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Unborn Victims of Violence Act of 2003: Bill S. 146

When does an embryo or fetus become a human person?

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Sponsored link.


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About the federal bill:

The original event which led to the writing of this bill was the killing of Tracy Marciniak's unborn fetus, and her unsuccessful quest for justice in Wisconsin. She was allegedly assaulted by her estranged husband, Glenndale Black, on 1992-FEB-8. He is reported as having hit her twice on the abdomen. She was four or five days away from full term pregnancy. Her husband initially refused to call 911 or to allow her to call. The fetus was a boy who they planned to name Zachariah. He died and she was not expected to live. But she survived only to find that, in her state of Wisconsin, a fetus is not considered a human person until it is born. The husband was charged with first degree reckless injury and false imprisonment. But he was not charged with homicide for causing the death of the fetus. Tracy spearheaded a movement which changed the Wisconsin legal code in 1998. 10 However, there is a gap in the state legislation. It does not apply to crimes committed on federal property.

Tracy Marciniak and others promoted a federal Unborn Victims of Violence law to close this loophole. In 1999, 2000, 2001, and 2002, the House passed these bills, but the Senate killed them. In 2003-JAN-13, Mike DeWine (R-OH) introduced Bill S. 146 in the U.S. Senate to "protect unborn victims of violence." 1 On 2003-APR-25, President George W. Bush urged passage of the bill. It "would recognize a fetus as an independent [human] being if killed or injured during the commission of a federal crime." 2

If the bill is signed into law, it would allow a person convicted of injuring or killing a fetus during the commission of certain federal crimes to be charged with a second, separate offense. Punishment would be that same as if similar injury or death had occurred to the woman carrying the fetus, except that the death penalty could not be imposed. The prosecution would not have to prove that the perpetrator was aware that the woman was pregnant, or that the perpetrator intended to cause the death or injury to the fetus.

The bill uses the terms "child in utero," "child," and "unborn child" to refer to "a member of the species homo sapiens, at any stage of development, who is carried in the womb." This clearly includes, as a minimum, the full interval of pregnancy, starting when the blastocyst (fertilized ovum) is fully attached to the wall of the uterus and continuing to birth.

In practice, the law would have little impact, since it would only apply to crimes committed in such places as a military base, a post office, bank, or a Native reservation. It would not apply generally throughout the U.S.

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Similar state laws:

In a famous decision, "Webster v. Reproductive Health Services," the U.S. Supreme Court acknowledged that states can pass laws that recognize that fetuses and embryos are human persons deserving of protection under law, as long as the states do not unduly restrict abortion access. 3 This case declared a Missouri law to be constitutional. It 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." 4 A lower court had found that Missouri's law "impermissibl[y]" adopted "a theory of when life begins." However, the U.S. Supreme Court overruled the lower court's decision.

As of mid-2003, 28 states have fetal-homicide laws in place which recognize embryos or fetuses as child victims. 11 Some of these are "fetal homicide" laws which allow prosecutors to seek a double murder charge when a pregnant woman is killed within their state.

bulletTwelve state laws (AR, CA, FL, GA, MA, MS, NV, OK, RI, SC, TN, WA) only apply to pregnancies after quickening, or during the fetal stage, or after the fetus is viable -- i.e. it could survive outside the womb.
bulletFourteen state laws (AZ, ID, IL, LA, MI, MN, MO, NB, ND, OH, PA, SD, UT, WI) apply to any state of pre-natal development.
bulletSeven states (IN, IA, KS, NH, NM, NC, VA), penalize actions which terminate a human pregnancy.
bulletNew York state has conflicting statues. 5

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Exclusion for abortion:

The Unborn Victims of Violence Act of 2003, as introduced, does not permit prosecution:

  1. "for conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency;
  2. for conduct relating to any medical treatment of the pregnant woman or her unborn child; or
  3. of any woman with respect to her unborn child."

That is, abortion providers and other medical personnel could not normally be prosecuted under this bill. Also a woman who kills or hurts her own embryo or fetus would be immune from prosecution.

This essay continues below.

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Sponsored link:

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Renewed support for the bill:

Laci Peterson, who was in her eight month of pregnancy, dissapeared on 2002-DEC-24 and was apparently a victim of a homicide. Both her body and that of her fetus were found in 2003-APR on the shore of San Francisco Bay. Her husband has been charged under California law with a double homicide, for allegedly killing his wife and unborn fetus. Although that state does not exercise the death penalty for a single murder, those found guilty of multiple murders can be executed under California's "special circumstance" clause. Although federal charges could not be laid, even if an Unborn Victims of Violence law existed, this crime has generated a great deal of support for the bill in Congress.

bulletMarie Tasy, spokesperson for New Jersey Right To Life, considers the charge appropriate. She said that "Obviously he [the unborn son] was wanted by the mother...Clearly groups like NOW are doing a great injustice to women by opposing these laws. It just shows you how extreme, and to what lengths, these groups will go to protect the right to abortion."
bulletMavra Stark president of the Morris County NJ National Organization of Women (NOW) said: "If this is murder, well, then any time a late-term fetus is aborted, they could call it murder...There's something about this that bothers me a little bit. Was it born, or was it unborn? If it was unborn, then I can't see charging (Peterson) with a double-murder....He was wanted and expected, and (Laci Peterson) had a name for him, but if he wasn't born, he wasn't born. It sets a kind of precedent.6
bulletBill co-sponsor Senator Mike DeWine said the case has really put "the spotlight on the issue." He said: "Particularly with this horrible tragic case in the news, it reinforces the reality that an unborn child can be the victim of a crime. I think this brings home to people that there is a victim and it makes it personal when we see this on TV night after night."
bulletThe National Right to Life Committee sent a letter to all U.S. Senators in support of the 2001 version of the Unborn Victims of Violence Act. They wrote: "If a criminal shoots a pregnant woman, wounding her and killing her unborn child, has the criminal taken a human life? In the 24 states that recognize unborn victims in their criminal laws, the answer is 'yes,' under all or some circumstances. But if the crime occurs within a federal jurisdiction - - for example, a military base - - the answer is currently 'no.' In order to allow justice to be done in such cases, we urge that you support the Unborn Victims of Violence Act....The Unborn Victims of Violence Act would recognize that when a criminal commits a federal crime against a pregnant woman and injures or kills her unborn child, he has claimed two victims....The bill creates no new federal crimes. Rather, it would come into play only when federal authorities have cause to arrest someone for an offense against a woman in one of 68 already-defined federal crimes of violence, by allowing them to bring a second charge if there has been a second victim, an unborn child." 7

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Opposition to the bill:

Pro-choice groups generally oppose the bill because it would classify a fetus, embryo and at least some blastocysts as a legal person deserving of the full protection of law. This could later be used as a precedent to restrict or eliminate women's access to abortion. The 14th Amendment to the U.S. Constitution prohibits states from depriving "any person of life, liberty or property without due process of law." Unfortunately, the Constitution does not define when human life becomes a human person.

Some comments opposed to S. 146

bulletRep. Jerrold Nadler, (D-NY), a supporter of abortion access, believes that pro-lifers "...are trying to establish the fetus as a separate person under the law. It has nothing to do with domestic violence or the severity of the crime. What they want to do under the guise of domestic violence is lay the groundwork for abolishing abortion rights. That is violence against women." 2
bulletThe American Civil Liberties Union, a major supporter of abortion access, recommends defeat of the bill. They state that the bill "...was drafted with the assistance of the National Right to Life Committee. It would be the first federal law to recognize a fetus at any stage of development, from conception forward, as an independent "victim" of a crime with legal rights distinct from the woman who has been harmed by a violent criminal act....Although proponents claim that this bill is intended merely to punish violent offenders, it is in reality a dangerous attempt to separate a woman from her fetus in the eyes of the law. Such separation is the first step toward eroding a woman's right to determine the fate of her own pregnancy and to direct the course of her own health care. It is no accident that anti-choice lawmakers have rejected proposals that would appropriately punish violence against women without undermining reproductive freedom....Instead of creating a separate offense, the law should enhance the penalty when a criminal act results in harm not only to a pregnant woman, but to her pregnancy. Only then will the legislation focus the criminal law where it should be: on the particularly devastating loss or injury to the woman that occurs when her pregnancy is compromised." 8
bulletReferring to an earlier version of the bill, The Washington Post published an editorial stating: "While the bill specifically exempts abortion, it is a clever, if transparent, effort to establish a foothold in the law for the idea that killing a fetus can be murder. What makes this bill a bad idea is the very aspect of it that makes it attractive to its supporters: that it treats the fetus as a person separate from the mother, though that same mother has a constitutional right to terminate a pregnancy. This is a useful rhetorical device for the pro-life world. But it is analytically incoherent." 9

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Ambiguity in the bill:

As noted above, the bill clearly applies to the full interval of pregnancy, starting about 12 days after conception -- when the blastocyst (fertilized ovum) has fully attached itself to the endometrial lining of the uterus -- until actual childbirth. This would include all human embryos and fetuses. However, it is unclear whether the bill would apply to the situation before pregnancy begins, when a blastocyst has traveled down the fallopian tubes, has entered the womb, but has not attached itself to the uterine wall. It can be argued that such a blastocyst is certainly "carried in the womb" and thus would be protected by this bill. A pharmacist who dispensed emergency contraception to a woman to prevent pregnancy might not be protected from prosecution under this bill, because his actions might not be interpreted as "medical treatment of the pregnant woman..." Thus, a pharmacist on a military base or Native reservation could conceivably be charged with the murder of a blastocyst.

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Activity in Congress:

On 2004-FEB-26, the U.S. House of Representatives passed the Unborn Victims of Violence Act, H.R. 1997, also known as "Laci and Conner's Law," by a vote of 254 to 163. Douglas Johnson, Legislative Director of the National Right to Life Committee commented: "This bill would recognize, for federal crimes, that when a criminal attacks a woman and kills her unborn child, he has claimed two victims. Advocacy groups like the ACLU oppose the bill because they insist that such a crime like the killing of Laci and Conner Peterson has only one victim, but 80% of the public favors a double homicide charge in such a case." 12

These bills have always been blocked by Democrats in the Senate, using various procedural techniques. As of 2004-MAR-16, the Senate has never voted on this type of bill.

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References:

  1. The text of Bill S.146 can be found at: http://www.theorator.com/
  2. Judy Holland, "Potomac Watch: Peterson case intensifies debate over status of fetus," Seattle Post-Intelligencer, 2003-APR-26, at: http://seattlepi.nwsource.com/
  3. "Webster v. Reproductive Health Services," (492 U.S. 490), (1989)
  4.  Missouri statute: Mo. Rev. Stat. 1.205.1
  5. "State Homicide Laws That Recognize Unborn Victims," National Right to Life Committee, 2002-SEP-23, at: http://www.nrlc.org/
  6. Rob Jennings, "Laci Peterson case tied to Roe debate," Daily Record, Parsippany NJ, 2003-APR-20, at: http://www.dailyrecord.com/
  7. "NRLC Letter to U.S. Senators in Support of Unborn Victims of Violence Act," 2001-MAY-8, National Right to Life Committee, at: http://www.nrlc.org/
  8. "Oppose Attempts to Undermine Roe v. Wade," ACLU, 2003-MAR-8, at: http://www.aclu.org/
  9. Editorial, The Washington Post, 1999-OCT-2.
  10. Radio interview with Rep. Petri, 2001-APR-25, at: http://www.house.gov/
  11. "The war over fetal rights," Newsweek, 2003-JUN-9 cover story. Online at: http://www.msnbc.com/
  12. "U.S. House Passes Bill to Recognize Unborn Child as Second Victim of Violent Crimes, 254-163; Sharon Rocha Rebukes Senate Democrats for Obstruction," National Right to Life Committee, 2004-FEB-26, at: http://www.nrlc.org

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Copyright 2003 & 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2003-APR-27
Latest update: 2004-MAR-16
Author: B.A. Robinson

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