Legislative Analysis of The Unborn Victims Of Violence Act
Analysis of S. 1673/H.R. 2436 "The Unborn Victims Of Violence Act"
February 18, 2000
The American Civil Liberties Union (ACLU) opposes S. 1673/H.R. 2436. This legislation would amend the federal criminal code and the Uniform Code of Military Justice to create a separate, second offense if, during the commission of certain crimes, an individual causes the death of, or bodily injury to, what sponsors of the bill call a "child in utero." Because S. 1673/H.R. 2436 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 8 of a pregnancy), or a fetus as an independent "victim" of a crime, with legal rights distinct from the woman who has been harmed.
The ACLU fully supports efforts to punish acts of violence against women that harm or terminate a wanted pregnancy. S. 1673/H.R. 2436 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.
S. 1673/H.R. 2436 Dangerously Separates the Rights of the Fetus and the 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. S. 1673/H.R.2436, 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, S. 1673/H.R. 2436 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. It would undermine the principles underlying the right to reproductive choice -- a result that is the clear aim of the sponsors of S. 1673/H.R. 2436. It is no accident that anti-choice groups like Americans United for Life 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 irreconcilable tension with the right of reproductive choice.
S. 1673/H.R. 2436 Lacks a Necessary Mens Rea Requirement.
This legislation explicitly disavows a mens rea requirement as an element of the crime and thus disregards the Constitution's promise that citizens are entitled to due process of law. Due process requires that criminal laws contain a mens rea provision, which specifies that the perpetrator of the crime must have a criminal -- and not an innocent - intent in committing the crime. Courts have struck down criminal statutes on the grounds that they lack this requisite mental intent element, and thus punish conduct engaged in innocently.
But S. 1673/H.R. 2436 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 the harm. Furthermore, because the bill does not require a conviction for the underlying crime, the separate offense of harm to a zygote, blastocyst, embryo or fetus can be proven without any showing of intent whatsoever. Such a result violates the Constitution's due process guarantees.
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 wanted 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.
S. 1673/H.R. 2436 ignores the unity between the pregnant woman and the fetus she carries. Penalty enhancements appropriately punish criminal behavior while embracing that unity.