We have a case that has been developing over the past few days and it is a first for us, thank God! A woman went to one of our local hospitals in labor. She admitted to the Doctor and nurses that she had consumed a large amount of Cyotec (an ulcer medication she bought in Mexico to induce abotion). She refused any medical treatment to prevent the baby from being born and she refused any life saving medical treatment for the baby. The baby lived two hours. The Doctor estimates the age of the baby to be 24 weeks. We have sent the baby for an autopsy and toxocology testing, but the results won't be back for weeks and we need help with how to proceed. Anyone out there had a case like this or have any advice about what our next step should be?

You should contact your local senator and state rep and see if they will support an amendment to the Penal Code that will, in some manner, permit a criminal prosecution for the death or injury of a fetus.

For the last several sessions, there have been such bills filed. Sen. Steve Ogden has gotten the farthest, by amending the assault statutes to recognize an enhanced punishment for injury to a pregnant woman.

Now, your case might not create as sympathetic an audience in the legislature. Most of the examples have involved pregnant women injured by a drunk driver or a abusive spouse. Your case involves the much more difficult question of prosecuting an abortion conducted outside the procedures recognized by medicine or law.

Abortion rights groups are suspicious that these new laws are an attempt to overrule abortion. I don't think that is true.

There is a gap in the criminal laws, wherein a woman's fetus is not recognized as an individual or a part of the woman's body (see definition of serious bodily injury). Sen. Odgen has just been trying to close that gap.

What about the Corpus Christi case involving intoxication manslaughter...baby dies shortly after a premature birth caused by the accident and dies of injuries caused by the accident?

The case Rob is referring to is Cuellar v. State, 957 S.W.2d 134 (1997).

In that case, though, the baby was born alive and then died. When the baby is not born alive, it does not meet the definition of an individual and is considered to be part of the woman's body. Unfortunately, a fetus is not considered an organ or limb of the woman, so any injury to the fetus doesn't get legally recognized.

I thought the baby lived two hours....

In reading back over the intial entry, I assumed that the baby lived for two hours as a fetus still in the mother. OK, so we are saying that the baby was born alive and lived for two hours. That sure should qualify as a child under the injury to a child law.

And under that statute, an act such as this qualifies as a defense only if it was reasonable medical care through a physician or part of some accepted religious practice. Not likely.

Interesting.

I think the Texas Supreme Court has a case pending before it on the right of parents to deny care to their chronically ill fetuses/premature babies. Wish I had more to give you, but that's all I recall right now.

I wonder how a decision favoring the parents would affect a criminal prosecution in that case?

I am not certain how effectively Cuellar dealt with the concept in Showery that the assaultive conduct must be directed toward an otherwise (and already born) viable being. Clearly, the El Paso court drew the distinction in the good doctor's case that he dealt with "a human being who has been born and is alive at the time of the alleged conduct of the defendant". 690 S.W.2d at 692. The mother here set things in motion prior to birth. Logically it should not make any difference whether the fetus was yet independent of the womb, but it certainly does seem to make a legal difference. Without that distinction I am having a hard time visualizing the difference between the murder statute and the unconstitutional abortion statute. Good luck, which ever way you decide to handle that potato.