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Detroit News: Boy faces felony in baseball bat abortion

This article was originally posted on Jan. 5, 2005 at http://www.detnews.com/2005/metro/0501/05/A01-50709.htm but has since been deleted, and is reproduced here for archival purposes.

Law won’t allow Macomb teen girl to be charged in helping end her pregnancy.

By Edward L. Cardenas and George Hunter / The Detroit News

RICHMOND TOWNSHIP – Macomb County Prosecutor Eric Smith said his hands were tied when it came time to decide whom to charge in the baseball bat beating death of a fetus being carried by a teenage girl.

He decided Tuesday to do the only thing one state statute allowed: charge the boyfriend who wielded the bat, hitting his girlfriend in the stomach repeatedly over a two-week period, but let the girl off the hook, uncharged.

The Richmond Township boy, 16, who may be arraigned as early as today in Macomb County Juvenile Court, is at home with his parents. He was charged as a juvenile with intentional conduct against a pregnancy or stillbirth, which is a felony. If convicted, he could remain in custody until age 21.

But the girl, also from Richmond – who was a willing participant in the induced abortion, law enforcement officials say – cannot be charged under that law because it specifically excludes the mother from criminal liability.

In part because it still was legal to abort the fetus, the decision renewed debate over the protection of fetuses and the fairness of charging just one of two juveniles who allegedly agreed to kill their unborn child.

Although Smith called the case "shocking and reprehensible," he added, "we are bound by the law. We don’t have the option of charging (the girl)."

Smith said if the 6-month-old fetus had been viable, the boy would have been charged with manslaughter of a quick-born child, a 15-year felony.

The girl could have then also received the same charge for aiding and abetting.

Miranda Massie, a Detroit civil rights attorney, believes neither teen should be charged. "My heart went out to these poor kids," Massie said. "I believe it is a terrible mistake to be charged at all. This is a tremendous waste of public resources.

"What is Macomb County going to gain by criminal charges?"

She contacted the family of the boy to represent him. She believes that neither teen deserves to be charged.

Smith charged the boy under a state law passed in 1999 – called the "Prenatal Protection Act" – that states only the person assaulting a pregnant woman resulting in a miscarriage is criminally liable. The pregnant woman, no matter how complicit in the termination, is not.

If that provision had not been written into the statute, it would have clashed with the federal law that allows abortions under the landmark 1973 Roe v. Wade U.S Supreme Court decision, said Pam Sherstad, spokeswoman for Right to Life of Michigan, which worked to pass the 1999 state law.

"Abortion is obviously legal in the United States," Sherstad said, "and you can’t have a state law that interferes with federal law. The Prenatal Protection Act was designed to protect pregnant women who are assaulted by someone resulting in the death of their unborn child. This is obviously a unique case."

Legally, the baby could have been aborted. Because the girl was a minor, she would have needed a judge’s or parental permission to obtain an abortion.

Smith said he waited until final toxicology reports on the fetus were completed by the medical examiner to determine what charges could be brought against the 16-year-old boy. The prosecutor declined to identify the youth because because he is charged as a juvenile.

Arthur Caplan, professor of medical ethics at the University of Pennsylvania in Philadelphia, believes the girl should be charged with planning, plotting or conspiring to murder.

"But it’s tough to do, because the law takes a different view of developing potential life than it does of actual life," Caplan said. "If the boy was charged with murder she probably would be facing charges, too.

"But being involved in causing a miscarriage is not as severe as murder," Caplan said. "Ethically, you could argue that this seems wrong, but the law draws a sharp distinction between killing your child and a fetus that’s not yet viable. That may strike some pro-life people and conservatives as wrong, but that’s the way the law is now."

Sherstad said the case illustrates how "the sanctity of life is not valued in our culture. It’s sad that human life can be discarded this way. There’s no value on the life of an unborn child, which makes it easier for something like this to happen."

Lori Lamerand, vice president of the Planned Parenthood Mid-Michigan Alliance, said pregnant teens have safer options available than terminating a pregnancy without a doctor.

"It’s always tragic when people resort to such drastic measures, when there are appropriate, safe medical measures are available," Lamerand said.

Both the boy and his girlfriend have returned to classes at Armada High School, said Arnold Kummerow, superintendent of Armada Area Schools.

Law enforcement officials were first made aware of the incident in mid-November, when the girl spoke about the series of events that led to the miscarriage while at a high school leadership conference in the Upper Peninsula. The adult facilitator of the conference contacted the Michigan State Police. Detectives from the state police Richmond Post investigated the claim, and went to the boyfriend’s home, where they found the buried fetus.

An autopsy was consistent with initial reports from the Michigan State Police that the miscarriage was caused by the girl’s boyfriend repeatedly striking her with a 22-inch souvenir baseball bat over a two-week period, Smith said.

The parents of the teens were not aware of the pregnancy or the decision to abort it, investigators said.

Police believe the fetus was aborted in early October, then buried in the back yard of the boyfriend’s home with the help of his mother.

The fetus died of premature birth associated with trauma to the mother, according to chief Macomb County Medical Examiner Dr. Daniel Spitz.

The fetus could not have survived outside the womb at the time of miscarriage, he ruled.