Hastings Journal on Gender and the Law


Laura E. Back


Is the difference between abortion and fetal homicide the pregnant woman's choice-or the provider's medical license? Reports of a recent Texas case suggest that ever-proliferating fetal homicide laws may be applied to charge non-medical abortion providers with murder. Although the state has legitimate interests in protecting women's health through prohibition of dangerous non-medical abortions, it defies justice to enforce such prohibitions by charging violators with murder of the aborted fetus. This Note explores how constitutional limitations on permissible state interests in regulating abortion provide a basis for Eighth Amendment proportionality and due process challenges to this misuse of fetal homicide laws.