Unborn Victims of Violence Act

Unborn Victims of Violence Act of 2004
Great Seal of the United States
Long title An Act To amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes.
Nicknames Laci and Conner's Law
Enacted by the 108th United States Congress
Citations
Public law Pub.L. 108–212
Statutes at Large 118 Stat. 568–570
Codification
Titles amended 18, 10
U.S.C. sections created 18 U.S.C. § 1841, 10 U.S.C. § 919a
Legislative history

The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes a child in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb".[1]

The law is codified in two sections of the United States Code: Title 18, Chapter 1 (Crimes), §1841 (18 USC 1841) and Title 10, Chapter 22 (Uniform Code of Military Justice) §919a (Article 119a).

The law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on federal properties, against certain federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, no matter who commits them, such as certain crimes of terrorism.

Because of principles of federalism embodied in the United States Constitution, federal criminal law does not apply to crimes prosecuted by the individual states. However, 38 states also recognize the fetus or "unborn child" as a crime victim, at least for purposes of homicide or feticide.[2]

The legislation was both hailed and vilified by various legal observers who interpreted the measure as a step toward granting legal personhood to human fetuses, even though the bill explicitly contained a provision excepting abortion, stating that the bill would not "be construed to permit the prosecution" "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", "of any person for any medical treatment of the pregnant woman or her unborn child" or "of any woman with respect to her unborn child."

However, the reticence of a federal law to authorize federal prosecution of a particular act committed under federal jurisdiction does not prevent states from passing their own laws against the act committed under their jurisdiction. Meanwhile, the definition of all unborn babies as “members of the species homo sapiens” in section (d) says essentially what proposed “personhood” laws say.[3] Sponsors of such proposals say such legal language will trigger the “collapse” clause in Roe v. Wade, by establishing what Roe said must be established for legal abortion to end.[4] Several state supreme courts have ruled that sections (a) through (c) are not threatened by Roe,[5] but no court has addressed whether Roe can survive the triggering of its “collapse” clause by section (d).

The bill contained the alternate title of Laci and Conner's Law after the California mother (Laci Peterson) and fetus (Conner Peterson) whose deaths were widely publicized during the later stages of the congressional debate on the bill in 2003 and 2004 (see Scott Peterson and Laci Peterson). Scott Peterson was convicted of double homicide under California's fetal homicide law.

History

Prior to enactment of the federal law, the child in utero was, as a general rule, not recognized as a victim of federal crimes of violence. Thus, in a federal crime that injured a pregnant woman and killed the child in utero," no homicide was recognized, in most cases.[6]

One exception was the "born-alive rule," applied in US v. Spencer, 839 F.2d 1341 (9th Cir. 1988), a case in which the child was born alive and died shortly afterwards; therefore there was no doubt that the decedent was once a living person under the law.

The Unborn Victims of Violence Act was first introduced in Congress in 1999 by then-Congressman (later Senator) Lindsey Graham (R-SC). It passed the House of Representatives in 1999 and 2001, but not the Senate. In 2003, the bill was reintroduced in the House as H.R. 1997 by Rep. Melissa Hart of Pennsylvania. It was ultimately co-sponsored by 136 other members of the House before it passed by a vote of 254 in favor to 163 against on February 26, 2004. After several amendments were rejected, it was passed in the Senate by a vote of 61-38 on March 25, 2004. It was signed into law by President Bush on April 1, 2004.

A photo of Tracy Marciniak, holding the body of her son Zachariah. Ms. Marciniak was seriously injured, and Zachariah was killed, by an assault during the ninth month of the pregnancy. This photo was on display as Ms. Marciniak testified at a televised hearing in favor of the Unborn Victims of Violence Act before a subcommittee of the Committee on the Judiciary, U.S. House of Representatives, on July 8, 2003. It was also displayed, in poster size, on the floors of the U.S. House and U.S. Senate during the subsequent debates on the legislation.[7]

Signing

Signing ceremony at the White House, April 1, 2004.

At the signing ceremony, the President was joined on stage by men and women who had lost family members in two-victim crimes, including Laci Peterson's mother, Sharon Rocha. During his remarks at the ceremony, Bush said, "Any time an expectant mother is a victim of violence, two lives are in the balance, each deserving protection, and each deserving justice. If the crime is murder and the unborn child's life ends, justice demands a full accounting under the law." Senator John Kerry, his main opponent in the 2004 Presidential election, voted against the bill, saying, "I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy."

Opposition

The Unborn Victims of Violence Act was strongly opposed by most pro-choice organizations, on grounds that the U.S. Supreme Court's Roe v. Wade decision said that the human fetus is not a "person" under the Fourteenth Amendment to the Constitution, and that if the fetus were a Fourteenth Amendment "person," then they would have a constitutional right to life. However, the laws of 38 states also recognize the human fetus as the legal victim of homicide (and often, other violent crimes) during the entire period of pre-natal development (27 states) or during part of the pre-natal period (nine states).[8] Legal challenges to these laws, arguing that they violate Roe v. Wade or other U.S. Supreme Court precedents, have been uniformly rejected by both the federal and the state courts, including the supreme courts of California, Pennsylvania, and Minnesota.[9]

Some prominent legal scholars who strongly support Roe v. Wade, such as Prof. Walter Dellinger of Duke University Law School, Richard Parker of Harvard, and Sherry F. Colb of Rutgers Law School, have written that fetal homicide laws do not conflict with Roe v. Wade.[10]

A principle that allows language in a law to not conflict with Roe, which logically should trigger Roe’s “collapse” clause, was explained in Webster v. Reproductive Health Services, 492 US 490 (1989). Until such language becomes the basis for laws that specify penalties for abortion, the issue is not even before the court, of whether or not such language conflicts with Roe, and if so, which should be struck down.[11]

Text of the law

The operative portion of the law, now codified as Title 18, Section 1841 of the United States Code, reads as follows:

Sec. 1841. Protection of unborn children

(a) (1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.
(2) (A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother.
(B) An offense under this section does not require proof that—
(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.
(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being.
(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a) are the following:
(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229, 242, 245, 247, 248, 351, 831, 844 (d), (f), (h)(1), and (i), 924 (j), 930, 1111, 1112, 1113, 1114, 1116, 1118, 1119, 1120, 1121, 1153 (a), 1201 (a), 1203, 1365 (a), 1501, 1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952 (a)(1)(B), (a)(2)(B), and (a)(3)(B), 1958, 1959, 1992, 2113, 2114, 2116, 2118, 2119, 2191, 2231, 2241 (a), 2245, 2261, 2261A, 2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of this title.
(2) Section 408(e) of the Controlled Substances Act of 1970 (21 U.S.C. 848 (e)). (3) Section 202 of the Atomic Energy Act of 1954 (42 U.S.C. 2283).
(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.
(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.

The provision amending the Uniform Code of Military Justice is functionally the same, except for minor technical points.

See also

References

  1. ↑ Text of Unborn Victims of Violence Act.
  2. ↑ "State Homicide Laws That Recognize Unborn Victims."
  3. ↑ "Life at Conception Act". National Pro-life Alliance. Retrieved 26 April 2012.
  4. ↑ Roe v. Wade's "collapse" clause says: "The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."
  5. ↑ Constitutional Challenges to State Unborn Victims (Fetal Homicide) Laws."
  6. ↑ "Some Cases of Homicides of Unborn Children under Federal or Military Jurisdiction," May 8, 2003. (Examples of fetal-death cases that could not be prosecuted prior to enactment of the Unborn Victims of Violence Act.)
  7. ↑ Testimony of Tracy Marciniak on the Unborn Victims of Violence Act (H.R. 1997), Subcommittee on the Constitution, Committee on the Judiciary, U.S. House of Representatives, July 8, 2003
  8. ↑ "State Homicide Laws That Recognize Unborn Victims."
  9. ↑ Constitutional Challenges to State Unborn Victims (Fetal Homicide) Laws."
  10. ↑ "The Unborn Victims of Violence Act and Roe v. Wade," February 2, 2004.
  11. ↑ “...until those courts have applied the...state’s view of when life begins...to restrict appellees' [abortionists’] activities in some concrete way, it is inappropriate for federal courts to address its meaning.” Webster v. Reproductive Health Services, 492 US 490 (1989). Sandra Day O’Conner added in a concurrence, “When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully.”
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