Recent case could lead to legal protection for unborn children

By STEVE RAY / Harte-Hanks Austin Bureau

AUSTIN &emdash; A South Texas manslaughter case has set the stage for a legislative abortion battle that could give legal protection to unborn children.

At least two state lawmakers have said they would file new measures to help protect pregnant women and their fetuses after a Corpus Christi jury earlier this month found a drunk driver guilty of manslaughter in the death of Krystal Zuniga.

Abortion rights supporters accuse the lawmakers and their supporters of capitalizing on the personal tragedy of Zuniga, born prematurely June 15 after a drunk driver smashed into the car her mother was driving. She died within 48 hours.

State Rep. Steve Ogden, R-Bryan, and state Sen. Chris Harris, R-Arlington, have said they will file proposals to make sure pregnant women and their unborn children have more legal protection.

Ogden's bill includes one provision that would broaden the definition of intoxication manslaughter to include drunken-driving that kills a fetus.

Anti-abortion advocates fear that if Zuniga had been stillborn, prosecutors would not have taken the case to trial.

Similar proposals have failed during the past two sessions of the Texas Legislature, but supporters of the measures say the Zuniga case has highlighted the issue and will make the legislation harder for lawmakers to turn down.

Ogden said he hopes the Zuniga case will make lawmakers more receptive to his proposal, which would make it a first-degree felony to intentionally injure a pregnant woman and cause a miscarriage or stillbirth.

It would make it a second-degree felony to injure a pregnant woman with the intent to cause a miscarriage or stillbirth.

Under current Texas law, attacks on pregnant women are treated the same as attacks on anyone else, regardless of the impact on the fetus.

"The Corpus Christi prosecution hinged on a unique set of circumstances," Ogden said. "Had that baby died before she had been born, I don't think prosecutors could have taken that case to trial. Whether that child is born alive and then dies or just born dead is irrelevant. I don't think the law should make that distinction."

Ogden introduced similar legislation in 1993 and 1995. The bill passed in the House of Representatives then died in the Senate over fears that the law would undermine abortion rights.

Ogden's bill specifically exempts legal abortion consented to by the mother. That would not make doctors who perform abortions liable under the law.

Harris' proposal would allow a mother or father to get a wrongful death recovery for the intentional or negligent death of a viable fetus, according to Tom Marshall, a spokesman for the senator.

His bill would also say that a person who caused the death of a fetus has committed a criminal act and it would clarify that the law did not apply to a woman seeking an abortion or her doctor.