The San Francisco Chronicle reported Sunday that a Los Angeles man, Joshua Woodward, has been arrested for the intentional homicide of his unborn child. As public comments on the case posted to the online Chronicle story show, this kind of prosecution provokes public confusion. Here are some answers to questions not addressed in the Chronicle’s coverage.

Is this a new phenomenon?

No. Fetal homicide or “unborn victims of violence” laws have been enacted in 37 states. And prosecutors actively enforce and use them.

Since the mid-1980s, when we drafted model bills to counter fetal homicide, Americans United for Life has been at the forefront of developing and defending legislation to protect pregnant women and their unborn children from violent crime. We have aided legislators by providing scholarly analyses of such legislation, pointing out that Roe v. Wade doesn’t block state laws protecting unborn victims outside the context of abortion. My 1987 Valparaiso Law Review article on such statutes has been cited by a number of courts in upholding fetal-homicide laws.

Due in part to our efforts, the status of fetal-homicide law has undergone a substantial change between the 1970s and the 1990s. Back in the 1970s, courts often applied Roe to strike down or limit fetal-homicide laws, on the basis that the states couldn’t protect the unborn by law at all. By the 1990s, virtually all state and federal courts recognized that Roe only applied to the abortion context and that fetal-homicide laws were enforceable as long as they weren’t applied to abortion.

How long has California’s law been in effect?

California’s statute was enacted in 1970, before the Supreme Court’s decision in Roe v. Wade in 1973 legalized abortion nationwide. Legislators were provoked by California court’s throwing out a homicide charge for killing an unborn child, relying on the common-law born-alive rule.

What’s the “born-alive rule”?

The born-alive rule, a rule of medical evidence, was first adopted in 1600 due to primitive medical conditions which made it difficult to distinguish between a child killed in the womb and a child stillborn from natural causes. The factual difference was critical, in a time of high infant mortality, because a charge of homicide was a capital crime. The born alive rule meant that a homicide charge could only be brought if the unborn child was “born alive” and died thereafter, so that the evidentiary causes could be more clearly determined.

How can such charges be brought if Roe v. Wade legalized abortion in every state?

Roe only applies to a voluntary abortion that falls within the mother’s “right”; Roe does not apply to an unborn child killed in the non-abortion context and does not protect a third party assailant who kills an unborn child.

At what point in pregnancy can the states protect the unborn child under fetal-homicide laws?

Because Roe does not apply to the involuntary killing of the unborn child, it means that the states can protect the child in the non-abortion context from conception. In fact, 25 of the 37 states with fetal homicide statutes have enacted legal protection from conception. California’s statute has been interpreted by California courts as applying to an unborn child as early as 8-10 weeks gestation. Since investigators in the California case estimate that the unborn child was approximately 13 weeks old, this killing will likely fall within the statute (assuming other facts in the investigation allow prosecutors to otherwise move ahead).

These cases also demonstrate that homicide or fetal-homicide statutes are more significant, as a practical matter, for protecting the unborn child than state “personhood” amendments,” because homicide or fetal homicide statutes actually prohibit the killing itself (personal or private behavior that falls within the criminal law), while state personhood amendments only limit action taken by the three branches of government.

In this post-Roe environment, where abortion for any reason is legal through all nine months of pregnancy, what do fetal-homicide laws ultimately accomplish?

A great deal. First, unlike Roe v. Wade, they require that the law–in this case, homicide law–actually treat the unborn child as a human being strictly speaking. Second, they provoke public education about the schizophrenia between Roe and the effective state enforcement of fetal-homicide laws in 37 states. This is particularly significant in a state like California, which passed its fetal-homicide law in 1970, before Roe and before politics in that state swung radically to the left. Last, and most importantly, they increase legal protection of the unborn child, beyond what it was before Roe. And they are strongly supported by popular opinion.

Received an email from facebook last night that the Americans United for Life cause on facebook now has 500 members. It’s great to pass the 500 mark, but I know there are a lot more people on facebook who would be interested in joining the AUL cause. If that’s you, join up and tell your friends.

BTW, AUL is also on twitter, Linked In, Flickr, and YouTube.

Everyone has something they would like to personally accomplish – lose weight, quit smoking, run a marathon – but just can’t seem to get the job done.

Now, thanks to the new website stickK.com, people who fail at some personal goal they’ve set for themselves and oppose the pro-life work of AUL are sending contributions to us.

The website’s premise is that its users set a goal for themselves and put a specific amount of money on the line.   If they meet their goal, they pay nothing.  If they fail, they lose the money to one of four options of their choice – a friend, a foe, a random “do-good” charity, or a specific “anti-charity”.

People who send the money to a friend or foe get to choose the exact person to whom the money will go.  If they choose to send their money to a charity, it’s randomly sent to one of eight charities like the American Red Cross or Doctors Without Borders.

However, if they chose an anti-charity, the user specifies which charity they would most hate to support.  AUL is on the anti-charity list, along with other luminaries like NARAL, the NRA Foundation, and both the Clinton and Bush Presidential Libraries.

So far, people who hate AUL have sent in $3,135.87.  It will be interesting to watch how much this number changes as the website becomes more popular with people trying creative incentives to help them improve their lives.

Americans United for Life proudly announces its 2009 Fellows:
 
            *  Richard Lender is a second year law student at the Columbus School of Law at Catholic University.  Richard holds degrees in political science, history and theology.  He has studied abroad in both New Zealand and Poland and has completed legal internships with the U.S. Commodity Futures Trading Commission and the National Association of Broadcasters.
 
            *  Patrick Nagorski is a second year law student at Ave Maria School of Law and a commissioned reserve officer in the U.S. Army.  He received his undergraduate degree from the University of Notre Dame.  He is currently interning with the Honorable Annette Berry, a Circuit Court judge in Michigan.
 
The AUL Fellowship Program provides a prestigious summer fellowship for first and second-year law students, training and educating the next generation of pro-life leaders.  Each year, the program identifies future leaders through a competitive application process, deepening their commitment to life and equipping them with legal and policy experience to prepare them for future leadership roles in the pro-life movement.

In a recent column, AUL Board member George Weigel writes of the late Pope John Paul II and how his view of America evolved during his life.  One particular observation of the beloved pontiff (from 1997) seems particular apropos as America inaugurates a new President:

No expression of today’s [American] commitment to liberty and justice for all can be more basic than the protection offered to those in society who are most vulnerable.  The United States of America was founded on the conviction that an inalienable right to life was a self-evident moral truth, fidelity to which was a primary criterion for social justice.  The moral history of [America] is the story of [its] people’s efforts to widen the circle of inclusion in society, so that all Americans might enjoy the protection of law, participate in the responsibilities of citizenship, and have the opportunity to make a contribution to the common good.  Whenever a certain category of people — the unborn or the sick and old — are excluded from that protection, a deadly anarchy subverts the original understanding of justice.  The credibility of the United States will depend more and more on its promotion of a genuine culture of life, and on a renewed commitment to building a world in which the weakest and most vulnerable are welcomed and protected.

Let’s pray the President Obama and his Administration take heed of this wisdom.

According to the website, HowMuchTime.org, “If abortion is made illegal, the woman having one would be a criminal.” The website poses the question: “How much time should she do?”  
 
 This website is yet another example of how abortion advocates purposefully mislead women and lie to the American public. It is no surprise that the domain name is registered to someone with a Planned Parenthood Rocky Mountains email address.

Let these “myth-busters” set the record straight:

Myth: If abortion is made illegal, women will be criminalized and put in jail.

Fact: If abortion is made illegal, women will not be prosecuted and put in jail for having an abortion. Historically, women have never been prosecuted for having abortions. Before Roe v. Wade, only abortion providers were prosecuted for illegal abortions. In fact, women who had abortions before Roe routinely and openly filed lawsuits for medical malpractice against abortion providers after having a botched illegal abortion. Women who had abortions before Roe did not hide from the law, because they knew that they would not be prosecuted under the law for having an abortion. Without exception, current pro-life laws and legislation do not permit the prosecution and imprisonment of women for having an abortion.
Myth: If Roe is overturned, abortion will be illegal.

Fact: If Roe is overturned, abortion will be legal in at least 42 states. In fact, state abortion prohibitions that existed prior to Roe would be enforceable only in (at most) eight states. If Roe is overturned, the abortion issue will change from being a federal issue subject to the dictates of the United States Supreme Court to being an issue controlled on the state level. The states’ power to legislate on abortion will finally be restored.

 It’s about time that women learned the truth about abortion and the legal implications of a reversal of Roe v. Wade. In response to the question, “How much time should she do?” my reply is: “She should and would serve no time at all.”

UPDATE: Voter Guide Program Details

Chicago, Illinois — Americans United for Life today announces the availability of $500,000 for 501(c)(3) organizations who wish to create and distribute non-partisan educational voter guides for the upcoming elections.

AUL President Dr. Charmaine Yoest said, “Voter guides are a way to empower voters to make well-informed choices on election day. Pro-life Americans want to get beyond the spin and know the truth, based on the record, about where the candidates stand.”

Daniel McConchie, AUL Vice President & Executive Director, added, “Pro-life voters are a key constituency that both Democrats and Republicans ignore at their peril. Americans United for Life is looking forward to helping pro-life Americans across the country vote their values in this election.”

AUL spent $215,000 on creation and distribution of more than 2.8 million voter guides in 2006. With the additional investment this year, AUL plans to distribute more than 6 million voter guides nationwide.

Organizations interested in applying for voter-guide funds should contact Daniel McConchie by September 12.

For more information or to apply, contact:
Daniel McConchie
Americans United for Life
310 S. Peoria St.
Ste. 500
Chicago, IL 60607
312-568-4700

We had a great time at FRC’s Washington Briefing, and I just can’t thank Joe Carter, Jared Bridges, Charmaine Yoest and everyone else at FRC who worked so hard to make the New Media Row such a success. So many bloggers, podcasters, and video podcasters showed up that they had to bring out more tables to hold them all.

Below is a mostly complete list of bloggers who covered the event (from FRC’s Blog). I’m sure there were others blogging from the conference, and a few who, like me, are blogging about the event now that they’ve returned home.

• PoliPundit.com
• Randy Thomas is posting at randythomas.org
• Erick Erickson of Redstate
• Ana Marie Cox from Time’s Swampland Blog
• Jim Geraghty of NRO’s Campaign Spot
• Anastasia Uglova and J.P. Freire from NBC Universal’s Politalk Blog
• Matthew Anderson of Mere Orthodoxy
• Dan Nejfelt from Faith in Public Life
• Justin Hart of Race 4 2008 and mymanmitt.com
• Melinda Penner and Amy Hall from Stand To Reason
• Democratis
• Nathan Bradfield from Church and State Blog
• N.Z. Bear from The Truth Laid Bear
• Mark Ambinder of The Atlantic
• Byron York from NRO’s The Corner
• Philip Klein of The American Spectator’s AmSpecBlog
• Jill Stanek of JillStanek.com
• Sharon Soon from Conservatives With Attitude
• Mary Katharine Ham, Amanda Carpenter, Matt Lewis, and Kevin McCullough of Townhall.com
• Soren Dayton from eyeon08.com
• The group from Evangelicals for Mitt
• Jon from Huckabee 08 – A Man of Hope
• David Weigel of Reason magazine’s Hit and Run blog
• Jack Yoest from Management Training of DC
• Bob Ellis of Dakota Voice

You’ve probably seen some of the media coverage of the event, and the bloggers listed above provide additional coverage. If you’d like to see any or all of the talks first-hand, The American Family Association has all of the video on their website for a suggested donation of $9.95.

AUL is sponsoring New Media at the Family Research Council’s Washington Briefing.

Here’s the list of official bloggers that will be on New Media Row:

• David All – TechPresident
• Marc Ambinder — The Atlantic
• Nathan Bradfield — Church and State
• Soren Dayton — eye0n08.com
• Erick Erickson — RedState
• Matthew Eppinette — Americans United for Life Blog
• Jim Geraghty — NRO’s Campaign Spot
• Justin Hart — My Man Mitt
• Jon Henke — Fred File [the official blog of Fred08]
• Michael Illions (aka ” A.J. Sparxx”) — Polipundit and Conservatives with Attitude
• Dan Nejfelt — Faith in Public Life
• Rob Neppell (aka “NZ Bear”) — TruthLaidBear, The Victory Caucus, and Porkbusters
• Melinda Penner and Amy Hall — Stand to Reason
• Anastasia Uglova — NBC Universal’s PoliTalk.com

For more on the Washington Briefing, check the website, speaker’s list (quite a lineup), and schedule. Saturday at 4:15 I’ll be participating in a panel discussion on the political blogosphere with David All, Erick Erickson, Jon Henke, and Rob Neppell (FRC’s Charmaine Yoest will moderate).

If you register online use promotional code PNCH4CRD to get in for $50 (instead of the usual $95).

My good friend Joe Carter provides a 60 second review of Kristen Day’s Democrats for Life: Pro-Life Politics and the Silenced Majority. Joe concludes:

Pro-life Democrats should read this book to learn how their party lost its moral footing on the issue of abortion; pro-life Republicans should read it as a cautionary tale of what could happen to the GOP once the pro-abortion crowd is welcomed into the Big Tent.

From Valparaiso University Students for Life:

On Saturday, November 3, Professor Hadley Arkes from Amherst College in MA will be speaking at Valparaiso University in Valparaiso, IN as part of VU Students for Life’s fall speaker series. Professor Arkes is a very well-known and well-respected author, speaker, and professor in the field of law and bioethics. You can go to our webpage at www.valpo.edu/student/vusfl to read more about him. He will speak at around 12:45/1pm that afternoon immediately following a free, informal luncheon.

I want to invite each of you and your respective organizations to attend this exciting event. Professor Arkes does not often make it to the Midwest region so I hope you will take advantage of this wonderful opportunity to hear him speak.

Please feel free to forward this information on to other people or organizations who might be interested in this event. Also, if you are interested in coming and are able to come up with a specific number of people attending, it would be very helpful for us to have an idea of how many people to expect. We would love to have as many people as possible and also would like to have enough food and seats for everyone!

This is a great opportunity. Professor Arkes is one of the leading Pro-life intellectuals in the United States (bio). If you can attend, please do.