A Question of Fetal Rights, or Politics?

The contractions were coming regularly and Janey Thornsbury was telling her husband, Troy, each time one squeezed her tight. They were on their way to the hospital, excited and nervous. Thrilled. Ten minutes and they’d be there.

They were at a red light. Troy was waiting to turn left. Janey was breathing through contractions. They heard a screech. They turned, split-second, saw a pickup truck run the red light, hurtle toward them--”Oh, God,” she said, and it hit them.

Veronica Jane Thornsbury died instantly. Her obstetrician raced to the scene to do an emergency Caesarean section. But the baby, a girl, was dead too. A double tragedy--and one that may reverberate far beyond this small coal mining town in the remote reaches of Appalachian Kentucky. For the accident that shattered the Thornsbury family has raised an issue of national import: Should a fetus be granted legal status separate and distinct from its mother?

Or, in the starkest terms: Is a fetus a person?

Did the driver who smashed into the Thornsburys’ car cause one death, or two?

These are emotional questions, with bold implications. They are being debated in courthouses and legislative halls across the country. And now too on the floor of Congress. The House last month passed the Unborn Victims of Violence Act, which would recognize a fetus at any stage of development as a separate victim, distinct from its mother, if it was harmed during the commission of a federal crime. President Bush has said he would sign such a bill if it makes it through the Senate.

Meanwhile, lawmakers in at least 15 states weighed unborn victim bills of their own during recent legislative sessions. Most of these proposals didn’t make it out of committee. But two dozen states, including California, already have laws on the books that treat fetuses as independent victims.

Just this month, for instance, a San Diego man was charged with murder for kicking and punching his pregnant girlfriend in the stomach five days before her due date. She survived, but the baby girl she was carrying died. So, under California law, the boyfriend was charged not only with assault but with homicide.

Also this month, in Missouri, St. Louis County prosecutors are weighing whether to seek a death sentence for a man accused of stabbing his pregnant girlfriend to death. She was in her first trimester of pregnancy; the fetus was about 12 weeks old. But Missouri law treats a fetus of any age as a victim, so the assailant faces double murder charges--and multiple homicide is a capital offense.

In a similar case in Utah, prosecutors may seek a death sentence for a man charged with fatally shooting his ex-girlfriend as she sat at her office desk. Two bullets hit her stomach, killing a fetus of 13 to 15 weeks’ gestation. As in the Missouri case, the fetus was not viable outside the womb and could have been legally aborted. Yet Utah’s law considers any “unborn child” a potential victim.

Like the federal bill and other state statutes, Utah’s law exempts abortion and does not permit charges to be brought against a pregnant mother who causes her own fetus’ death.

“We want to protect the fetus as a human being with certain rights and dignities, while still protecting the right of the mother to make decisions about her body,” explained Blake Gunderson, a Fresno County prosecutor who recently won a double murder conviction against a woman who dismembered a pregnant mother.

Gunderson frames the issue this way: “Does a fetus deserve any less protection than a grown adult, just because it hasn’t been born yet?”

Unborn victim laws deeply disturb many abortion rights activists because they enshrine into law the concept of fetus as person. Critics see that as a brash first step toward criminalizing abortion.

“The law cannot hold both that a pregnant woman is two persons and, at the same time, allow her to have an abortion,” said Heather Boonstra, senior public policy associate at the Alan Guttmacher Institute, a nonprofit corporation for reproductive research, policy analysis and public education.

The federal Unborn Victims of Violence Act “is on a collision course with Roe vs. Wade,” agreed Monica Hobbs, legislative counsel for the Center for Reproductive Law and Policy. “If it becomes law, we would have the debate about where life begins in federal courthouses all across the country.”

Hobbs and others offer this alternative: Why not stiffen the penalties for crimes against pregnant women without defining the fetus as a person? At least seven states, including Indiana, New Hampshire and Virginia, do just that. But anti-abortion activists insist such laws are inadequate because they deny the fetus true justice.

“You treat the fetus as an appendage; you exclude it from the category of human beings if you leave it out of homicide laws,” argued Clarke Forsythe, president of Americans United for Life.

His group and others that oppose abortion have been pushing the fetal rights movement for some 15 years, with increasing success. Eleven states, from Arizona to Pennsylvania, recognize unborn children as potential victims from the moment of conception. In one case, in Minnesota, such a law was applied on behalf of a fetus just 28 days old--a stage when even the mother may not have known she was pregnant.

Such laws are usually limited to criminal cases involving fetal harm. But the principle they are based on--legal status for the unborn--reverberates broadly and has touched off wide-ranging social policy debates.

Should a woman who smokes crack during her pregnancy be charged with child abuse--or with murder if the fetus dies? Can the estate of a stillborn child sue an obstetrician for negligent care? Does an unborn child have the right to sue for stress from a car crash she lived through in utero?

Local courts in various states have upheld fetal rights in cases involving those issues. Though appeals of some of those cases are pending, the precedents they have set alarm abortion rights advocates.

“I do not consider fertilized eggs to be human beings,” said Jean Reith Schroedel, chairwoman of the politics department at Claremont Graduate University and author of a book on fetal rights. “I find it troubling that women’s rights are to be balanced against fertilized eggs.”

Opponents of blanket prenatal protection also complain that it’s unfair to give the fetus special rights when even the mother may not know it exists. If a woman is not visibly pregnant, they ask, how could a man know he was committing murder by punching her in the stomach? But proponents counter that people are punished all the time for acts they didn’t realize would be deadly; an arsonist can be charged with murder, for instance, if he burns down a building with people inside, even if he believed it was empty.

Thirteen states avoid the fertilized egg quandary by granting legal status only to fetuses that reach a certain age. In California, the fetus must be at at least seven weeks’ gestation. In Massachusetts, it must be viable. In Michigan, it must be “quick,” meaning its movements must be strong enough for the mother to feel.

Most of the remaining states rely on the common-law tradition that a fetus does not have rights until it is “born alive” and lives at least a moment outside the mother’s womb.

Here in the soft green mountains of Appalachia, a grieving Troy Thornsbury comes down firmly on the side of fetal rights from conception. His baby never breathed a moment on her own. But to him, she was a baby all the same, a person with rights, not some anonymous, disposable fetus.

He heard her heartbeat week in and week out. He saw her squirm on the ultrasound screen. He felt her kick. Did he ever. At night, Janey would curl up next to him, her belly to his back. Every morning she would ask anxiously whether the baby had been active. Lord, Janey, he would tell her, laughing, don’t worry. That baby kicked about 100 times last night.

They spent months picking out the perfect name. Janey bought Mickey Mouse crib sheets. They explained to their 2-year-old son, Benjamin, that he would soon be a big brother. Ben took to lifting up Janey’s shirt so he could kiss her rounded stomach. Mommy, he would say, I’m kissing the baby.

Janey’s water broke on a bright Saturday, March 24. She and her husband left for the hospital about 2 p.m., full of expectant joy. “We wanted that baby,” Troy says now, voice taut with unspilled tears.

After the accident, nurses wrapped the tiny corpse in a pink blanket and presented it to the dozens of relatives sobbing in the hospital waiting room. Haley Natosha Thornsbury weighed 7 pounds, 5 ounces and measured 21 inches long, and, to her dad, she looked like big brother Ben.

Troy held her. He took pictures.

One of those photos--Haley in the blanket, eyes closed, fingers curled in that way infants have--was published in the local paper. Troy didn’t see how anyone could look at it and say his baby wasn’t a person, every inch deserving of justice.

Local prosecutors agreed. They charged the pickup driver, Charles Morris, with two counts of murder. He pleaded not guilty last week. If convicted, he faces a maximum of two consecutive life sentences.

“You have to understand,” prosecutor John Hansen said, explaining the second count, “the baby was already in the birth canal. . . . It was not just viable, it was a person. Heck. It was a baby.”

But not everyone agrees. Kentucky law does not provide for murder charges in fetal deaths. A bill to grant unborn victims legal status has been introduced in the state Legislature. For now, though, the “born alive” rule stands. So the defendant’s lawyer, Stephen Owens, argues that Haley’s death should not count against his client.

“A fetus is not considered a person under Kentucky law,” he said. “This is the kind of case where you have to try it based on the facts, not based on how you might feel when you see the photo [of Haley] in the paper.”

A District Court judge is expected to take up the issue soon.

Troy Thornsbury, meanwhile, has moved with Ben into his mother’s house. He can’t go back to his own home, not yet. “My whole closet is full of diapers and wipes and baby lotion.”