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Aren’t some fetuses worth protecting?

The other day, I was standing at the bus stop when I saw something that annoyed me. That’s not unusual.

Lots of things annoy me about public transportation, from healthy teenagers who refuse to give up their seats to the elderly to people who try to pay their fares with crumpled $5 bills, expecting change (a giveaway that this is someone whose Lexus is at the mechanic).

But there is the sort of annoyance that just makes you shake your head and move on, and then there is the sort of annoyance that makes you want to wrestle the offender to the ground and risk a conviction for simple assault. On this particular day, I contemplated what an orange jumpsuit might do to my complexion.

There was a woman, so pregnant that she should have paid for two fares, who had a beer in one hand and a lit cigarette in the other. I thought about taking a photo to shame her on Facebook, but the skull-and-flowers tattoo on her bare left calf made me hesitate: This pregnant woman scared me. My three weeks of self-defense classes in 1983 were no match for her.

Why am I telling you this, other than to coax some cheap chuckles? Just bear with me.

This month, the Chester County, Pa., District Attorney’s Office announced it was filing some charges under a rarely used, somewhat controversial law that criminalizes acts that result in the death of a fetus.

Before the pro-choice purists start hyperventilating and reaching for their vaginas in mass panic, I can assure them that Roe v. Wade has not (yet) been overturned. The prosecutor is using a law that holds third parties who commit a crime against a pregnant woman, thereby causing her to miscarry, liable for the death of her unborn child.

Because this comes uncomfortably close to recognizing the humanity of the fetus, legislatures that have passed such “fetal-protection laws” have made sure to include exceptions for the most common form of killing a fetus: elective abortion. In other words, a mother who decides to terminate her pregnancy will generally not be held criminally liable for that termination because Roe v. Wade is still the law of the land.

Nonetheless, pro-choice groups have been vocal in their opposition to these laws and prosecutors because of that ubiquitous slippery slope, the one that we don’t recognize in legalizing same-sex marriage or marijuana, but that will send you squealing like a greased pig into the pit of misogyny and gender discrimination if you give dignity to an unborn child killed by someone other than her mother.

While some fetal-homicide laws do recognize the fetus as a “person,” most seem to focus on protecting the rights of a pregnant woman who actually wants to keep her child. Pennsylvania’s statute includes a variety of crimes against unborn children, including first- and second-degree murder. “Unborn child” is defined as an individual organism of the species Homo sapiens from fertilization until live birth.

Pennsylvania’s law tracks fairly closely the federal Unborn Victims of Violence Act signed into law under George W. Bush in 2004, and which is informally known as “Laci and Conner’s Law” after Laci Peterson, the pregnant woman murdered by her husband, Scott Peterson.

Opponents of these laws feel that it’s enough to charge someone with a crime against the woman and ignore the more troublesome, unseen child. They fear people — like me, in fact — who think that pregnant women who make reckless decisions while custodians of a human life they’ve helped to create should be held criminally liable for damage to that child.

In the current climate, that’s unlikely to happen. While there have been prosecutions for the most egregious acts — smoking crack, shooting heroin or trying to commit suicide while pregnant — most of these laws are aimed at seeking justice for those who have long been denied it by a society that shrinks back from the harshest of truths: A pregnancy involves more than one human being.

This frightens abortion-rights supporters, because they have spent several generations promoting the opposite idea, namely, that a pregnant woman should have virtually complete autonomy over what happens to her body during the nine months that another life is forming within it.

Here is one example of that reasoning from Farah Diaz-Tello, a lawyer with (what irony!) National Advocates for Pregnant Women, who argued in Mother Jones that “charging a woman with manslaughter for using drugs while pregnant is just a backdoor way of establishing legal personhood for fetuses.”

And I would argue, so what’s wrong with that?

Those without voices or status in society deserve at least the minimum level of respect, an understanding that their lives, and their loss, matter.

And that’s regardless of what Mommy Dearest might think.

Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News.

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