Contentious debate surrounded a March 15 House Judiciary Subcommittee on the Constitution hearing. The hearing focused on a bill (H.R. 503), sponsored by Rep. Lindsey Graham (R-SC), that would create a separate offense if an individual kills or injures an “unborn child” while committing a federal crime against a pregnant woman.
An identical bill was passed by the House in September 1999, but the Senate never considered the measure.
Ranking Democrat Jerrold Nadler (D-NY) called the bill “disingenuously extreme,” adding, “Its real intent is not the stated purpose but rather to sabotage the Roe v. Wade doctrine.”
Bill sponsor Lindsey Graham (R-SC) disagreed with Rep. Nadler’s characterization of the bill, saying that 11 states have enacted bills identical to H.R. 503, and an additional 12 states have enacted similar legislation. He added, “As to this bill and abortion, pregnant women can never be prosecuted under this bill. The only person who can be prosecuted is a third party criminal.”
Rep. Melissa Hart (R-PA) agreed, saying, “This is not an issue and should not be made into an issue of whether you are for or against abortion….I see this bill as the ultimate protection of women against violence. I see this bill as ultimately anti-crime and pro-woman.”
Rep. John Conyers (D-MI) also questioned the intent of the bill: “Is this a transparent attempt to legally recognize a fetus as having rights separate from women?”
The subcommittee heard testimony from William Croston whose sister was killed by her estranged husband when she was five months pregnant. “Unfortunately, the thoughts in the mind of some persons in today’s society have reached a point of no respect for the life and rights of others,” stated Mr. Croston, adding: “We need to update today’s out-of-date laws to include consequences for criminals who cause harm to unborn children through an act of violence against the mother.”
Professor Richard S. Myers of Ave Maria School of Law testified as to the constitutionality of the bill. “Closer scrutiny revealed that the proposed legislation does not raise any serious constitutional issues,” he stated, adding: “State court decisions addressing the constitutionality of state unborn child homicide statutes confirm this view. For example, in State v. Merrill the Minnesota Supreme Court upheld the constitutionality of Minnesota’s unborn child homicide statutes….The Court concluded that ‘the fetal homicide statutes seek to protect the potentiality of human life, and they do so without impinging directly or indirectly on a pregnant woman’s privacy rights.”
Juley Fulcher of the National Coalition Against Domestic Violence testified in opposition to the bill, saying that H.R. 503 does not provide protection for battered women: “Our response to the problem [domestic violence] should be one that truly protects the pregnant woman by early intervention before such a tragedy occurs.”
“The goal of the bill is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence. Instead the focus often will be shifted to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other violence against women,” stated Ms. Fulcher.
She also added that the bill may have the unintended consequence of discouraging battered women from seeking help. “A battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage and, if she is financially or emotionally reliant on her batterer, may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for an offense as serious as murder,” she stated.
Robert J. Cynkar, Esq., testified in support of the bill, saying, “This legislation, the Unborn Victims of Violence Act, is not only as a technical matter squarely within the mainstream of well-established principles of criminal law, but it is law-making in furtherance of the most fundamental, most noble ideals of all law….The bill recognizes that a violent act against a pregnant woman has two victims, the mother and her unborn child, and so should constitute two distinct offenses in federal law.”
