The Saga of Erica & Jerry and the Texas Fetal Protection Act

Texas, my home state, joined a national stampede in 2003 to criminalize harm done to a fetus by third parties. Texas was, in fact, the only state in 2003 to criminalize harm to a fetus at any stage of its development. There's been a push on in D.C. to pass a federal law, the Unborn Victims of Violence Act, which passed the Republican House in 1999 but has languished in the Senate. (It's been renamed "Laci and Connor's Law" in honor of Laci Peterson, murdered while pregnant by her husband Scott). It would create a federal crime allowing charges to be filed against those who kill or injure a fetus during the commission of another federal offense.

Here's the catch in all this maneuvering to declare a fetus legally a person: neither the proposed federal Peterson law, nor state laws like the one in Texas, cover abortions. In fact, these laws are forced constitutionally (by the hated Roe v. Wade Supreme Court decision) to explicitly exempt the acts of "any woman with respect to her unborn child" and any person "for conduct relating to an abortion for which the consent of the pregnant woman has been obtained." Pay close attention to that second quoted clause for what follows.

Two stupid teenagers in Texas are playing havoc with the Texas fetal protection act, not only ruining their own lives in the process but making fools of the Texas legislature.

As stated earlier, Texas has a very strict criminal statute protecting a fetus at any stage of development from third-party harm. But in the case of 16-year-old Erica Basoria and her 18-year-old boyfriend Gerardo "Jerry" Flores, teenager baby-daddy-drama can outwit the clear thinking of even super-moralists.

Erica and Jerry were students in the Lufkin, Texas, school system. They started dating. They started having sex. She got pregnant. With twins. They both freaked out, but Jerry, who planned on going to college on a soccer scholarship, offered to put off school and help with the babies. Erica's parents urged abortion, saying their daughter was too young for two children. Jerry's mother was just as strongly opposed to abortion.

According to the affidavit that Erica later wrote for the police, when she began showing at four months, "I started hitting myself [to induce a miscarriage]. I would do this every other day, and I would use both of my fists when I did this. I would hit myself 10 or more times."

Then she turned to her boyfriend. "I said I didn't want to do it," he recalled. But she kept pleading, he said, until he agreed to step on her. Yes, he stood on her stomach. And she miscarried.

At the Lufkin hospital, emergency room workers saw the bruises and assumed she'd been beaten up. Police arrested Jerry as the culprit. After Erica confessed to what happened, the local prosecutor decided to charge Jerry with capital murder under the Texas fetal protection act, and he's in jail awaiting trial. Take my word for it: they rarely let anyone off for anything in Texas. Stupid teenagers are just fresh meat.

Under the Texas law, as indeed under the proposed federal Peterson act, Erica can't be charged. After all, abortion is legal. And as we read it, Jerry wouldn't be chargeable under the federal law either. Remember that earlier clause? Any person would be exempt from prosecution "for conduct relating to an abortion for which the consent of the pregnant woman has been obtained." Not only was consent obtained; it was a plot initiated in this case by the pregnant (and incredibly desperate) girl.

So. We've got a teenager facing god knows what under a statute that considers Jerry's actions a crime while simultaneously granting Erica's constitutional right. Pause a moment and let the full force of that paradox sink in: in Texas, one person's constitutional right is another person's capital crime. But instead of acknowledging the stupidity of their state law, the Texas prosecutors are evidently just itching for any way to charge Erica too. But they can't.

"How can two people conspire to do something like this and only one of them be punished? How can that be fair?" defense attorney Ryan Deaton asked. Prosecutor Clyde Herrington said it was startling that "they completely leave the female out of the criminal penalty. It doesn't seem entirely fair," Herrington said.

No, not fair. And but one smelly blossom out of the many buds developing on this whole body of law, which is meant ultimately to prevent Erica from having any choice -- never mind the idiotic one she chose.