Key Points on the Unborn Victims
of Violence Act
(HR 2436, S. 1673)

October 8, 1999

On September 30, 1999, the House of Representatives approved the Unborn Victims of Violence Act (HR 2436), introduced by Congressman Lindsey Graham (R-SC), by a vote of 254-172. Companion legislation (S. 1673) has been introduced in the Senate by Senator Mike DeWine (R-Ohio). The full text of the House-passed bill is available at the NRLC website at www.nrlc.org.

The Unborn Victims of Violence Act would establish that if an unborn child is injured or killed during commission of an already-defined federal crime of violence, then the assailant may be charged with a second offense on behalf of the second victim, the unborn child. The bill would recognize that when a criminal attacks a pregnant woman, and injures or kills her unborn child, he has claimed two human victims. The bill would apply this two-victim principle to 70 existing federal laws dealing with acts of violence. These laws affect federal geographical jurisdictions, the military justice system, protection of federal officials, and specific acts defined by law as federal crimes (such as certain terrorist bombings).

In current federal criminal law, an unborn child is not recognized as a victim with respect to violent crimes. Thus, for example, if a criminal beats a woman on a military base, and kills her unborn child, he can be charged only with the battery against the woman, because the unborn child's loss of life is not recognized by the law. This gap in federal law results in grave injustices, some real-world examples of which were given by Congressman Charles Canady (R-Fl.), chairman of the House Judiciary Constitution Subcommittee, at a July 21, 1999, hearing on the bill. Chairman Canady's statement is posted at http://nrlc.org/news/1999/NRL899/cana.html.

However, 24 states have already enacted laws which recognize unborn children as human victims of violent crimes. Eleven (11) of these states provide this protection throughout the period of in utero development, while the other 13 provide protection during specific stages of their development. For detailed information on state unborn victim laws, see "State Homicide Laws That Recognize Unborn Victims," available at www.nrlc.org/Whatsnew/ sthomicidelaws.htm. The Unborn Victims of Violence Act would not supersede state unborn victim laws, nor would it impose such a law in a state that has not enacted one. Rather, the bill applies only to unborn children injured or killed during the course of already-defined federal crimes of violence.

The bill does not apply to any abortion to which a woman has consented, to any act of the mother herself (legal or illegal), or to any form of medical treatment. Nevertheless, NRLC supports the bill because it achieves other pro-life purposes that are worthwhile in their own right: the protection of unborn children from acts of violence other than abortion, the recognition that unborn children may be victims of such violent criminal acts, and the punishment of those who harm unborn children while engaged in federally prohibited acts of violence.

It is well established that this type of legislation does not conflict with the Supreme Court's pro-abortion decrees (Roe v. Wade, etc.). Criminal defendants have brought many legal challenges to the state unborn victim laws mentioned above, based on Roe and other constitutional arguments, but all such challenges have been rejected by the courts. (A list of pertinent court decisions is available on request.)

Moreover, in the 1989 case of Webster v. Reproductive Health Services, the U.S. Supreme Court refused to invalidate a Missouri statute that declares that "the life of each human being begins at conception," that "unborn children have protectable interests in life, health, and well-being," and that all state laws "shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," to the extent permitted by the Constitution and U.S. Supreme Court rulings. A lower court had held that Missouri's law "impermissibl[y]" adopted "a theory of when life begins," but the Supreme Court nullified this ruling, and held that a state is free to enact laws that recognize unborn children, so long as the state does not include restrictions on abortion that Roe forbids. The Minnesota Supreme Court agreed in its ruling upholding the Minnesota law: "Roe v. Wade . . . does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].

In one area, federal criminal law already recognizes that an unborn child is not merely a "condition" of the mother. In 1994, Congress codified a long-standing common law doctrine by enacting a flat prohibition on the execution of any woman who carries an unborn child. (18 U.S.C.A. §3596: "A sentence of death shall not be carried out upon a woman while she is pregnant.") We doubt that any member of Congress even the most zealous advocate for "abortion rights," or even the most vigorous supporter of the death penalty would favor the repeal of that law. After all, who does not recoil from the very thought of what the U.S. Supreme Court described (in upholding the common law doctrine, in Union Pacific Railway v. Botsford) as "the taking of the life of an unborn child for the crime of the mother"? And yet, whether one favors or opposes the death penalty in principle, there is really no rational basis for delaying the execution of a woman merely because she is pregnant except the knowledge that such an act would take two human lives, not just one. The Unborn Victims of Violence Act would simply extend, into the rest of the federal criminal code, the same commonsense recognition embodied in 18 U.S.C.A. §3596: that when a criminal attacks a pregnant woman, injuring or killing her and injuring or killing her unborn child, he has claimed two victims.

HR 2436 has come under vehement attack from pro-abortion groups such as NARAL, Planned Parenthood, and the ACLU. Even though the bill deals with acts of violence other than abortion, the pro- abortion lobby's ideology apparently compels it to deny the very existence of unborn human beings in any area of the law. Therefore they have proposed alternative legislation, the " Motherhood Protection Act" or Lofgren Amendment, which the House of Representatives rejected on September 30, 1999. This proposal does not mention the unborn child (by whatever name), but instead defines the offense as one of "interruption to the normal course of the pregnancy." This approach would codify a transparent falsehood the notion that there is only one victim in these crimes. In the real world, however, when an unborn child loses her life in a criminal attack, the parents and society mourn the death of a separate individual, rather than viewing it simply as an additional injury to the mother. Moreover, arguments in favor of the one-victim proposal are internally inconsistent and illogical. Supporters of the one- victim approach insist that when a criminal injures a mother and kills her unborn child, there has been only a compound injury to the mother, rather than the loss of any human life yet, the Lofgren Amendment would impose a penalty (up to life in prison) commensurate with loss of human life. Also, advocates of the one- victim approach argue that when a criminal assailant kills a pregnant woman, the assailant should be punished twice: once for killing the mother and then again for depriving her of her " pregnancy" but if there is only one victim, it is difficult to see why this would not be a duplicative criminal charge, since legally speaking a woman who has been killed cannot herself suffer an additional "loss."

Some opponents of the bill have charged that the bill would punish harm to the unborn child "utterly ignoring the harm to the pregnant woman." Others have charged that the bill would "separate the mother from her fetus." These objections reflect misunderstandings or misrepresentations of how the bill is structured. In reality, the bill would allow the government to win a conviction for harm to an unborn child only if it first proves that the defendant violated one of the 70 enumerated federal laws with respect to the mother.

Some opponents of the bill have charged that it would allow defendants to be convicted without a showing of intent to do harm. This is false. Under the bill, it is necessary to prove beyond a reasonable doubt that a defendant had intent to do criminal harm, at least towards the mother. If such criminal intent towards the mother is proved, then the defendant also will be held responsible for the harm done to the unborn baby, under the doctrine of "transferred intent." As the House Judiciary Committee report explains, transferred intent is a well- established principle in the law. (If a man shoots at a woman with intent to kill, and the bullet misses her, passes through a wall, and kills a child who the shooter did not know was there, he can be convicted of the murder of the child.) As the Minnesota Supreme Court ruled in upholding the Minnesota unborn victims law, "The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].

In order to win a conviction under the bill, it would be necessary for the prosecution to prove beyond a reasonable doubt that a human being (1) already existed, and (2) was "carried in the womb," which would be utterly impossible until after the embryo had implanted in the womb and sent out the chemical signals that announce his or her presence (i.e., after implantation). Moreover, even after the prosecution has met that burden, it must also prove beyond a reasonable doubt that a defendant's criminal conduct caused the death of the child in utero. The mere possibility or even the strong likelihood that a defendant's criminal conduct caused a baby's death would not suffice the bill requires proof beyond a reasonable doubt.

National Right to Life attorneys and legislative staff are available to discuss this issue with journalists and congressional offices. Please call (202) 626-8820, or e-mail to: Legfederal@aol.com. Extensive additional information on the federal bill and on state unborn victims law is available at the NRLC website at www.nrlc.org.