There were this man and this woman who had conceived twins out of wedlock, and wanted to destroy the children. So they agreed that both of them would bash their babies to death. He would step on his girlfriend, and she would beat herself with her fists. In this way, the two of them succeeded in killing the little ones, but they got caught.

Gerardo Flores got an automatic life sentence for violating Texas Penal Code statutes prohibiting criminal homicide. And his conduct was not an exception under Section 19.06 of that Code.

19.06. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is:

1. conduct committed by the mother of the unborn child;
2. a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;
3. a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or
4. the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

When Erica Basoria, 17, first discovered that she was pregnant, she attempted to kill the children1 herself by using her fists. When she failed several such solo attempts, she acknowledged asking Flores to help end her pregnancy. He agreed and together, they stomped the babies to death inside of Erica. She could not be prosecuted for her part in the death of her children because her conduct was excepted under Section 19.06(1).

But, you may ask, doesn't her right to terminate her pregnancy extend to asking someone else for assistance? Well, sure it does, and she could have exercised it by applying for help from a state-licensed professional…like a doctor at an AMA-sanctioned abortion clinic…with the proper paperwork from the state.

However, she apparently opted to exercise her right to kill the babies by asking an unlicensed individual to assist her, and that's where things went tragically wrong…not for the babies…they were dead meat no matter what happened. It went wrong for Gerardo, who is now going to the state big house, with all of its thrills, spills and chills, for the rest of his natural life, unless he makes parole in who knows how many years.

Although Gerardo's methods were a bit crude, so that harm to the mother could have resulted, he was not sent to prison for harming her or even because he could have harmed her. He was prosecuted and convicted of criminal homicide…he killed the babies with the intent to kill the babies.

But that's just what those exempt-by-law abortion clinics do! The exact same thing! They kill the baby with the intent to kill the baby! In fact, the exception in Texas PC Section 19.06(2) insists that the licensee Doctor intend to kill the baby with the mother's full knowledge and consent that he is going to kill the baby before any exception exists.

Like Gerardo, the Doctor intends no harm to the mother, and he too has her consent to invade her body to kill those tiny humans with no rights. So just like Gerardo the Doctor commits no battery, unless he happens to perform an unnecessary appendectomy.

Since the health of the mother is not even remotely in mind in the text or intent of the exceptions to criminal homicide found in Section 19.06, the only relevant factual difference that exists between Gerardo and the Doctor is their relative levels of professional ability to make sure the babies are good and dead! But Gerardo and Erica got the job done, so what's the state's beef?

Here's the beef…the Doctor has a license to kill, and Gerardo does not.

So Gerardo goes to prison…for life. And the good Doctor, at the request of loving mothers, goes on to end more little lives…pursuant to the law of the land.

Note

1. Notice the language of Section 19.06 itself: "…death of an unborn child…." The statute does not say fetus, so neither will I for the duration of this article.

June 10, 2005

The Best of Michael Paul Tuuri

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