While 36 other states have laws that allow a defendant to be charged with homicide in connection with the death of a fetus, New Mexico does not.

That has prosecutors debating whether to invoke a "criminal abortion" statute against the 22-year-old Santa Fe man who police say killed his unborn son last month while shooting to death his pregnant ex-girlfriend and her father.

The case of Marino Leyba Jr., currently charged with two counts of murder, also has spurred backers of a fetal homicide law in New Mexico who say they will try again to get such a bill through the Legislature.

Leyba cannot be charged with homicide in connection with his unborn son's death because existing law in New Mexico doesn't consider a fetus to be a human being, District Attorney Angela "Spence" Pacheco has said.

Pacheco said Friday that the only criminal statute under which her office could charge Leyba with the death of the 9-month-old fetus is one against criminal abortion, a second-degree felony when the mother dies.

She said prosecutors are still discussing whether to use that statute, which has been interpreted to penalize performing abortions on "the unconsenting." The statute states that "criminal abortion consists of administering to any pregnant woman any medicine, drug or other substance, or using any method or means whereby an untimely termination of her pregnancy is produced, or attempted to be produced, with the intent to destroy the fetus, and the termination is not a justified medical termination."

Another statute — titled "Injury to pregnant woman" — isn't an option, Pacheco said, because it applies only to harming the mother. If Leyba pleaded guilty to such a charge, he couldn't be charged with first-degree murder in connection with Sarah Lovato's death because it would constitute double jeopardy.

Police say Leyba, a local security guard, used the 9 mm handgun that he carried in the course of his job to shoot Lovato three times in the belly and upper torso May 22 at a south-side apartment complex. Police believe he intentionally targeted the unborn boy, who was his biological son. Leyba also shot Lovato's father, Bennie Lovato Sr., three times in the upper torso, killing him as well.

"We're having many dialogues about this," Pacheco said. "But we don't make the law, we follow the law. And until the Legislature (changes the law), we can't do anything."

A group of law enforcement personnel who want the state to do exactly that is in the process of being formed. In addition, an Albuquerque Republican member of the state House of Representatives, who introduced a fetal homicide bill four years ago, and the director of a state anti-abortion organization also said they would be interested in re-visiting proposals for such a law.

"Just looking at the autopsy photos, it's clear we're talking about a baby boy here and not a fetus," Santa Fe police Capt. Gary Johnson said. "I was unaware that we didn't have a law that would protect a baby in the later stages of pregnancy. It's wrong (not to have such a law). This is not an issue of pro-choice or pro-life. It's an issue of protecting a pregnant woman and her child."

Johnson said he's forming a committee at the city Police Department of people interested in changing the law, and has already contacted Sharon Pino, Gov. Bill Richardson's domestic violence czar, to begin a preliminary dialogue on the subject.

Jose Villegas Sr., the department's chaplain, said he will help form that committee as well.

"Brother, let me tell you, I've been to a lot of incidents," Villegas said. "This one was very heartfelt from a dad perspective. I have a daughter and a son. I took it on a personal level. You can't tell me that was an animal. It was a baby."

Pino said she'd welcome talks on the issue, but that any action should not be undertaken haphazardly in order to avoid "unintended consequences." Still, she called the recent deaths "horrific" and said they've had "an incredible impact in the community."

"This is a real eye-opener for our community," Pino said. "We feel like we're moving forward and getting things in place, and something like this happens and it's such a setback."

According to a recent study by the National Conference of State Legislatures, 19 of the 36 fetal homicide laws adopted by various states apply to a fetus in any stage of pregnancy.

In recent years, some states have decided to increase the criminal penalties for crimes involving pregnant women and the subsequent loss of the fetus, the study says. Such laws have focused on the harm done to the woman and the fetus, not the rights of the fetus, the study says.

However, other laws, often supported by abortion opponents, say the lives of both the mother and the fetus should be explicitly protected, according to the study.

Abortion-rights advocates say such laws create a "slippery slope" that could jeopardize a woman's right to choose an abortion and could create an adversarial relationship between the woman and the fetus, the study states. They are also concerned that such laws could be applied if a woman drinks alcohol, smokes or uses drugs while pregnant, the study says.

Former President George W. Bush signed a federal fetal homicide law in April 2004. That law was passed in the wake of the murder of Laci Peterson, who was eight months' pregnant when she was killed and her body thrown into the San Francisco Bay. Her husband, Scott Peterson, was convicted of first-degree murder in her death and of second-degree murder in the death of her unborn son.

State Rep. Larry Larranaga, R-Albuquerque, in 2005 introduced a bill titled "Unborn Victims of Violence Act," which failed in committee. He said Friday that he remembers testimony at the time from people who said such a law was unnecessary and that the courts would view the murder of a fetus as homicide. However, Larranaga didn't remember who provided such testimony, and a review of New Mexico case law found no evidence that courts have ever ruled that way.

If, in fact, Leyba can't be charged with homicide in connection with the death of the fetus, Larranaga said, he would be interested in re-introducing such a bill.

"I think there's a need for that," he said. "I think it gives us good reason to bring it back up. We need some kind of legislation to address that issue."

Dauneen Dolce, executive director of New Mexico Right to Life Committee, agreed. "This is something that should be done by law lickety-split," she said. "No one should be able to go out and murder a child and not be charged with homicide."

Attempts to reach representatives of NARAL Pro-Choice New Mexico on Friday were not successful.

State Rep. Mimi Stewart, D-Albuquerque, referring to the U.S. Supreme Court decision that legalized abortion, said any attempt to draft a fetal homicide law "gets complicated because you don't want to impact Roe v. Wade, and that's an issue."

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.

FETAL HOMICIDE LAWS

The following states have fetal homicide laws:

Alabama, Alaska, Arizona, Arkansas, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin.