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Life Sentence Under “Fetal Protection” Law

Lauren

[UPDATE III: Amp spells out some more details brought to light since I last read the articles that make this situation much more troublesome. In this new light, I am reluctant to defend the young man in this case.]

Two scared and stupid teenagers devise a homemade abortion and the boyfriend is sentenced to life in prison.

Nineteen-year-old Gerardo Flores of Lufkin was sentenced to life in prison Monday in a landmark test case of a state fetal protection law. An Angelina County jury deliberated just under four hours, finding him guilty on two counts of capital murder for his part in killing his unborn twins.

An appeal will likely be filed within thirty days, and may be fought all the way to the Supreme Court.

Ampersand further explains the case and legal choices behind the ruling:

…a 16-year-old pregnant girl, Erica Basoria, and her boyfriend, Gerardo Flores, jointly agreed to abort her sixteen-week pregnancy by beating her around the stomach. None of the news stories I’ve read explains why they didn’t go to a doctor. Maybe they were just too stupid and scared and afraid of being found out; or maybe pro-lifers have succeeded in removing all practical access to abortion where these kids live.

Under Texas’ fetal protection law, a mother can never be charged for “murdering” her own fetus – but someone else can (there’s an exemption for health care providers). She was pregnant with twins, so the boyfriend has been found guilty of a double homicide and, unless the case is successfully appealed, will spend the rest of his life in prison.

…The defense attorney tried to blame the whole thing on the girl, of course. Didn’t fly with the jury.

Note that the mother’s wishes are… entirely irrelevant. Really, I’m amazed that they didn’t go for the death penalty.

For more commentary, see Republic of T.

UPDATE: Kevin Drum says:

This is the intersection of stupid kids, stupid laws, mendacious legislators, and fanatical prosecutors. It’s what happens when states ban access to otherwise legal abortions and kids don’t know where to turn. And if circumstances and the law had been slightly different, Bauereiss probably would have prosecuted Erica Basoria too and sought the death penalty for both.

It’s like living under the Ayatollahs in Iran. It’s simple barbarism.

UPDATE II: From Bitch Ph.D.

In trying to save his life, he had to blame his girlfriend, the girl he was trying to help; and though she tried to defend him, she had to stand by in the end without being able to, listening to his defense attorney blame her for “inviting” a boyfriend to hurt her. She’s legally safe from prosecution, but not safe from the age-old “she asked for it” form of defense; and her boyfriend has to offer that heinous defense in order to save his own hide. (And people say it’s gay marriage that threatends the stability of heterosexual relationships.) Here we have a young man who, in desperate circumstances, tried to stand by his girlfriend, to help her, forced to hurt her and punished by the state because no, we will not allow women to think for themselves. We will portray women who do as victims, as crazy, as invisible; we will not listen to what they have to say; and we will punish the men who try to stand by women, who listen to what women say instead of “listening” to the imagined words of a five-month old fetus.

The whole thing is an absolute tragedy. A metaphorical punch in the gut to Flores, to Basoria, and to everyone who cares about women’s rights. She’s recovered from the miscarriage; if the sentence stands, neither she, he, nor we will recover from the blows of the state.

48 thoughts on Life Sentence Under “Fetal Protection” Law

  2. oh god no.

    a sign of what’s to come?

    pack the courts with extremists, make abortion illegal, and then start handing out life (and later, surely, death) sentences to people who freak out and desperately try to end the pregnancy themselves.

  3. I predict that this decision will not stand and the law will be struck down. I don’t even know what argument could be made in favor of this dopey law, since to have a murder you have to have a victim and the law is clear that it does not recognize 16 wk old fetuses as “persons.” The law sounds like it was designed specifically to provide a test case, which it now is.

  4. The fetuses were five months old, according to two other sources. I’m not sure whence your mistake, but it’s a big one.

    Life in prison seems a harsh punishment for drooling stupidity, but a 19-year-old who couldn’t think of a better solution needs … a “time out,” let’s say.

  5. Some context, though, because I like you: the Planned Parenthood in Lufkin, Texas does not do abortions, only referrals. Even so, the clinic was shot at last year.

  6. The fetuses were five months old, according to two other sources.

    I suppose it’s the difference between four and five months — a pretty big difference. I expect she was somewhere inbetween. Either way, these kids waited too long and didn’t make the smart choice here.

    It’s a shame the boy got a life sentence. I hope this will revive the debate and action about abortion laws to include real life circumstances instead of hypothetical ones.

  7. Texas state law does in fact say that fetuses are “individuals”, Quisp. The law that made it illegal to kill a fetus unless you are a doctor also said that fetuses are persons.

    I love my home state. >:O

  8. Texas state law requires a minor to notify a parent. Given the reaction of the girl’s parents to her boyfriend’s trial, it looks unlikely that they’d have consented to the abortion; and given the trial’s outcome, it’s clear that getting a judicial bypass is far from easy. I think it’s really unfair to blame the kids for not being able to “think of a better solution,” when the laws are increasingly written precisely in order to make better solutions impossible.

  9. I think it’s really unfair to blame the kids for not being able to “think of a better solution,” when the laws are increasingly written precisely in order to make better solutions impossible.

    Thank you, thank you.

  10. I agree with Dr. B; and Kevin made a good point when he noted that there’s almost literally nowhere to even get an abortion after 16 weeks, even if you could get your parents to approve it. (Basoria was at 17 weeks when she miscarried.) It makes me absolutely LIVID that these two troubled, desperate kids have been forced to go through this kind of crap – hell, it’s beyond crap, it’s a fucking tragedy at this point – and there’s not even a wisp of a hint that this might make Texas oh, I don’t know, rethink its draconian abortion laws. Oh, no. Because this isn’t a legislative problem. It’s a “moral” one. Seriously, is anyone else feeling discouraged?

  11. Yes, thank you.

    She couldn’t just go out and get an abortion. They couldn’t ask their parents. She had no reason to believe she could get a judicial bypass–and was seeking one really an option, given the difficulty of keeping the abortion secret in that event? He would have been in trouble if he as an adult had transported her as a minor across state lines to get an abortion, particularly without her parents’ knowledge or consent. Then, of course, there’s the difficulty of taking a long roadtrip in secret. And, gee, this whole mess began in a state that isn’t terribly friendly towards sex ed or–or general health, reproductive health, or prenatal care! Why is this outcome surprising to anyone?

    Of course he did a stupid, dangerous thing. He’s nineteen. Nineteen-year-olds tend not to be terribly good at strategizing–they frequently do stupid, dangerous things. But his actions aren’t criminal by any sane measure, any more than hers are.

  12. The jury in this case convicted purely on emotions. The prosecution overzelously charged this young man for show and brownie points with voters. I would not be suprised to find the ADA running for higher office later.

  13. From what very little I know about the law and the case, it appears that the jury actually did the right legal thing under the letter of the law. (Note: obviously, I would rather they had pulled some jury nullification and acquitted.) The only way that the conviction will be overturned is if the law is thrown out by the courts. Chances are slim on that one. The appeal/lawsuit will have to go through the notoriously conservative Texas court system, then go through the 5th Circuit Court of Appeals (which just swore in Priscilla Owen this week). Unfortunately, things are not looking up for Mr. Flores.

    (Scary [for me] sidenote: Flores is 2 years younger than me, and now has to spend the rest of his life in prison. Jesus Christ.)

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  16. Yesterday the governer of Texas signed a law pushing stricter limits on late-term abortions and requring parental consent for minors. These people have no sense of cause and effect.

    By the way, in the article BitchPhD linked, the prosecuting attorney said that it was ‘unfortunate’ that they couldn’t prosecute the mother as well.

    This article makes it sound like she could have gotten parental permission. I suppose t’s not up to us to double-guess their motives and situation; I’d agree with the statement ‘it’s a tragedy all around’. What scares me is that prosecutor.

  17. I was referring to federal law, since it’s ultimately going to be the federal stage on which this (or some similar eventual) drama plays out. I’m curious: texas state law says fetuses are individuals after what gestional age?

    I will be shocked if this does not end up with the supremes. It was tailor-made to. The kid’s life is ruined (or at least defined for the next many years) in the meantime.

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  20. I can’t believe everyone here is coming to the defense of someone who beat a woman and then tried to pin the blame on her.

    Is this what third wave feminism is all about?

    I’m definitely in favor of long prison sentences for men who beat women. Is that really so outrageous? Now watch this comment get deleted by Lauren and Jill who are so, so open to other points of view.

  21. This whole thing makes me quiver in fury, even when reading people coldly wondering about the “statutory rape” laws at Alas. I am not a teenager or close to it, but I know from midnight grope-a-thons and the level of judgement passed on these two just strikes me as way out of control. I worry for people sometimes.

  22. You did read the story, didn’t you, Joseph? She asked him to help her miscarry because neither of them believed there were any other options available to them.

    That’s very different from someone beating their partner in an abusive relationship and blaming the victim.

    This young woman is a victim, but of circumstances, not her boyfriend.

  23. Joseph: Except for the fact that what you describe has absolutely no resemblance whatsoever to the situation, you’d be right. If this were done without her consent, it would be an almost appropriate use of the law.

    The problem is that he didn’t “beat” her; the two of them jointly attempted what they thought to be a semi-safe home abortion. If the admins end up deleting your comment for being an absolute untruth, they’d be completely justified.

    It’s one thing to have a different point of view. It’s another to materially misrepresent the facts of the case.

  24. So a man has the right to beat a woman “as long as it’s consensual”?

    Oh what a sick, sick culture we live in.

  25. …And a mother has the right to stick a needle into her child’s skin as long as she’s trying to dig out a splinter?

    Yeah, this is fucking sick, all right.

  26. You make a good point, Joseph: how can she consent to the “beating” when she doesn’t have the right to control her own body or to make decisions affecting her own health? Once she’s got a fertilized egg on board, she can’t do anything without the consent of the self-appointed legal representation of the egg.

  27. If I am reading the stories correctly the young man was not charged with beating her, he was charged with the deaths of the two fetuses. Consent or not it doesn’t seem like the prosecutor was worried about her at all, just her uterous.

    That being said papers are notorious for leaving out details. There might have been additonal charges we are not hearing about.

  28. I must say I did see Joseph’s point of view – her asking for his help does not justify ‘beating’ a 16yr old girl in the stomach. Maybe his learning difficulties had something to do with this, though we don’t know how severe they were.

    What shocks me is the different treatment giving to her boyfriend over her, surely as she (well supposedly) was wanting the abortion, the Texan authorities should blame her (not that anyone except the patriachal authoritarian justice system has truly turned this into a tragedy.)

    I wonder what would have happened had the girl died from him beating her – I think he would have faced a lesser sentence because there’s “only one of her”. It’s a sick world.

  29. So a man has the right to beat a woman “as long as it’s consensual”?

    Oh what a sick, sick culture we live in.

    This comment is inflammatory and distracts from the real issue which is that these two kids were forced to such drastic means becasue of ridiculous laws designed to control sexuality and reproduction passed in a state which refuses to accept the reality that unmarried people can and will have sex. That is what’s really sick here- the blatant refusal to accept and understand reality.

  30. I must say I did see Joseph’s point of view – her asking for his help does not justify ‘beating’ a 16yr old girl in the stomach. Maybe his learning difficulties had something to do with this, though we don’t know how severe they were.

    But it’s not terribly extreme compared to other DIY abortion methods, which have a long and horrible pre-Wade history. Women would throw themselves down flights of stairs, shove sharp objects into themselves, drink poisons, douche with poisons, poison themselves with alcohol, and hit themselves in the stomach to induce miscarriage. Serious injury, sepsis, sterility, and death from self-induced abortions were not at all uncommon. They still do all of these things in places where abortion is illegal, or in cases where abortion is not an option.

    There are DV issues in this case, and yes, something a woman does to herself is different, full stop, from something done to her. But the whole, “beating a woman’s stomach” meme really, really needs to be put in the context of an attempt to terminate a pregnancy. Because, like I said, this is very common wherever women cannot obtain safe, legal abortions. This country is becoming a place where women cannot obtain safe, legal abortions. That means that we will see more and more amateur abortion attempts. It’s important that pro-choice activists prevent them from being criminalized.

  32. I completely agree with Piny. Context is everything, and when we forget about this, we limit our ability to actually understand a situation. We can’t make everything black and white just because we’re more comfortable that way.

  34. I have to do some serious googling, but that’s not a hypothetical. That has actually happened, IIRC a couple years ago: a woman was arrested because she’d had a miscarriage, and law enforcement officials wanted to rule out negligence or attempts at inducing a miscarriage.

  37. Piny I think I know what our talking about, but I’ll have to look through my stupid laws clippings. I believe there was a law on the books that a women who had a miscarriage at home or someplace other than a hospital had to report it to the police within 72 hours? If we are thinking of the same thing. When she did report it it was after the 72 hours and the police arrested her?

  38. That sounds very familiar to me, that 72 hr thing. I remember reading about it last year at some point; for some reason I got the impression (or revised my memory somehow) that the law didn’t go into effect. But I’m just as likely wrong on that point as not.

    I do think, however, that such laws must exist if abortion becomes illegal again. You can’t say it’s murder and then say you’re not going to look into all potential cases of it. And I think if framed correctly this is actually an excellent argument against the pro-life stance. As I said to old BillyHW, you simply can’t have a society in which miscarriages must be registered and investigated as potential crimes, and all the other absurd shit that flows from declaring that an undifferentiated cell is fully vested with rights (ultimately, as I said to Billy, one would have to declare each act of heterosexual intercourse — due to the innocent human cell that may arise from it — a matter of public record).

    Anyway, the greater the public awareness of these bogus pro-life laws, the greater the stench will be. This is my fantasy anyway.

  39. I highly recommend not beginning and ending any paragraph with the word “anyway.” Lauren, please feel free either of those anyways as being off-topic and offensive.

  41. But it’s not terribly extreme compared to other DIY abortion methods, which have a long and horrible pre-Wade history. Women would throw themselves down flights of stairs, shove sharp objects into themselves, drink poisons, douche with poisons, poison themselves with alcohol, and hit themselves in the stomach to induce miscarriage. Serious injury, sepsis, sterility, and death from self-induced abortions were not at all uncommon. They still do all of these things in places where abortion is illegal, or in cases where abortion is not an option.

    There are DV issues in this case, and yes, something a woman does to herself is different, full stop, from something done to her. But the whole, “beating a woman’s stomach” meme really, really needs to be put in the context of an attempt to terminate a pregnancy. Because, like I said, this is very common wherever women cannot obtain safe, legal abortions. This country is becoming a place where women cannot obtain safe, legal abortions. That means that we will see more and more amateur abortion attempts. It’s important that pro-choice activists prevent them from being criminalized.

    This is very true – but we are talking about America in the 21st century – DIY abortion shouldn’t be happening at all. I stand by the fact that there can not be anything right about beating your girlfriend – particularly a minor, no matter what she asked you to do. I can understand they were desperate, and he was aiming to produce a miscarriage, not hurt her, but this does not make it right.

    I am not not trying to criminalize her – she has every right over her own body, but he does not. By producing the miscarriage he had to beat her – and even with her consent, he can’t be a decent person.

  42. >>This is very true – but we are talking about America in the 21st century – DIY abortion shouldn’t be happening at all. I stand by the fact that there can not be anything right about beating your girlfriend – particularly a minor, no matter what she asked you to do. I can understand they were desperate, and he was aiming to produce a miscarriage, not hurt her, but this does not make it right.

    I am not not trying to criminalize her – she has every right over her own body, but he does not. By producing the miscarriage he had to beat her – and even with her consent, he can’t be a decent person. >>

    DIY abortion shouldn’t be happening at all because safe, legal, surgical abortion should be an unqualified, uncontested option for every woman–minor and adult–who wants and needs one.

    America in the 21st century notwithstanding, that isn’t true here, and it wasn’t true for this girl. She did not have the option of a safe, legal, surgical abortion. She had no legal right to get one by herself. She apparently had good reason to believe that neither her parents nor the courts would assist her. As a sixteen-year-old, she probably had a limited ability to travel to another jurisdiction, and would have been a statutory criminal had she attempted to do so. And if she had attempted openly to get an abortion, her parents and law enforcement officials would probably have prevented her from doing so in time.

    DIY abortion with the help of her boyfriend was one of her best options for ending the pregnancy. He was otherwise abusive, but this single action does not itself constitute abuse.

    I am not just worried about women who induce their own miscarriages being criminalized. Before abortion was legal, there were lots of people who helped women terminate pregnancies by unsafe, unmedical means. They cannot become criminals, and that means that the act of helping someone to terminate a pregnancy by means that are necessarily dangerous cannot be redefined as assault.

    What if she had begged her best friend to stomp on her stomach? Or her little sister? Would that have been assault? What if she had asked a friend or a family member to procure an extremely dangerous abortifacient? Would they have been poisoning her?

  43. Uncynical Youth? wrote: This is very true – but we are talking about America in the 21st century – DIY abortion shouldn’t be happening at all.

    yeah, it would be great if any woman who wanted a safe & painless abortion could get one in this country without any kind of negative repercussion…

    yeah, that would be great.

  44. Actually, the reporting a miscarriage within 72 hours was a bill introduced by John Cosgrove. Then it was huffily withdrawn, because the women of the blogosphere and everyone they could reach had a fit about it, and scared him so much that he wet his pants. Feministe was one of the complainers. (And thank you so much, Lauren.)

    You can read about it here. Hopefully.

    I was actually talking about something different: a law that was in force, that criminalized fetal harm or something. And a woman who had suffered a plain old miscarriage for no apparent reason but her body’s inability to continue with the pregnancy was arrested on suspicion of murdering her fetus. I still have to search for it.

  45. Thank you Piny, I knew there was some idiotic thing out there like that. I remembered talking about that in criminal law. I thought it sounded similar to what you were discussing. Let us know when you find it, I am definantly interested in that story.

  46. Arrrgh. Unfortunately, it was something I read about in The New Republic (or was it an ACLU newsletter?) two years ago, so.

    There is plenty out there about fetal harm laws that criminalize women who take drugs or drink alcohol during the pregnancy. There are also cases of women being criminalized for not undergoing specific medical procedures at the insistence of their doctors–C-sections, for example.

    But this was different: a woman who had had a miscarriage, with no evidence of any “wrongdoing” on her part, who was arrested on suspicion of fetal murder.

  48. Found something:
    Hope, Ark. Feb 22, 2000.

    The fetus was found Feb. 22. Officers were called in to investigate the report after the 19-year-old mother, who worked at the chicken house, told hospital personnel that she had either aborted a child or given birth. The fetus was sent to the state Crime Laboratory in Little Rock for an autopsy.

    The discovery was investigated to determine if the state’s new Fetal Protection Act had been violated. The act excludes mothers from culpability, but applies to others who cause the loss of a fetus, officials have said.

    That was all I could access. There was no trial. I hope this helps.

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