Fetal homicide law leads to murder guilty plea–why not an equal protection challenge?

abortion, Roe v. Wade

A man in Ohio who tried to force his pregnant girlfriend to have a late-term abortion has pleaded guilty to attempted murder of his unborn child under Ohio’s fetal homicide law. The man even forced his pregnant girlfriend to the abortion clinic at gunpoint.

Pro-lifers have long referenced the cultural schizophrenia which is evidenced by fetal homicide laws, which are on the books in 35 states, plus the federal Unborn Victims of Violence Act, or Laci and Connor’s Law, which defines children in utero as victims of federal crimes of violence. This case in Ohio throws that legal and social split into stark relief: if a woman wants an abortion and a doctor is willing to provide one, violently killing her child in the womb is an elaborately protected right. But if a woman does not want an abortion, it is homicide in most jurisdictions to kill her unborn child, even if it were done in the very walls of a legal abortion clinic.

To make the contrast even sharper: this man in an Ohio abortion clinic who wanted to hire a doctor to kill his unborn child has now pled guilty to attempted murder–but a man, possibly many men, on the same day, standing in the same clinic, paid for the same doctor to kill their unborn children with the full approbation of the law.

This is a textbook example of a violation of the Equal Protection Clause of the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Basically, that means everyone is equal under the law–the law may not arbitrarily discriminate in protecting Person A’s life or liberty and not Person B’s. Pro-aborts have long desired that the putative constitutional right to abortion be reset on grounds of “equal protection” for women rather than privacy and liberty. Ohio’s fetal homicide law has been on the books since 1996–why have pro-lifers not yet brought to court the obvious equal protection challenge to legal abortion that fetal homicide statutes represent? Fetal homicide laws, constitutional even under current abortion jurisprudence, render the unborn persons with rights to be protected by the State. Nothing is more arbitrary discrimination than allowing the will of a private citizen to dictate whether another person’s killing is murder or not.

Ironically, men convicted under fetal homicide laws have brought numerous and unsuccessful legal challenges against fetal homicide laws based on equal protection claims–equal protection of themselves to abortion doctors, that is. The abortion industry also tried to challenge such a law in Missouri and was rebuffed vigorously by the Supreme Court in Webster v. Reproductive Health Services (1989). Thus, there is a significant body of precedent, even post-Roe, that states may afford legal protection to unborn children as victims of crimes. Yet the presence of legal abortion in every state creates an equal protection conflict with these laws that could not be clearer.

As I have written before, the Supreme Court will almost certainly be called upon to revisit Roe v. Wade and the putative constitutional right to abortion in the very near future, and the Court may very well scrap Roe‘s precedent once and for all. The Desoto Times Tribune indicated last week that Mississippi will pass a Personhood Amendment to ban abortion “in a landslide” this year. Any effort to overturn Roe through pre-viability 20-week bans as in Nebraska or other states, heartbeat bills as in Ohio, or Personhood Amendments like in Mississippi would only be strengthened by concurrent challenges based on equal protection and fetal homicide laws with their wealth of precedent. Put on your Sunday best everybody, we’re going to court.

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