In its 1973 decision in Roe v. Wade, striking down a Texas law criminalizing abortion, the United States Supreme Court ruled that a fetus is not a "person" entitled to protection under the Fourteenth Amendment of the Federal Constitution. Despite the Court’s ruling, anti-choice lawmakers have continuously attempted to elevate the status of the fetus and undermine Roe. Recognition of the fetus as a "person" under the law could create conflicts with the rights of pregnant women and undermine those rights. President Bush signed the "Unborn Victims of Violence Act of 2004" into law on April 1, 2004. It passed the House 254-163, and the Senate 61-38. UVVA is the first federal law to recognize a fertilized egg as a crime "victim," independent of the pregnant woman who suffers the physical injury. Efforts to elevate fetuses' status have also occurred at the administrative level. For example, the Bush Administration recently adopted regulations that allow states to classify a fertilized egg as an "unborn child," eligible for coverage under the State Children's Health Insurance Program, rather than allowing coverage of pregnant women under the program. For more information:
The Center for Reproductive Rights (Center) opposes the "Unborn Victims of Violence Act" (UVVA). Rather than addressing the tragic consequences of violence against women during pregnancy, the bill is another attempt by anti-choice legislators to advance their theory of "fetal personhood" in a campaign to undermine the right to choose abortion.
- The Bill Recognizes a Fertilized Egg, Embryo and Fetus as Crime "Victims" Independent of the Pregnant Woman
UVVA would amend the federal criminal code and Uniform Code of Military Justice to create a separate offense if, during the commission of certain federal crimes, an individual causes the death of, or bodily injury to, what sponsors of the bill call a "child in utero" or "unborn child." Because the bill defines "unborn child" and "child in utero" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb," UVVA would be the first federal law to recognize a fertilized egg as a crime "victim," independent of the pregnant woman who suffers the physical injury.
- The Bill is Part of a Concerted Campaign to Redefine Personhood and Undermine Roe v. Wade
In establishing an independent crime based on harm to a fertilized egg, embryo and fetus, as opposed to harm to the woman, the sponsors of UVVA endeavor to undermine constitutional protections of a woman's right to abortion. The unmistakable premise of the bill is that the fetus is an entity separate from the pregnant woman; the use of the terms "unborn child"1 and "child in utero," are not calculated to protect pregnant women from violence, but rather to influence the abortion debate, and to undermine the United States Supreme Court's holding in Roe v. Wade, that the word "person" as used in the Fourteenth Amendment does not include fetuses prior to birth.2 Indeed, this anti-abortion goal was made explicit when Senator Orrin Hatch (R-UT) admitted that "they say it undermines abortion rights. It does."3
Attempts to grant greater legal status to the fetus threaten pregnant women's fundamental rights and, in particular, women's right of reproductive choice. Treating the fetus as a legal entity separate from the pregnant woman creates the potential for an adversarial relationship between the woman's health needs and those of her developing fetus. In fact, anti-choice prosecutors have relied on state laws similar to UVVA to attempt to prosecute pregnant women for behavior -- such as alcohol use, suicide attempts or drug use -- that is potentially harmful to a fetus. One woman was even prosecuted for failure to follow her doctor's orders to remain on bed-rest.4
- The Bill Does Not Protect Pregnant Women From Violence, or Recognize the Harm to the Pregnant Woman Herself
The Center supports measures intended to reduce or punish violence against women and that recognize the significant additional injury to a pregnant woman who suffers the loss of -- or harm to -- her pregnancy. In fact, studies establish that batterers often escalate their violence when their partners become pregnant, and battering becomes more violent and more frequent.5 A 1994 study by the Centers for Disease Control and Prevention reported that at least six percent (6%) of all pregnant women, at least 240,000 pregnant women each year, are battered by their spouses or partners.6 However, this bill would do nothing to stem violence against women. If the sponsors of UVVA were truly concerned with this problem, they would take a lead in supporting increased funding levels for the Violence Against Women Act7 as well as other legislation designed to effectively punish those who injure pregnant women.
Moreover, in seeking to create a separate offense based on harm to a fetus, UVVA disregards that the real offense is the assault perpetrated on the pregnant woman, and ignores the injury to her due to harm to her wanted pregnancy. Crimes of this nature are more appropriately addressed by enhancing penalties for termination of or injury to a pregnancy – a measure that the sponsors of UVVA have expressly rejected. By treating the "unborn child" – rather than the woman – as the crime victim, the bill devalues and politicizes the woman's loss.
In fact, carefully crafted laws that appropriately punish conduct causing loss of a pregnancy have been passed in some states without employing inappropriate and inflammatory language or attempting to elevate the legal status of the fetus. For example, a law in North Carolina8 created an enhanced penalty for battery to a woman that resulted in loss of a pregnancy. By contrast, statutes that attempt to recognize the fetus as a separate entity have resulted in legal and legislative efforts to undermine women's autonomy, such as the prosecutions of pregnant women described above.9
In sum, UVVA fails to recognize that injury to a pregnancy is first and foremost an injury to a woman. By drafting a bill that is concerned solely with creating a separate crime perpetrated against the "unborn child," the sponsors make clear that the real intent of this bill is to advance a political agenda that ignores the rights of women. Therefore, the Center for Reproductive Rights urges opposition to the Unborn Victims of Violence Act.
Endnotes
1. This is not the first time this Administration has supported efforts to redefine personhood. For example, in regulations effective on November 1, 2002, the Department of Health and Human Services amended regulations governing the State Children's Health Insurance program (SCHIP) to classify the fetus as an "unborn child" and expand coverage to "an individual in the period between conception and birth up to age 19."
2. Roe v.Wade, 410 U.S. 113, 158 (1973). That UVVA is designed to elevate the status of the fetus is further demonstrated by the fact that the bill establishes identical penalties for the death of the woman and the fetus.
3. Kate Snow, "Laci Peterson family endorses ‘unborn victims' bill," CNN Washington Bureau (May 7, 2003). Similarly, Congressman Henry Hyde, Chair of the House Judiciary Committee, has stated that this bill would finally recognize that "the fetus. is not a ‘nothing.'" Judiciary Committee markup held on September 14, 1999, as recorded in House Report 106-332. See http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr332p1&dbname=cp106&.
4. In all but one state, these prosecutions have failed. See, e.g., State v. Ashley, 701 So. 2d 338 (Fla. 1997), (discussing other cases); but see Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997). See generally Punishing Women for their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests, Center for Reproductive Rights, September, 2000.
5. Gelles, R., "Violence and Pregnancy: Are Pregnant Women At Greater Risk For Abuse?," Vol.50 Journal of Marriage and the Family 841 (1988).
6. New York Times, A23 (March 4, 1994).
7. Of the 148 members of Congress who are co-sponsoring the Unborn Victims of Violence Act, 92 of those members failed to co-sponsor the Violence Against Women Act when it was reauthorized in 2000 (taking into account only those who were in office in 2000).
8. NC Rev. Stat. Ann. § 14-18.2
9. See Associated Press, "Three people face charges in stillbirth," The Post and Courier at 6-B, (Charleston, S.C.) July 22, 1999.
Recent change to State Children's Health Insurance Program (SCHIP) expands rights to the fetus
Recently released regulations by the Department of Health and Human Services will classify the fetus as an "unborn child" and expand
coverage to "an individual in the period between conception and birth up
to age 19." This new regulation was published by DHHS on October 2, 2002 and will go into effect on November 1, 2002.
Summary of The Center for Reproductive Rights' Position in Response to Proposed Regulation (May 2002):
The Center for Reproductive Rights wholeheartedly supports efforts to expand access to pregnancy-related care. However, the proposed amendment to the State Children’s Health Insurance Program (SCHIP) to extend the plan to cover fetuses while ignoring the health needs of pregnant women is fraught with legal and practical problems:
- The secretary does not have the legal authority to promulgate the proposed regulation.
- The Proposed Regulation could place the health of pregnant women at risk and threatens a woman’s integral right to control her own healthcare.
- Low-income pregnant women deserve actual, not merely incidental, health insurance coverage that covers all of their pregnancy-related needs.
- There are superior means of ensuring prenatal care for women whose incomes fall within the SCHIP-eligibility criteria in their state.
- By defining a fetus as a "child" from the moment of conception for purposes of SCHIP, the Proposed Regulation is in clear tension with fundamental principles of constitutional law.
Full Text of Comments Submitted to U.S. Department of Health and Human Services
Members of Congress Propose an Alternative Which Addresses Safe Pregnancy and the Right to Care
On October 24, 2002 the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the "Mothers and Newborns Health Insurance Act" (S.724). The hearing was intended to demonstrate the need for a policy which addresses both the mother's health and her newborn. The Center submitted official testimony at the hearing to support efforts to expand access to pregnancy-related care through legislation such as the "Mothers and Newborns Health Insurance Act." This bill not only addresses a significant gap in our nation’s healthcare system, but also mitigates the negative effects of misguided amendments to the State Children’s Health Insurance Program (SCHIP) recently adopted by the Department of Health and Human Services.
Full Text of Testimony Submitted to the Senate Committee on Health, Education, Labor and Pensions
Related press release: 5/6/02 - Bush Administration to Extend Health Coverage to Fetuses but Not to Pregnant Women
Fetal Personhood/Unborn Victims Legislation
