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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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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.
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Twelve 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. |
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Fourteen state laws (AZ, ID, IL, LA, MI, MN, MO, NB, ND, OH, PA, SD, UT,
WI) apply to any state of pre-natal development. |
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Seven states (IN, IA, KS, NH, NM, NC, VA), penalize actions which
terminate a human pregnancy. |
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New York state has conflicting statues. 5 |
Exclusion for abortion:The Unborn Victims of Violence Act of 2003, as introduced, does not permit prosecution:
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"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;
- for conduct relating to any medical treatment of the pregnant woman
or her unborn child; or
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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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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.
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Marie 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." |
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Mavra 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 |
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Bill
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." |
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The 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 |
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
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Rep. 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 |
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The 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 |
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Referring 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 |
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:
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The text of Bill S.146 can be found at:
http://www.theorator.com/
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Judy Holland, "Potomac Watch: Peterson case intensifies debate over
status of fetus," Seattle Post-Intelligencer, 2003-APR-26, at:
http://seattlepi.nwsource.com/
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"Webster v. Reproductive Health Services," (492 U.S. 490), (1989)
- Missouri statute: Mo. Rev. Stat. 1.205.1
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"State Homicide Laws That Recognize Unborn Victims," National Right
to Life Committee, 2002-SEP-23, at:
http://www.nrlc.org/
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Rob Jennings, "Laci Peterson case tied to Roe debate," Daily
Record, Parsippany NJ, 2003-APR-20, at:
http://www.dailyrecord.com/
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"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/
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"Oppose Attempts to Undermine Roe v. Wade," ACLU, 2003-MAR-8, at:
http://www.aclu.org/
- Editorial, The Washington Post, 1999-OCT-2.
- Radio interview with Rep. Petri, 2001-APR-25, at:
http://www.house.gov/
- "The war over fetal rights," Newsweek,
2003-JUN-9 cover story. Online at:
http://www.msnbc.com/
- "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
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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