Interested Persons Memo on Attempts to Create Fetal Rights: The Unborn Victims of Violence Act of 2003 (S. 1019, S. 146, H.R. 1997)

The American Civil Liberties Union (ACLU) opposes ""The Unborn Victims of Violence Act of 2003"" (S. 1019/S. 146, H.R. 1997).  This legislation would amend the federal criminal code and the Uniform Code of Military Justice 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 sponsors of the bill call a ""child in utero.""  Because this bill explicitly 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 criminal conduct.

The ACLU fully supports efforts to punish acts of violence against women that harm or terminate a wanted pregnancy.  The Unborn Victims of Violence Act 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.  Such separation is merely 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.  For this reason, the ACLU opposes this bill, but supports alternative approaches to punishing violence against pregnant women, including enhanced penalties for cases in which a woman suffers not only harm to herself but also to her pregnancy.

This Bill Dangerously Separates the Fetus and the Pregnant Woman.

The ACLU recognizes that a woman may suffer a serious physical and emotional injury if her pregnancy is ended or harmed by an assault, a drunk driving accident, or other criminal acts.  This bill, however, seeks to make a distinction between harm to a pregnant woman and harm to her pregnancy.  By creating a separate offense for injury to a fetus, this bill attempts to endow the fetus with legal rights distinct from the woman who has been injured.  This legislation would thus dramatically alter the existing legal framework by elevating the fetus to an unprecedented status in federal law.

Such a legal shift is not merely a matter of semantics.  The Unborn Victims of Violence Act would undermine the principles underlying the right to reproductive choice -- a result that is the clear aim of the sponsors of this legislation.  As Senator Orrin Hatch (R-UT) recently told CNN, ""They say it undermines abortion right[s].  It does.  But that's irrelevant.""  In fact, it is no accident that anti-choice groups like the National Right to Life Committee have drafted and circulated similar legislation all across the country.  In a 1984 presidential election debate, Ronald Reagan, a well-known opponent of choice, cited a California feticide law as support for regarding abortion as murder, asking, ""Isn't it strange that that same woman could have taken the life of her unborn child and it was abortion, not murder, but if somebody else does it, that's murder?""  These words demonstrate that this legislation is in tension with the right of reproductive choice.

This Bill Permits a Person to be Convicted of Harming a Fetus Even if He or She Did Not Know and Had No Reason to Know that the Woman Was Pregnant

This legislation 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.

Enhanced Punishment for Injury to a Pregnant Woman Can Be Achieved through Properly Crafted Legislation.

The ACLU supports properly crafted legislation aimed at punishing violence against pregnant women that recognizes the additional and significant injury a woman may suffer from loss of, or harm to, a pregnancy.  Criminal interference with a woman's right to bear a child should be prevented and punished.

Legislation that imposes enhanced penalties for criminal acts against pregnant women resulting in harm to their fetuses appropriately punishes the additional injury that such acts cause without recognizing the fetus as a legal entity separate and distinct from the woman.  Such legislation focuses the criminal law where it should be: on the especially devastating loss or injury to the woman that occurs when her pregnancy is compromised.

This bill ignores the unity between the pregnant woman and the fetus she carries.  Penalty enhancements appropriately punish criminal behavior while embracing that unity.