SP/10/02/18/MD-Fetal-Homicide/Hessler

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Review of Maryland’s Fetal Homicide Law

Therese M. Hessler 02 October 2018

Criminal Law: Homicide and the Unborn Child - Laura and Reid’s Law - SB 533 & HB 748

Homicide is the number one killer of pregnant women in Maryland, yet there is little to no legal recourse available for unborn children who lose their lives through a violent and intentional act perpetrated against their mothers.

In 2005, Maryland passed a fetal homicide law that makes it a crime to kill a viable fetus as the result of an attack on a pregnant woman. Because viability is considered to be around 24 weeks of pregnancy, prosecutors have been unable to charge the perpetrator with fetal homicide for the murder or manslaughter of an unborn child that is carried in the womb any time prior.

Maryland’s pregnancy-associated homicide rate is 10 times the national average.[i] Disturbing statistics point out that in 63 percent of the solved homicide cases of pregnant women, the woman was killed by a current or former intimate partner;[ii] thus was the case in the 2017 murder of Laura Wallen and her unborn son Reid.

A beloved teacher, daughter, sister, and friend, 31-year-old Laura Wallen was excited that she was becoming a mother. She had been seeing her boyfriend, Tyler Tessier, for close to 10 years and in the days before she was murdered, they both attended a sonogram appointment to hear the heartbeat of their unborn son, Reid. Laura was just over four months pregnant.[iii]

After admitting he shot her, Tessier was charged with the murder of his girlfriend, Laura, but due to Maryland’s current law, no charges were able to be brought against him for the death of their unborn son. Determined to honor the memory of their daughter and the grandson they will never know, Laura Wallen’s parents, Gwen and Mark Wallen, decided that if their state protects women who choose [an abortion], the state should also protect women who choose life and want to become mothers.

With the support of local lawmakers, Gwen and Mark decided to introduce legislation (expanding on Maryland’s current fetal homicide law) that would make it a crime to kill a fetus before 24 weeks of pregnancy as a result of an attack on a pregnant woman. In both the Maryland House and Senate respectably, HB 748[iv] and SB 533[v] were introduced during the 2018 General Assembly. These were also known as “Laura and Reid’s Law.”

While drawing bi-partisan support, opposing groups like NARAL Pro-Choice Maryland gave the bills unfavorable reports and warned lawmakers that if passed, these bills would be “a direct assault on the fundamental holding of Roe v. Wade, and endowing such personhood [on the fetus] inescapably diminishes the personhood of the woman, including her rights to liberty, bodily autonomy, and medical decision-making.”[vi]

HB 748 and SB 533 never made it out of their assigned committees for a vote.

There is nothing unique or avant-garde with the legislation Mark and Gwen requested on behalf of their daughter and grandson. 34 states, including California, criminalize fetal homicide before 24 weeks gestation.[vii]

It should be noted that Laura and Reid’s Law was based on a similar law in North Carolina (N.C. Gen. Stat 14-23.1) and was drafted to replace the word “viable” from Maryland’s Criminal Law Code Ann. 2-103[viii] to “unborn child”; which according to N.C. Gen Stat 14-23.1 to 14.23.8[ix] recognizes an “unborn child” as a victim for the crimes of murder, manslaughter, assault, and battery.

However, this was acceptable in North Carolina because N.C. Gen. Stat. 14-23.1 (Ethan’s Law) already defines “unborn child” as a member of the species homo-sapiens, at any stage of development, who is carried in the womb. Maryland has no stated definition of what constitutes an unborn child, which would have made the bill if passed into law extremely hard to prosecute or easily appealed. Including “viable and non-viable” within HB 748 and SB 533 creates a clear definition of a victim as compared to “unborn child” which has previously not been defined in Maryland law.

Current numbers reflect that 77 percent of deaths among pregnant women occur in the first 20 weeks of pregnancy[x] - a statistic that helps prosecutors in fetal homicide cases prove intent. Sadly, in Maryland where fetal homicide cases far extend past the national average, current law continues to extend no justice to the tiniest of victims.

There are several states comparable to Maryland in political composition that should be noted - beginning with California.

California’s Penal Code 187 (a) says, “murder is the unlawful killing of a human being or a fetus with malice aforethought.”[xi]

The words “or a fetus” were added by state legislature in 1970 after the state Supreme Court overturned the fetal-murder conviction of a Stockton man who beat his estranged wife, killing her unborn child in the attack. Keeler argued that the word "human being" in the homicide statute should not be understood to include a fetus that had not yet been born at its time of death.[xii]

The Supreme Court of California agreed. It concluded that, in light of the statute's legislative history, prosecuting the defendant for murder in connection with killing a fetus that had not yet been born would violate the Due Process Clause of the Fourteenth Amendment.

The man was charged and convicted of killing the fetus, but the state's high court dismissed the murder conviction for the unborn child, because California's murder law did not recognize the fetus as a person. In response, the word “fetus” was added to California’s murder statute.

In 1994, the California Supreme Court interpreted “fetus” to apply “beyond the embryonic state of seven to eight weeks” during the ruling of the People v. Davis. Chief Justice Malcolm Lucas said the killing of a fetus, in the course of an attack on the mother, can be murder "as long as the state can show that the fetus has progressed beyond the embryonic state of seven to eight weeks."[xiii]

The majority opinion carefully excepted abortions, though, saying that the ruling did not interfere in any way with women's private procreative choices. "When the mother's privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother's womb from homicide.”[xiv]

Arguments put forward in People v. Ford[xv] in Illinois and State v. Merrill[xvi] in Michigan have both shaped current state fetal homicide law by contending that the fetal homicide statute violates the equal protection clause of the United States Constitution because it fails to distinguish between viable and nonviable fetuses; arguing that under Roe v. Wade a woman can destroy her nonviable fetus without incurring criminal penalties and has an absolute right to an abortion within the first trimester.

The court stated, "Roe v. Wade protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.”[xvii] It was noted that the court in Roe had found the State "has still another important and legitimate interest in protecting the potentiality of human life.”[xviii] The court found the fetal homicide statute sought to protect the potentiality of human life but did so without impinging on the woman's constitutional right to privacy.

They concluded that "the state's interest in protecting the `potentiality of human life' includes protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protects, too, the woman's interest in her unborn child and her right to decide whether it shall be carried in utero. The interest of a criminal assailant in terminating a woman's pregnancy does not outweigh the woman's right to continue the pregnancy.”[xix]

These cases (and many others) have established a clear and defined line between state fetal homicide laws and “abortion rights” voiding any opposing arguments to the expansion of fetal homicide laws and the penalties imposed on those who commit violent acts against pregnant women and their unborn children.

Mark and Gwen Wallen intend to re-introduce Laura and Reid’s Law to the Maryland General Assembly in 2019.

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[i] http://ajph.aphapublications.org/doi/full/10.2105/AJPH.2003.029868

[ii] https://jamanetwork.com/journals/jama/fullarticle/193666?alert=article

[iii] https://wtop.com/maryland/2018/02/boyfriend-murdered-pregnant-md-teacher-seeks-trial-delay/

[iv] http://mgaleg.maryland.gov/2018RS/bills/hb/hb0748f.pdf

[v] http://mgaleg.maryland.gov/2018RS/bills/sb/sb0533f.pdf

[vi] https://prochoicemd.org/laws-policy/md-general-assembly/

[vii] http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

[viii] Maryland’s Criminal Law Code Ann. 2-103

[ix] https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_14/Article_6A.pdf

[x] https://www.womenshealthmag.com/mom/pregnant-women-dying