Texas Man Receives A Life Sentence for the Murder of his Unborn Twins: When Feticide is a Capital Crime

By SHERRY F. COLB

Tuesday, Feb. 06, 2007

Last month, a Texas Court of Appeals upheld the conviction and life sentence of a man for killing his two unborn children. The gestational age of the fetuses in question was approximately four months, and the defendant - Gerardo Flores - was found guilty of killing them by stepping on his pregnant girlfriend's abdomen several times during the week prior to her resulting miscarriage.

The prosecution proceeded on the basis of a Texas statute under which the class of potential capital murder victims includes unborn human beings from the moment of conception. The case thus raises the important question of how the law ought to treat assaults on pregnant women that deliberately bring about the loss of their pregnancies.

The Facts

At the time of the attacks in question, the surviving victim, E.B., was 16 years old and pregnant with twins. Her live-in boyfriend, Gerardo Flores, was 18 years old and evidently had a history of physically abusing his girlfriend. At approximately four months' gestation, E.B. reportedly decided that she wanted an abortion. Her obstetrician/gynecologist, however, informed her - incorrectly - that the time during which E.B. could legally terminate her pregnancy had passed.

After hearing this news, E.B. reportedly asked Flores to step on her abdomen to induce a miscarriage. She had admittedly tried punching herself in the stomach, but this approach had failed to accomplish her objective. Reports say that after some initial reluctance, Flores acceded to his girlfriend's requests, and a miscarriage followed.

Though Flores acknowledged using physical violence against his girlfriend, he claimed that he generally would beat her on the arms. It was only her begging him to terminate her pregnancy, he said, that led him to press his full weight onto her abdomen.

The Factors Favoring Prosecution

In meditating on the events that led up to Flores's life sentence, it is difficult - no matter where one's loyalties lie in debates over abortion - to escape the sense that the defendant was not an entirely innocent party,. He had abused his girlfriend repeatedly and therefore had a more complicated relationship with her than a medical (or even an illegal) abortion provider would have had.

If E.B. in fact asked that Flores to terminate her pregnancy in the way that he went on to do, one might view her request as a reflection of the dependency and fear that can afflict victims of domestic violence. E.B. could have felt, in other words, that she had nowhere to turn but to her violent boyfriend and might therefore have sought to have him do what he had already been doing to her before - commit violence, this time for the purpose of terminating her pregnancy. Such a perspective calls into question her capacity to authorize his subsequent conduct.

Another fact that arguably favors the prosecution in this case is that E.B.'s pregnancy had progressed into its fifth month by the time of her miscarriage. Although the law does protect abortion at this stage, the procedure is nonetheless more controversial than it is earlier in pregnancy.

Finally, because Flores was not himself pregnant, one could argue that the Texas criminal code legitimately treats his killing of unborn children the same way as it would treat his killing of babies who have already been born. A pregnant woman, on this reasoning, has the right to terminate her own pregnancy, because no one may force a person to sacrifice the bodily integrity that is inherently and substantially compromised during pregnancy. To someone outside the pregnancy, however, including the father, the fact that a baby happens to be contained inside another person does not mitigate (and, indeed, arguably aggravates) its killing.

What distinguishes legal abortion from murder, in this sense, is not the diminished status of the fetus versus the newborn baby, but rather the uniquely demanding nature of pregnancy for the pregnant woman. Because Flores's assault on his girlfriend was not a lawful abortion, one might argue - without necessarily questioning a woman's right to terminate her pregnancy - that he simply killed his two children, as surely as if he had killed them after their birth, and should therefore suffer the consequences.

The Factors Opposed to Prosecution

In responding to the various points above, it is crucial to note the fact that E.B., the woman on whom the pregnancy-terminating assault took place, reportedly not only consented to but actually asked her boyfriend to do precisely what he did. E.B. herself testified for the defense during the trial and admitted that the induction of her miscarriage represented a cooperative venture between her and the defendant. Rather than constituting yet another instance of domestic violence, then, this particular assault was, by most accounts, a joint effort, one in which E.B. - at her own initiation - voluntarily lay down on the floor so that Flores could stand on her and place his entire weight on her pregnant belly.

If it is possible to do so, then, it might be appropriate to isolate other instances of domestic violence by Flores against E.B. - as deplorable as they are - from our consideration of his specific and deliberate effort to terminate E.B.'s pregnancy at her request. If, by contrast, the prosecutor had proved that Flores assaulted E.B. and killed her fetuses against E.B.'s will, the history of domestic violence would signify a far more important part of the story. Flores's actions would appear then unequivocally to embody the continuation and escalation of a pattern of violence.

A second point to consider in Flores's defense is that, regardless of how far along E.B.'s particular pregnancy happened to be, the statute under which Flores was convicted and sentenced would have allowed for his prosecution from the moment at which the twins were conceived. That is, just as the statute (at least, as construed by the court) ignores the presence or absence of the pregnant woman's consent, so then does it also fail to take into account the embryo's or fetus's gestational age.

Suppose, then, for example, that - against an obstetrician's advice - the couple had deliberately decided to have sexual relations early in pregnancy, and uterine contractions resulted, expelling a tiny and undifferentiated embryo. Under the court's interpretation of Texas law, this too might have constituted capital murder by Flores, resulting in a life sentence or even execution by the electric chair.

Nothing about the particularly objectionable aspects of Flores's conduct, in other words, receives any legal consideration under the terms of the statute.

As to the third point - emphasizing the distinction between the pregnant woman and all outsiders - a compelling response is that this distinction collapses where the pregnant woman (who is herself exempt from prosecution under the Texas statute) willingly and consensually solicits the outsider's termination of her pregnancy. The outsider (the boyfriend, in this case) is not simply killing unborn children. He is carrying out an abortion at the pregnant woman's behest - and accordingly acts as her agent.

The Texas Appellate Court's Analysis

Adding to the difficulty of this case is the anti-abortion sentiment that subtly animates the Texas Appellate Court's opinion. Flores made a variety of arguments challenging the constitutionality of the criminal statute under which he was prosecuted, convicted, and sentenced.

One argument was that the prosecution discriminated against him on the basis of his sex in violation of the federal Fourteenth Amendment Equal Protection Clause as well as the Texas Equal Rights Amendment. In support of this claim, he observed that his girlfriend could have terminated the life of her unborn children without facing any criminal consequences, while he now faces life imprisonment for doing exactly the same thing to his unborn children.

The Texas court disposed of this argument in the following way. It explained that a law which truly discriminates on the basis of sex must satisfy a high standard of justification. The Texas law, however, did not discriminate on the basis of sex, according to the court, because both women and men may be found guilty of violating the criminal statute at issue as long as they are not covered by the specified exemption provisions (which extend to - among others - the woman and her medical abortion provider). Had a female friend of E.B.'s done what Flores did, for example, she too could have been prosecuted for murder under the statute, just as Flores was.

Because the statute does not discriminate on the basis of sex (or any other suspect classification) and because it does not implicate a fundamental right, the court reasoned, the distinction drawn (between the pregnant woman and others) in the statute need only survive "rational basis" scrutiny.

Applying such deferential scrutiny, the court determined that the law survives, because "[t]he statute seeks to protect the unborn from murder and also to conform to existing constitutional interpretation by the United States Supreme Court," citing Roe v. Wade.

This discussion is striking for its utter failure to draw or defend any actual distinction between voluntary abortion and third-party assault-on-a-pregnant-woman. It instead simply cites an "existing" interpretation of the Constitution by the U.S. Supreme Court. The Texas court's analysis, by implication, would not have looked very different if it had sought to defend a statutory exemption for people who kill four-year-old children but enjoy diplomatic immunity.

The Texas court, by its silence, makes quite plain its hostility to the argument the Supreme Court articulated so well in Planned Parenthood v. Casey, acknowledging the unique burdens that pregnancy places on a woman, thus distinguishing her decision to terminate a pregnancy from the sorts of violence (including an involuntary abortion) that the criminal law can and should regulate. The Supreme Court there said of pregnancy that "the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal….".

Because the Texas court apparently considered irrelevant the unique circumstances of a woman seeking an abortion, moreover, it also did not find any relevance in the evidence - otherwise seemingly crucial to such a case - that the defendant might essentially have been performing an abortion when he killed his unborn twins. For someone who believes that voluntary induced abortion is itself murder, the defendant would have been an abortion provider regardless of whether or not his pregnant victim had sought his help. Her consent would not bear on the defendant's guilt or innocence but would, at best, make her an unindicted co-conspirator.

On this logic, it is only the Supreme Court's "existing" interpretation of the Constitution that explains an otherwise arbitrary exemption for abortion. The injustice, for the Texas court, might well have been the inability to prosecute E.B. for her complicity in the murder, an inability for which the prosecutor expressed regret - rather than the prosecution of a person whose role was in essence that of an abortion provider, otherwise protected by the law.

Conclusions About Flores and The Texas Statute

This case provides a sad illustration of what can happen when safe and legal abortions are unavailable (whether due to the law, the paucity of providers, or medically disseminated misinformation ).

Apparently feeling desperate and out of options, E.B. went to her boyfriend - the only person she trusted, despite their violent history - and asked him to abort her pregnancy in the only way she knew how. He did so, according to news reports, because she had asked. And now the Texas courts have provided a forum for his severe punishment and have thereby made a clear statement about the future of abortion in the state: Regardless of how the U.S. Supreme Court (for now) views a woman's right to bodily integrity, anyone who helps her exercise that right under circumstances that do not fall squarely within existing precedents, risks life imprisonment or the death penalty for the murder of a child.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in March 2007.

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