Idaho double homicide challenges Wyoming law

Jennifer Nalley with her cat, Finn

Jennifer Nalley was full of life. “She was the kind of person who always helped the underdog,” her mother told me. So, when her aging grandparents needed care, it was natural for the physics and math instructor at Texas State University to put her career on hold and move from Austin, Texas to Driggs, Idaho.

Not only was she academically accomplished, she was also a musician and artist. In her spare time, she was known as “Pixie Tourette,” founder of the Texas Rollergirls who helped reignite roller derby into an international phenomenon.  Once in Idaho, she also skated for the Jackson Hole Juggernauts.

It was there that she found love, or so she thought. Her new boyfriend, Erik Ohlson, lived across the border in Wyoming. By early April she was pregnant with his child. But trouble started as soon as he found out. After seeing an ultrasound of the baby, he immediately began pressuring her to abort, according to her family. But she wanted to keep her child.

This scenario is not unusual. An article in the Journal of the American Medical Association estimates that “a pregnant women’s risk of violent domestic abuse is 60.6% greater than a non-pregnant woman, with rates of abuse increasing as the woman gets further along in pregnancy.”

It seems that toxic men feel jealous toward the child when they are no longer the primary objects of the woman’s care. Often, this is coupled with a desperate need to regain control, using violence if necessary.

Text messages from Ohlson seem to fit this profile. He wrote bitterly to a member of Nalley’s roller derby team, “She seems interested in having this baby without me except for when it comes to the money.” But her family insists she wanted neither child support, nor anything else. She wanted the stalking to end. But Ohlson wrote, “I want to strangle her and witness her last mortal moment. I want to see her beg for her life.”

Court documents filed in late November suggest a pattern. In them Ohlson admits that two previous girlfriends aborted his children. What pressure did these women endure? If conversations between Nalley and her parents are any indication, it was brutal.

Erik Martin Ohlson

Ohlson is charged with breaking into her home after midnight on July 5, 2016 and shooting her eight times as she tried to escape. She died at the scene, as did the child she was trying to protect.

Ohlson later told police that he intended it to be a murder-suicide, but he lost his nerve. Tossing the gun away, he deliberately crashed his pickup but not hard enough to be seriously hurt. Now he is awaiting trial for a double homicide.

It has been almost two and a half years since that night. Ohlson’s attorneys have filed numerous motions for delay, change of venue and suppression of evidence. Most of them have been granted and the trial is scheduled to begin in June 2019.

The most recent motion filed was heard last Friday (Dec. 7, 2018). Ohlson’s attorneys are seeking to dismiss the charge of fetal homicide. They argued that “A woman and her doctors can kill an embryo or fetus in the first trimester without repercussions from law.” They want the court to give Ohlson constitutional protection from prosecution for killing his child.

Such logic has a perverse ring of truth about it. But don’t look for the judge to agree. Arguments like this have been rejected by numerous courts in the decades since Roe v. Wade. Already in 1973, the Massachusetts Supreme Court upheld the manslaughter conviction of a man who killed an unborn child.


The logical contradiction between abortion law and fetal homicide law is generally answered by citing a woman’s right to choose. Nowhere is this made clearer than in the opinion written by Anthony Kennedy in Planned Parenthood v. Casey. There he wrote, “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life… A husband has no enforceable right to require a wife to advise him before she exercises her personal choices.”

Ohlson’s attorneys say that placing the entire weight of law upon one person’s choice is insane. In a way, they are right. I pray that one day our world will right itself and acknowledge the scientific facts of human life and personhood.

But until that day arrives, the very least we can do is to make sure the mother’s choice to recognize her baby’s personhood is protected at least as vigorously as another’s choice not to. That’s what fetal homicide laws do.

If these events had taken place a couple of miles east, in Wyoming instead of Idaho, Ohlson would only be facing one murder charge, not two. Wyoming is one of only 12 states that do not recognize a woman’s right to choose her unborn child. State law only recognizes a woman’s choice if she chooses abortion, not if she chooses life.

Kathy Davison, (R-Kemmerer)

Between 2007 and 2010 Wyoming legislators tried to close this legal loophole four times. They were not successful. Wyoming Statute 6-2-502(a)(iv) only recognizes the pregnant woman, but not the obvious fact that she is “with child.”

Contrary to the talking points from NARAL and the ACLU, fetal homicide laws do not go against the precedents established by Roe v. Wade. All such statutes include language exempting women and abortionists from prosecution. Nevertheless, they are bitterly contested because they recognize the personhood of unborn child in murder statute.

The recognition of legal personhood does not, in any way, undermine abortion jurisprudence. It does, however, seriously undermine its logic. That much is clear from Ohlson’s defense attorneys.

If we are going to treat human life itself as if each person has the right to define it for herself, we cannot extend that right only in one direction. Rather than fearing that fetal homicide laws will undermine abortion ideology, groups that are truly pro-woman should be demanding laws that recognize the choice of a woman as legally significant.

Jennifer Nalley made the conscious choice to keep her baby. It was a choice supported by science, by her family and by 84 percent of Americans. She considered her unborn child as a person. Ohlson considered it a threat. Whose evaluation matters if a man is so sick as to kill the child while also silencing the voice of its defender?

Professor Nalley with TSU student

Justice demands that Nalley’s desire to recognize the personhood of her child be upheld in law. It would be grossly unjust if Ohlson and his attorneys were able to negate a mother’s choice even after she died protecting her child.

While Ohlson is from Wyoming, the only way he is being prosecuted for his crime is because it took place on the Idaho side of the border. Wyoming law allows extra time in prison if a murder victim is pregnant but does not acknowledge a second homicide.

Justice is not only about extra months in prison, it is about naming and punishing the reality of the crime. Against this standard, Wyoming’s failure to punish murder as murder is flatly unjust.