Why The Texas Church Shooting Death Toll Includes A Fetus

Texas is among a majority of states with "fetal homicide laws" on the books.

Texas officials counted 26 victims following a mass shooting at a church in Sutherland Springs on Sunday. The eldest victim was 77 years old. The youngest was still in utero.

Texas is one of at least 38 states that have enacted laws to protect the rights of fetuses killed in violent crimes. Like the one passed in Texas in 2003, fetal homicide or “feticide” laws carry harsher penalties for crimes committed against pregnant women.

Crystal Holcombe was eight months pregnant when 26-year-old suspect Devin Patrick Kelley opened fire at the First Baptist Church in Sutherland Springs. Holcombe died along with three of her five children, as well as her mother-in-law, father-in-law, brother-in-law and niece. Her husband, John Holcombe, was reportedly struck by shrapnel in his leg but survived.

Kelley fled the scene, and officials later found him with a fatal gunshot wound in his vehicle in nearby Guadalupe County. If the suspect had remained alive, Texas law would have required that he be charged with the murder of Holcombe’s fetus.

Texas was among the first states to pass a fetal homicide law. The state’s penal code includes a definition of “an individual” as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

In 2004, Congress passed the Unborn Victims of Violence Act, which counted fetuses as separate victims of federal and military crimes. Dubbed “Laci and Conor’s Law,” the act gained momentum following the 2002 murder of Laci Peterson by her husband, Scott Peterson, in California. Peterson was eight months pregnant at the time of her death.

Advocates for feticide laws argue that the legislation aims to protect the lives of both mothers and their unborn fetuses.

“The principle here is that there are two victims,” Jennifer Popik, director of federal legislation for anti-abortion rights group National Right to Life, told The New York Times. “For a family already invested in the child, for the grandparents, this is a loss.”

But opponents say such laws tread into murky territory regarding personhood and the debate over whether life begins at conception

First is the concern over whether feticide laws could be used to criminalize abortion. Many of the state’s fetal homicide laws include language specifically differentiating between violent crimes and legal abortions.

Deborah Tuerkheimer, a Northwestern University law professor and former assistant district attorney in Manhattan, has argued that the laws pose other issues, though, regarding the legal status of fetuses.

“Affording victim status to a fetus has implications beyond the erosion of abortion rights,” Tuerkheimer wrote in a New York Times op-ed following the introduction of a fetal homicide law in Colorado. “Legally severing a fetus from the pregnant woman has the effect of pitting her interests against the fetus’s.”

This could result, she argued, in increasing “the state’s power to interfere in the lives of pregnant women.”

Some abortion rights groups, like NARAL Pro-Choice America, favor laws that enforce additional penalties for crimes committed against pregnant women rather than designating fetuses as separate legal entities.

Kaylie Hanson Long, national communications director for NARAL, said in a statement: “We need tougher laws on the books that increase criminal penalties for individuals who target pregnant women, and we stand with our allies in support of meaningful legislation to prevent future acts of gun violence.”



Texas Church Shooting