In Flores v. State of Texas, (TX Ct. Crim. App., Feb. 13, 2008), the Texas Court of Criminal Appeals rejected an Establishment Clause challenge to the Texas law that defines the killing of an unborn fetus as capital murder. Judges Cochran and Johnson filed a concurring opinion. Texas Penal Code Sec. 1.07(a)(26) defines an "individual" as "including an unborn child at every stage of gestation from fertilization until birth." Sec. 19.03(a)(8) defines capital murder as including the murder of an "inidvidual" under six years of age. Sec. 19.06 excludes from the ban medical abortions or conduct by the mother.
Defendant Gerardo Flores was convicted of murdering his girlfriend's twin fetuses. He argued that the statute criminalizing the murder of a fetus has a religious purpose. The court, however, held that: "Mere consistency between a statute and religious tenets ... does not render a statute unconstitutional.... While some may indeed view a fetus as a human being out of religious convictions, others may reach the same conclusion through secular reasoning or moral intuition unconnected to religion. Moreover, even those who do not view the fetus itself as a person may still want to protect fetal life simply because it represents potential human life."
