, executive director of the Texas Alliance for Life, which helped craft the fetal protection law passed in 2003, says the law is constitutionally sound and working as intended.
"A woman cannot consent to have someone beat her up and she cannot consent to taking the lives of the unborn children accept to the narrow circumstances (of a legal abortion)," Pojman said. "The state can certainly protect that mother and unborn children from any third party."
Flores' trial attorney, Ryan Deaton, said he was disappointed.
"This kid does not deserve the punishment he's receiving," he said. "We sure hoped people in higher places would have seen that. They either do not see that or do not care."
Deaton said the court generally avoided the equal protection questions by not allowing it on appeal.
Judge Cathy Cochran, in a concurring opinion, said that while she agreed with the opinion, Flores should have been allowed to raise that issue on appeal.
In November, the court rejected an appeal from a Dallas man who said his due-process rights were violated because he was prosecuted for two murders for the killing of a woman and her 4- to 6-week-old fetus.
By upholding the law twice, the court has sent a strong message, Pojman said.
"This reaffirms the right of the state to recognize and unborn child as a person for purpose of crimes of murder," he said.