Law Should Protect Wanted Fetuses While Allowing Abortions

The following article originally was published March 1 by Denver Daily News.

A hit and run in Denver last December killed a woman’s fetus and led to calls for new legislation. If someone harms a woman’s fetus against her will, whether intentionally or through negligence, what is the proper legal penalty?

We recognize a woman’s right to bear a child, and we condemn as viciously evil the intentional killing of a woman’s wanted fetus. Likewise, when negligence or criminal violence causes the death of a fetus, we regard that as horribly tragic and look for legal recourse.

But the fact that the law should protect a woman’s wanted fetus does not imply that the law should also prohibit women from getting an abortion, though opponents of abortion often argue as much.

The mistake is to think that, because the law should protect a woman’s wanted fetus, therefore the fetus is a person with full legal rights, just like every born child and adult.

Legal protections for a woman’s fetus properly extend from the legal rights of the woman herself. Every woman has the right to life, liberty, and the security of her person. One of a woman’s most profound choices is whether to bear a child. A pregnant woman who wants to bear a child devotes great care and resources to having a healthy baby, and she contemplates her fetus in anticipation of the independent person it will become. Therefore, killing a woman’s wanted fetus, whether intentionally or as the consequence of violence or negligence, violates that woman’s rights.

Likewise, because the woman is an independent person with full rights, whereas her fetus is totally contained within her body and not a biologically separate and independent person, the woman has the right to get an abortion if she chooses.

Unfortunately, some on the religious right have attempted to hijack the issue of fetal protection for backdoor attempts to outlaw abortion. For example, in 2010 Senator Dave Schultheis’s bill attempted to define a fetus as a person in a fetal homicide bill.

Whereas sensible fetal protection laws protect a woman’s rights to her own body and choices, legally defining a fetus as a person strips a woman of her rights. If a fetus is legally declared a person with the right to life, then, logically, the pregnant woman must be legally forbidden from getting an abortion, even if that endangers her health, and even if she must be imprisoned and physically restrained to force her to give birth.

Thankfully, newly introduced House Bill 1256 explicitly avoids conferring personhood to fetuses. Existing laws already criminalize the “unlawful termination of pregnancy,” and last year a Mesa County court sentenced a man to five years in prison for giving his pregnant former girlfriend an abortifacient without her knowledge, the Daily Sentinel reported. [See also my previous post.] The new bill creates four ranges of offense, ranging from recklessness to the deliberate killing of a woman’s wanted fetus.

Bill 1256 has some problems. Rather than outline the general principles applicable to call cases, it contains unnecessary language about committing an offense while driving a vehicle. Moreover, the bill obscures the important distinction between a fetus and a born child by referring to an “unborn child.” Such vague, non-objective language should be removed.

Overall, though, the new bill seeks to more fully protect women against crime and reckless acts. While the law should not be contorted to serve an anti-abortion agenda, it should consistently protect the rights of every born person, including the rights of a pregnant woman either to get an abortion or protect her fetus, as she chooses.

Ari Armstrong blogs at and is the coauthor of the paper, “The ‘Personhood’ Movement Is Anti-Life.”


Scott Evans commented March 15, 2011 at 9:50 AM
If a woman can have her unwanted preborn child killed, why can’t she have her unwanted already born child killed?

Ari commented March 15, 2011 at 10:12 AM
Scott, There’s a reason why I linked to the paper. Please feel free to leave another comment only after you seriously consider those arguments and have something intelligent to say about them. Thanks, -Ari