An American tragedy.

Photographer: Aaron Ontiveroz/The Denver Post via Getty Images

The Unborn Can Be Murdered, Too

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of “The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.”
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A horrific crime has led to a heated debate in Colorado.

Dynel Lane has been arrested for luring Michelle Wilkins into her home, and then cutting her 7-month-old unborn child out of her womb. The baby, whom Wilkins had named Aurora, died. But Lane isn't being charged with murder. Colorado law doesn't allow a murder charge for an unborn child unless it drew breath outside the womb, which is disputed in this case.

The Colorado legislature is now considering a bill to fill the gap in the law, so that the state would treat attacks on pregnant women as having two victims. That is already the practice of 37 other states and the federal government.

NARAL Colorado, the state affiliate of the national organization that favors legal abortion, makes three arguments against the change. It says that the bill is a stealthy attempt to enact the kind of personhood legislation that Colorado voters have repeatedly rejected, most recently in a referendum in November. It says that such laws have led to the imprisonment of pregnant women in other states. And it says that the bill is unnecessary, because Colorado already has tough laws on crimes against pregnant women. The group backs up these points by referring to a New York Times op-ed article opposing the bill by Northwestern University law professor Deborah Tuerkheimer and a post by abortion-rights activists Lynn Paltrow and Sara Ainsworth.

All three arguments are weak.

The personhood initiative on the ballot -- which would have classified unborn babies as people in the state's criminal code -- contained no exemption for abortions, and thus would have criminalized them if it had passed and the courts had let it stand in full. The bill now before the legislature, on the other hand, contains an exemption for any "medical procedure" or "act committed by the mother of her unborn child," so it wouldn't criminalize abortion.

Most of Tuerkheimer's examples of laws that have put pregnant women in jail are off point: They're intended to protect fetuses from, for example, substance abuse by their mothers. Whether or not such laws are a good idea -- and some arguments against them seem plausible -- they're different from laws that treat assaults on pregnant women as assaults on their unborn children.

Paltrow and Ainsworth cite three examples in which they say state governments mistreated pregnant women. Two of them, in Utah and Iowa, seem to have involved temporary prosecutorial overreach. That's a risk to consider when any law is being debated, but because that risk applies to all laws it can't be a decisive argument against any of them. The third case involves an Indiana law that lacks the Colorado bill's exemption for acts committed by the mother.

The dispute over whether the bill is necessary gets to the core philosophical question. Proponents of the bill don't just want attacks on pregnant women punished; they want unborn children to be recognized as victims of crime. Abortion-rights activists fear that recognizing fetal personhood, even in this context, sets the law on a slippery slope toward prohibiting abortion. Opponents of abortion obviously hope that it will have this effect too.

But abortion is just as legal in the states that recognize crimes against unborn children as it is in the minority of states that don't. And the strongest arguments that people make for legal abortion don't apply to these crimes. Most advocates of legal abortion put a woman's right to decide whether to continue a pregnancy at the center of their case: Restrictions on abortion are held to violate the pregnant woman's autonomy. Nobody on either side of the abortion debate can maintain that the Colorado bill does that.

"In the case of the Colorado stabbing, the victim, Michelle Wilkins, suffered an injury that was entirely entwined with her pregnancy," writes Tuerkheimer. She goes on to say that the "core harm" of such crimes is that the mother’s "reproductive freedom is trampled." It seems unlikely that many pregnant women who are assaulted would reach for this kind of language -- whatever their view of legal abortion. Most of them would say that they had suffered an attack on themselves and their unborn children, some of whom already had a name.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Ramesh Ponnuru at rponnuru@bloomberg.net

To contact the editor on this story:
Timothy Lavin at tlavin1@bloomberg.net