Texas Appellate Court Upholds State's Feticide Law

Main Category: Abortion
Also Included In: Medical Malpractice / Litigation
Article Date: 18 Feb 2008 - 7:00 PDT

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For the second time in four months, the Texas Court of Criminal Appeals upheld a state law that gives a fetus legal standing, the AP/Houston Chronicle reports.

The case involves Gerardo Flores, who was convicted of two counts of murder and sentenced to life in prison for repeatedly stepping on the abdomen of his 16-year-old girlfriend in 2004 to induce a miscarriage. According to the AP/Chronicle, the case also is notable because the girl involved in the case, Erica Basoria, gave sworn statements that she was a willing accomplice (Vertuno, AP/Houston Chronicle, 2/13). However, prosecutors believe that Basoria's defense might have been a "classic case of a battered woman protecting her abuser," the Austin American-Statesman reports (Vertuno, AP/Houston Chronicle, 2/13). Basoria cannot be charged for terminating her own pregnancy under the law, which Gov. Rick Perry (R) signed in June 2003. The law defines a fetus as an individual "at every stage of gestation from fertilization until birth" (Daily Women's Health Policy Report, 6/9/05).

The court rejected Flores' claim that the law is improperly based on religious opposition to abortion. Flores' appeal also argued that the law violated his equal protection rights because he could be prosecuted and Basoria could not even though both took steps to terminate the pregnancy. (AP/Houston Chronicle, 2/13). The opinion noted that a jury had rejected that assertion and it couldn't be raised on appeal. Presiding Judge Sharon Keller in the opinion wrote, "Only if the acts were consensual could (Flores) argue that the statute treated him and Basoria unequally" (Lindell, Austin American-Statesman, 2/14). The opinion also noted that since Flores raised the claim only in a pretrial hearing and not during trial, he could not raise it on appeal (AP/Houston Chronicle, 2/13). Judge Cathy Cochran, in a concurring opinion, said that while she agreed with the opinion, Flores should have been allowed to raise that issue on appeal (Vertuno, AP/Houston Chronicle, 2/13).

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Joe Pojman -- executive director of the Texas Alliance for Life, which helped draft the law -- said the law is constitutionally sound and working as intended (AP/Houston Chronicle, 2/13).

Jay Brandon, Flores' lawyer, said the court appeared to have "dodged the constitutional issue," adding that the opinion acknowledged evidence that the death could have been caused by Basoria. "The most significant issue remains: the fact that [Flores] may not have" terminated the pregnancy, Brandon said. He added that he would talk with Flores' family about the next step, which could be an appeal to the U.S. Supreme Court or a petition for a writ of habeas corpus to state courts (Austin American-Statesman, 2/14).

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