UC Law Constitutional Quarterly


Alison Tsao


Under the common law, the intentional killing of a fetus by a party other than the pregnant woman did not constitute murder. A child had to be born alive for homicide statutes to apply. The primitive state of medicine during the common law period necessitated this "born alive" rule because doctors could not determine whether a fetus was capable of independent existence before the baby was born. Nor could doctors accurately determine the cause of death of a fetus. The present sophistication of the medical profession has largely removed the difficulties in determining the exact stage of fetal development and whether a fetus died as a result of injuries inflicted upon the pregnant woman by third parties.

Approximately half of the states have enacted fetal homicide, also known as feticide, statutes while the remaining states retain the "born alive" rule. This Note discusses the differences among the feticide statutes enacted by various state legislatures. It addresses the constitutional implications raised by feticide statutes, specifically in terms of equal protection and due process challenges that have been raised by criminal defendants prosecuted under feticide laws. This Note hypothesizes on the policy reasons legislators have enacted feticide laws and tracks the debate between supporters of feticide statutes and abortion rights advocates, who generally oppose feticide legislation. Finally, this Note proposes a model feticide statute to address the constitutional and policy concerns raised by feticide laws.