In Flores v. State of Texas, (TX 9th Ct. App., Jan. 24, 2007), a Texas state court of appeals rejected an Establishment Clause challenge to a provision of Texas criminal law that defines capital murder as including the murder of "an unborn child at every stage of gestation from fertilization until birth". The claim was raised in an appeal of a conviction by Gerardo Flores who had been sentenced to life in prison for killing his girlfriend's twin sons in utero by hitting the pregnant woman and stepping on her abdomen. Flores had argued that the statute was unconstitutional because it adopted a religious view of the commencement of life. The court, however, said that a statute does not violate the Establishment Clause merely because it is consistent with religious views. It said that the challenged statute does not foster excessive government entanglement with religion, but rather protects the future viability of the unborn child.
The court also rejected Flores equal protection claim that focused on the fact that the statute excepts from punishment a pregnant mother who aborts a fetus, while it punishes a biological father who takes action to do so.
