A Cautious Man
March 30, 2004
Is it as Simple as it Seems
Mr. Balkin at Balkinization has a good post concerning the "unintended consequences" of the "Unborn Victims of Violence Act". I had similar thoughts about the Act when I first heard of it, and after summarizing Mr. Balkin's thoughts, I'll add a few of my own (including about why a pregnancy test should now be a standard part of a Federal criminal investigation).

The dust-up about the Act comes not from the fact that harm to a fetus is now a separate crime under Federal law (something which was never really opposed, as further discussed below), but over how that's accomplished. The approach which prevailed, and which will be signed by the President, is to define "unborn child" as follows:
(d) As used in this section, the term 'unborn child' means a child in utero, and the term 'child in utero' or 'child, who is in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.
As Mr. Balkin points out, "the statute by its own terms does not reach abortions":
(c) Nothing in this section shall be construed to permit the prosecution--
(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
(2) of any person for any medical treatment of the pregnant woman or her unborn child; or
(3) of any woman with respect to her unborn child.
He concludes:"This produces a perverse result for pro-life forces: Congress officially says that a fetus is a child, but also officially says that ending the life of this child through abortion is legal. Should a pro-life Senator vote for such a bill?" As he also points out, by the terms of the new law, the death of the unborn child is specifically not a crime for which the federal death penalty may be imposed.

Personally, I think it's obvious that getting the "child in utero" language into the bill was so important that its proponents were willing to overlook the fact that the law also affirms a woman's right to choose (indeed, it states an affirmative right for someone else to choose abortion for a woman, if that someone is "a person authorized by law to act on her behalf"). It did not have to be that way. Prior to final passage, the Senate rejected a compromise by a vote of 50-49, under which causing or attempting to cause the termination of a pregnancy, while committing a crime against a pregnant woman, would be a separate offense. That potential compromise still would have made termination of a pregnancy a separate, prosecutable crime; however, it did not require any language which could be used as part of the pro-life vs. pro-choice debate. Instead, proponents of the Act were motivated, not simply by the desire to enact a law to protect pregnant women, but by a need to do so in a manner that would be a political football in the abortion debate.

By the way, I think there's another unintended consequence of the Act. Once the Act is signed into law by President Bush, then presumably every Federal prosecutor will be required to investigate whether a crime has been committed under the Act, if circumstances warrant. And which circumstances will those be? Well, where the commission of a crime against a woman causes the death or injury of her child "in utero", "at any stage of development, who is carried in the womb". If that is the law of the land, then the only responsible conduct for a prosecutor would be for any female crime victim of child-bearing age to undergo a pregnancy test, to see if she is (or had been) carrying a child in utero at the time of the commission of the offense.

You're free to tell me that such a thought is absurd. But if it's absurd, then tell me where a prosecutor is to draw the line at investigating and prosecuting a crime under the Act. Would you only apply the law to situations where the woman already knew she was pregnant? Why would that be, especially since the Act does not require that the criminal know that his victim is pregnant? And if the crime only exists if the mother knows that she is pregnant, how again does that make this a "pro-life" enactment?



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