Communications Department

NRLC Factsheet on the Innocent Child Protection Act:

Jul 20, 2000 | ICPA

Should An Innocent Unborn Child Be Executed?
Key Points on the Innocent Child Protection Act (H.R. 4888)

July 20, 2000

For further information, contact:
National Right to Life Committee (Federal Legislative Office)
(202) 626-8820,,

 The Innocent Child Protection Act (H.R. 4888), introduced by Congresswoman Ileana Ros-Lehtinen (R-Fl.) on July 19, 2000, prohibits state governments from carrying out a sentence of death on a woman who carries a child in utero.

 This bill does not reflect any point of view on the desirability or appropriateness of imposing capital punishment on persons convicted of premeditated murder or other grave crimes. Nor does this bill have anything to do with other bills that deal with DNA evidence or other issues pertaining to the actual guilt of a person who has been convicted of a capital crime. This bill simply recognizes (1) most states and the federal government do currently impose capital punishment for certain crimes, but (2) no child in utero can possibly be guilty of a crime, therefore (3) Congress should prevent the government from taking the life of an innocent child in utero by prohibiting, within all U.S. jurisdictions, any death sentence from being carried out while a woman convicted of a capital crime carries a child in utero.

 Title 18 U.S.C.A. Sect. 3596, enacted in 1994, already prohibits federal executions of pregnant women, but most executions are carried out by states, and in any event it is just and appropriate to have a uniform law for all jurisdictions on this question.

*  Under traditional common law (non-statutory, judge-made law), a death sentence should not be carried out on a woman who carries a child in utero. The purpose of this common law doctrine, as the Supreme Court noted in the 1891 case of Union Pacific Railway v. Botsford, was “to guard against the taking of the life of an unborn child for the crime of the mother.” [11 Sup. Ct. Rep. 1000, 1002] However, common law offers weak and uncertain protection against the execution of an innocent child in utero.

 While the situation under discussion here may seldom arise in the U.S. in modern times, maintaining and reinforcing the innocent child principle is worthwhile even if it saves only one innocent life in a century. Currently, 38 states (and the federal government) employ the death penalty for certain offenses. As of January 1, 1999, 51 women were on state death rows, of whom 82% were age 45 or younger.

*  Women do become pregnant in prison — even in maximum-security facilities. As Congresswoman Lynn Woolsey (D-Ca.) said on the floor of the House of Representatives on June 22, 2000, in a speech in favor of an unsuccessful amendment to require the federal Bureau of Prisons to fund abortions, “We know that women become pregnant in prison, from rape or from having a relationship with one of the guards.”

*  In his 1937 book Into This Universe: The Story of Human Birth, Dr. Alan Guttmacher — the “father of Planned Parenthood” — wrote:

A judge has told me that in one of the States a pregnant woman received the ordinary stay of execution on account of pregnancy, and through the willing cooperation of a jailer became pregnant again shortly after her delivery, before the original execution order could be carried out. She was granted a second stay to allow her to give birth to the jailer’s child.” (page 46)

*  In 1976, the U.S. became a signatory to the International Covenant on Civil and Political Rights (CCPR), which 143 other nations have also joined. Article 6(5) states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” The U.S. entered a partial reservation to Article 6(5), which reads, “The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” [italics added for emphasis] Thus, within the reservation itself, the U.S. bound itself not to permit the execution of any woman who carries an unborn child. Congress has constitutional authority to explicitly apply this treaty obligation to the states.

*  H.R. 4888’s definition of “child in utero” (“a member of the species homo sapiens, at any stage of development, who is carried in the womb”) is taken verbatim from the Unborn Victims of Violence Act (H.R. 2436), passed by the House on September 30, 1999, by a vote of 254-172. (1999 House roll call no. 465) Similar definitions and terminology are found in numerous state laws. Like those state laws, this bill has no effect on access to legal abortion, either for women on death row or anybody else.

 Vice President Gore, asked by NBC’s Tim Russert whether he agreed with the current prohibition on federal executions of pregnant women, laughed and said, “I’d want to think about it.” (Meet the Press, July 16, 2000) On July 17, “Mr. Gore said he favored allowing a pregnant woman to choose whether to delay her execution until she gave birth. The principle of a woman’s right to choose governs in that case,‘ he said.” (The New York Times, July 18) Gore’s position implicitly repudiates the innocent child principle embodied in the International Covenant on Civil and Political Rights and in Title 18 U.S.C.A. Sect. 3596, both of which flatly prohibit the government from taking the child’s life.

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