Re: Floor Vote on H.R. 503, "The Unborn Victims of Violence Act"
Dear Representative:
The ACLU strongly urges you to oppose H.R. 503, deemed by its sponsors "The Unborn Victims of Violence Act," when it is brought to the House floor for a vote this week.
H.R. 503 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 H.R. 503 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 would 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, H.R. 503 lacks (and, in fact, explicitly disavows) a mens rea requirement. It thus permits a conviction for harm to a fetus even if the perpetrator did not know, and had no reason to know, that the woman was pregnant, and he or she did not intend to cause the harm. Such a result violates the Constitution's due process guarantees.
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 to H.R. 503 is expected to be offered on the floor. Sponsored by Representative Zoe Lofgren, this amendment appropriately does not treat the woman and her fetus as two distinct victims of a crime. Although the ACLU applauds Representative Lofgren's effort to focus on the harm to pregnant women, we have concerns about the approach taken in the proposed amendment. Like H.R. 503 itself, the Lofgren 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 a maximum life penalty for termination of a pregnancy regardless of the stage of gestation, 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. The ACLU is concerned that this approach, while a significant improvement over H.R. 503, nevertheless opens the door to elevating the legal status of a fetus and undermining the principles of Roe v. Wade.
For these reasons, we strongly urge you to vote against H.R. 503 and urge you not to support the Lofgren 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