Oppose ""The Unborn Victims of Violence Act"" (S. 146/S. 1019)
Dear Senator:
The ACLU strongly urges you to oppose S. 146/S. 1019, deemed by its sponsors ""The Unborn Victims of Violence Act,"" when it is considered on the Senate floor as early as today. This bill unnecessarily undermines reproductive freedom, when alternative approaches to punishing violent crimes against women exist.
S. 146/S. 1019 would amend the federal criminal code to create a new, separate offense if, during the commission of certain federal crimes, an individual causes the death of, or bodily injury to, what the sponsors call a ""child in utero."" Because S. 146/S. 1019 applies to all stages of prenatal development, it would be the first federal law to recognize a zygote (fertilized egg), a blastocyst (pre-implantation embryo), an embryo (through week eight of a pregnancy), or a fetus as an independent ""victim"" of a crime with legal rights distinct from the woman who has been harmed by a violent criminal act.
The ACLU fully supports efforts to punish acts of violence against women that harm or terminate a wanted pregnancy. This bill is an inappropriate method of imposing such punishment, however, because it dangerously seeks to separate the woman from her fetus in the eyes of the law. It could dramatically alter the existing legal framework, elevate the fetus to an unprecedented status in federal law, and undermine the foundations of the right to choose abortion.
In addition, S. 146/S. 1019 explicitly disavows a mens rea (or criminal intent) requirement with respect to the harm to the fetus and thus is in tension with the Constitution's Due Process guarantees. The bill permits a person to be convicted of the offense of harm to a fetus even if he or she did not know, and had no reason to know, that the woman was pregnant, and he or she did not intend to cause harm to the fetus. Such a result undermines the Constitution's promise of due process.
Criminal interference with a woman's right to bear a child should be prevented and punished. Legislation that imposes enhanced penalties for violent acts that intentionally compromise a pregnancy appropriately punish the additional injury a woman suffers without recognizing the fetus as a legal entity separate and distinct from the woman who has been harmed.
A substitute amendment is expected to be offered on the floor. Sponsored by Senator Diane Feinstein, this amendment appropriately does not treat the woman and her fetus as two distinct victims of a crime. Although the ACLU applauds Senator Feinstein's effort to focus on the harm to pregnant women, we have concerns about the approach taken in the proposed amendment. Like S. 146/S. 1019 itself, the Feinstein amendment appears to permit charging a person with the interruption or termination of a pregnancy as a second, separate offense, in addition to the underlying criminal offense that resulted in harm to the pregnant woman. The amendment also provides for the same punishment for termination of a pregnancy regardless of the stage of gestation, as a defendant would receive for the same offense if perpetrated against the woman herself, which could be interpreted as equating harm to a fetus with harm to a person. Like the underlying bill, the amendment also fails to require criminal intent. For these reasons, while the substitute amendment is a significant improvement over S. 146/S. 1019, the ACLU remains concerned about its approach.
For these reasons, we strongly urge you to vote against S. 146/S. 1019 and urge you not to support the Feinstein substitute. We welcome the opportunity to work with you on properly crafted legislation that will deter and punish violence against pregnant women without compromising a woman's right to choose.
Sincerely,
Laura W. Murphy
Director
Gregory T. Nojeim
Associate Director and Chief Legislative Counsel