Discuss the following questions concerning the state of fetal homicide law. Whil

Question

Discuss the following questions concerning the state of fetal homicide law. While some discussion of abortion is natural in this assignment, be sure that you answer the questions about fetal homicide law, which is the focus of this section.

3. There are 3 standards used to determine whether a fetus is a “person” for purposes of homicide law: the born-alive standard, the viability standard, and the conceptions standard. Discuss each standard and explain which standard should be used in modern statutes.

Explanation / Answer

Feticide Laws

Born-alive Standard

The "born alive" rule is a common law legal principle that holds that various criminal laws, such as homicide and assault, apply only to a child that is "born alive".

The born alive rule implicates a substantive aspect of criminal offenses. Under this rule, if a child is born alive, despite an attack upon it and an injury to the mother while it was in the mother's womb, and the child thereafter dies as a result of the prenatal injury, it is deemed that a homicide has been committed.

Advances in the state of the art in medical science, including medical knowledge related to the viability of the fetus, and the ease with which the fetus can be observed in the womb as a living being, treated clinically as a human being, and (by certain stages) demonstrate neural and other processes considered as human, have led a number of jurisdictions – in particular in the United States – to supplant or abolish this common law principle.

Viability Standard

As the word is used in United States constitutional law since Roe v. Wade, viability is the potential of the fetus to survive outside the uterus after birth, natural or induced, when supported by up-to-date medicine. Fetal viability depends largely on the fetal organ maturity, and environmental conditions.[2] Another definition for viability, as used in the medical phrase limit of viability, is the expectation that a fetus has an equal chance of surviving and not surviving outside his or her mother's womb.

The viability standard sets fetal viability as the point at which states can begin to ban abortion outright. Thus, abortion bans prior to fetal viability are on their face unconstitutional.

Conceptions Standard

Anti-choice advocates have long invoked the idea of fetal “personhood” and the notion that life begins at conception as a basis for their opposition to abortion rights. But these cases that directly challenge the viability doctrine reflect a renewed push in the legal fight for “personhood.”

Modern statutes would do well to adopt the conceptions standard as it is the most humane of the three. The fact that we’re seeing mutations of this argument show up in criminal prosecutions, in addition to the contraception argument, shows this is a multi-faceted legal strategy at work. So far, federal courts have held the line and upheld viability as the point at which the state can ban abortion outright, and when put to voters “personhood” initiatives have failed, repeatedly. But we can’t let those victories suggest that the threat posed by “personhood” advocates has abated. Because it hasn’t.

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