H.R. 2436, The Proposed "Unborn Victims of Violence Act of 1999"

Written Testimony of Peter J. Rubin,

Visiting Associate Professor of Law,

Georgetown University Law Center

Before the Subcommittee on the Constitution of the

House Committee on the Judiciary

July 21, 1999

I have been asked by this subcommittee to review and comment upon H.R. 2436, which would create a separate federal criminal offense where criminal conduct prohibited under a list of over sixty federal statutes, in the words of the proposed law "causes the death of, or bodily injury . . . to a child, who is in utero." I am honored to have the opportunity to convey my views to the subcommittee.⁽¹⁾

Where an act of violence against a pregnant woman results in a miscarriage, that act of violence has wrought a distinct and unique harm in addition to the harm it would have done had the woman not been pregnant. Similarly, injury to a baby that may result from unlawful violence perpetrated upon its mother when it was a fetus in utero is something from which government may properly seek to protect the woman and the child.

Consequently, although many states adhere to the traditional rule that the criminal law reaches only conduct against a person already born alive, some states have enacted laws that penalize conduct that may kill or, in some cases, injure, a fetus in utero. One example is North Carolina's state statute which provides that

A person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which injury results in a miscarriage or stillbirth by the woman is guilty of a felony that is one class higher than the felony committed.

N.C. Gen. State. §14-18.2.

If the members of Congress conclude that causing injury in this way during the commission of a federal crime warrants additional punishment, it, too, could adopt such a provision. Indeed, it seems as though this is one area on which both sides of the debate about abortion might be able to find common ground in supporting a properly worded statute that might give additional protection to women and their families from this unique class of injury.

As currently drafted, however, the proposed statute differs from some state laws on this issue in two critical respects. First is its use of the phrase "child, who is in utero" to describe the fetus. This is not the ordinary way statutes refer to fetuses in utero. Indeed, the proposed law appears to be unique in its use of this formulation. The use of this language will likely subject H.R. 2436 to legal challenge, and will likely render the proposed law ineffective in preventing and punishing acts that harm or kill fetuses being carried by pregnant women.

Second is the bill's treatment of the fetus solely as a separate victim of certain federal crimes. This approach is different from that taken by some states that have enacted criminal laws addressing fetal injury or death in that it fails to focus at all on the woman who is the victim of the violence that may injure or kill the fetus. It would be far easier to reach common ground with an approach that takes account of the place of the pregnant woman when acts of violence against her lead to fetal injury or death. Indeed, the approach taken by the current statute may lead to some unintended results, and is not consistent with the treatment of the fetus in the American legal tradition.

To begin with, the proposed law refers to "a child, who is in utero at the time the conduct takes place." Because it uses these words, the proposed law would likely result more in useless litigation about the statute's meaning than in the prevention and punishment of conduct that results in fetal injury or death. It's use of the phrase "child, who is in utero" may give a defendant an argument that the statute is ambiguous, and that he lacked the notice of what acts are criminal that is required by the Due Process Clause of the Fifth Amendment.⁽²⁾ Does it mean the statute applies only to the injury or death of a "child," that is one who is subsequently born, but who was injured in utero? Does it refer to a fetus past the point of viability? Does it refer to a single-cell fertilized ova that has not yet implanted in the uterine wall? The statute does not tell us.

Even if the law is not held inapplicable because of unconstitutional vagueness, the Supreme Court has articulated a doctrine known as the doctrine of "lenity."⁽³⁾ Rooted in part in separation of powers concerns, this doctrine means that an ambiguous federal criminal statute must be construed in the way most favorable to the defendant, lest an individual be criminally punished for conduct that Congress did not intend to criminalize.⁽⁴⁾ At best, the phrase "child, who is in utero" is ambiguous here, and a defendant is likely to be able to avoid prosecution for whatever conduct it is that the drafters of this law intend to criminalize.

In addition, this statute operates in a very unusual manner. It does not just increase the penalty for unlawful violence against a pregnant woman that results in the death of or injury to a fetus, nor does it criminalize injuring or killing a fetus if one has the requisite mental state and is aware of the woman's pregnancy. Rather it includes fetuses within the universe of persons who may be protected from injury or death resulting from violations of other federal criminal laws.

Many state laws address fetal injury and death only in certain circumstances, and, reflecting the unique nature of the developing fetus, many provide some penalty that is different from the penalty that would have applied had the defendant killed or injured a person who was already born. They tend also to take account of the fetus's stage of development. State feticide laws often do not treat even the intentional killing of a fetus through violence perpetrated upon the pregnant woman as murder equivalent to the murder of a person who has been born. Some, like North Carolina, enhance the penalty for the underlying criminal conduct. Others treat even intentional feticide only as manslaughter. Thus, in Mississippi, for example, the law provides that

The wilful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be manslaughter.

Miss. Code. Ann. §97-3-37.

The proposed law by contrast says that whenever causing death or injury to a person in violation of a listed law would subject an individual to a particular punishment, he shall be subject to the same punishment if he causes death or injury to a fetus. This is true regardless of the stage of fetal development. Whatever its rhetorical force, the proposed law would lead to some unusual, and probably unintended, results. To give just one example, under the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. §248, one of the statutes listed in H.R. 2436, if an individual who is engaged in obstructing access to an abortion clinic knocks a pregnant woman to the ground during a demonstration, he is liable to imprisonment for up to one year. If he causes her "bodily injury" when he knocks her down, he would be subject under FACE to a ten-year term of imprisonment. Under the proposed law, however, if she miscarried as a result of being knocked down, he would be subject to life imprisonment, the same as if his action had caused the death of the woman herself.

In addition to being far more practical, it would be far easier to reach common ground on this issue with adoption of a statute similar to those state statutes providing for enhanced punishments that I have described. For in addition to the practical consequences, the use of a statutory framework that seeks to achieve its result through treating all fetuses at all stages of development as persons distinct from the women who carry them unnecessarily places federal statutory law on the path toward turning the pregnant woman into the adversary rather than the protector of the fetus she carries. For although this law contains exceptions for abortion, for medical treatment of the woman or the fetus, and for the woman's own conduct - exceptions that are both wise and constitutionally required - if the fetus were truly a "person," there would be no principled reason to include such exceptions. Yet of course a law that did not contain them would be shocking to most Americans and both obviously and facially unconstitutional.

Finally, then, in failing to take account of the woman, the proposed statute also sets federal law apart from the American legal and constitutional tradition with respect to the treatment of the fetus. As the Supreme Court has described, "the unborn have never been recognized in the law as persons in the whole sense."⁽⁵⁾ At common law, the destruction of a fetus in utero was not recognized as homicide unless the victim was born alive.⁽⁶⁾ And, of course, the Supreme Court has held that fetuses are not persons within the meaning of the Fourteenth Amendment.⁽⁷⁾ This is a position with which even as staunch an opponent of Roe v. Wade as Justice Antonin Scalia agrees.⁽⁸⁾

In addition, therefore, to the practical and political considerations that counsel in favor of an alternative approach, the proposed law would also unnecessarily set federal statutory law on a conceptual collision course with the Supreme Court's abortion decisions. Whatever one may think of those decisions, an unnecessary conflict about them would not contribute to the important work of healing where possible the country's division over abortion.

1. My testimony is provided in the public interest; I do not speak on behalf of any client or organization.

2. See, e.g.,Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).

3. See, e.g., United States v. Bass, 404 U.S. 336, 347 (1971).

4. See id. at 347-349.

5. Roe v. Wade, 410 U.S. 113, 162 (1973).

6. See Commonwealth v. Cass, 467 N.E. 2d 1324, 1328 (Mass. 1984) (describing the common law).

7. Roe, 410 U.S. at 157.

8. See Webster v. Reproductive Health Services, 492 U.S. 490, 535 (Scalia, J., concurring in part and concurring in judgment) (stating that the legality of abortion is "a political issue" that should be decided by the states, a position dependent upon an implicit conclusion that fetuses are not "persons" within the meaning of the Fourteenth Amendment).