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

When does an embryo or fetus become a human person?

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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.

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.

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.

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.

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 14^th 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

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.

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.

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