With less than two weeks before Major Nidal Malik Hasan is scheduled to appear for a hearing into the November 5, 2009 shootings at Fort Hood, Texas, one "sleeper" issue is sure to come back to the fore.

Among the thirteen people Hasan left dead that day was 21-year old Private Francheska Velez. Just back from deployment in Iraq, Private Velez was six weeks pregnant. Pro-life activists have been requesting an additional count of murder be added to the list of charges for the Velez fetus.

There is legal foundation for the charge. In 2004, when Congress passed the Unborn Victims of Violence Act, it explicitly added a section to the Uniform Code of Military Justice (UMCJ), Article 119(a), allowing a murder charge to be brought in the death of "a member of the species homo sapiens, at any stage of development, who is carried in the womb." A fertilized egg is just as eligible as a full-term fetus for this protection.

"We believe that the murder of Private Velez's unborn child must be prosecuted under this section of the UMCJ," said the Texas Conservative Coaltion in a December 2009 letter to Secretary of the Army John McHugh. "Indeed, such action would underscore the fundamental point that unborn children must be afforded the legal protections against individuals, such as homicide." The letter was signed by 31 members of the Texas House.

For most of American legal history, there were no laws regarding feticide, although some states did recognize the "born-alive rule"....i.e., if a baby was born and subsequently died as the result of a crime against (or sometimes by) the mother, murder charges could then be brought for the baby's death.

Fetal homicide laws have been one of the favorite tactics of anti-choice activists since the 1990s. Unable to overturn Roe v Wade, they are working to erode it instead: restricting access to providers and using every opportunity to codify the idea of fetal "personhood" in the law and in the public mind. Currently, 38 states have fetal homicide laws, with 21 states -- and the Federal government -- setting the threshold at the very earliest stages of conception. 

In November, reporter Nancy Montgomery of Stars & Stripes pointed out that the Army has never successfully prosecuted a case under Article 119(a) -- in fact, it's only brought the charge once, in 2007, and it was dismissed on appeal. The military as a whole has been more than willing to let these cases be tried in state courts rather than the military justice system. 

With one exception: Last May, Air Force Airman 1st Class Scott Boie of Elmendorf Air Force Base, Alaksa, was convicted of assulting and attempting to murder his unborn child after lacing his pregnant wife's food with a drug known to cause miscarrages.

Although she did miscarry, the 10-member panel did not find Boie guilty of intentional murder of the fetus. While he faced a maximum sentence of 26 1/2 years, he was eventually given a 9 1/2 year term in prison and dishonorable discharge.

Hasan is a Muslim-American charged in the worse known massacre of fellow soldiers ever to happen on American soil, probably in no small part because the military failed to see that he was headed for a big, noisy, dangerous crash. Bringing a fetal homicide charge will "add another layer of complexity and politics in an already big, emotionally-fraught case," says Montgomery.

"He's got 13 murder raps on him," says David Court, a military defense attorney based in Germany. "Why complicate the issue?"
 
And why exploit an already overwhelming tragedy? Many fetal homicide laws have been passed on the backs of dead pregnant women. The Unborn Victims of Violence Act floundered in Congress for years...until the murder of Laci Peterson. Rename it "Laci and Conner's Law," trot the woman's grieving, angry parents in front of the cameras, and voila, a new law is born. The Vermont Legislature just tabled a debate on a bill that would have overturned longstanding precedent -- a bill brought after death of a pregnant woman in a car crash.

The people calling for charges in the murder of Francheska Velez's fetus did not know her or how she might have felt about being adopted as the poster-child for the pro-life movement.

Perhaps she would rather have been remembered as an American soldier who died in the service of her country, like thousands of men and women who had gone before her.