By Douglas Johnson
Tuesday, March 30, 2004

According to a Gallup poll released early in February, 57 percent of Americans are paying attention to the Laci Peterson case, significantly more than many other judicial proceedings. Scott Peterson is charged with two murders — those of his wife and unborn son. That’s because the crimes occurred in California, where, since 1970, the law has applied to the murder of a “fetus” as well as a born human being. Indeed, the California Supreme Court specifically held that the simultaneous murder of a pregnant woman and her fetus also falls within a second law that makes a defendant eligible for capital punishment if he kills more than one victim in the same crime.

Twenty-nine states recognize the unborn child as a homicide victim — 16 throughout pre-natal development, and 13 from some particular point in pregnancy defined in law. But what about federal law? Pregnant women are often among the victims of crimes that are covered by federal law — terrorist bombings, killings performed by persons engaged in major drug enterprises, domestic violence on military bases, attacks that follow interstate stalkings and many others. Now, with the passage of the Unborn Victims of Violence Act, if a pregnant woman is a victim of any of 68 federal crimes and her unborn child is injured or killed, prosecutors can bring a second charge on behalf of the second victim. President Bush says that he thinks such crimes have two victims, and he has said that he will sign the bill.

A Newsweek poll from May 2003 found that 84 percent of Americans believe that when both mother and fetus die, the attacker should be charged “for two murders instead of one,” including 56 percent who believe this should apply “in all cases where a pregnant woman is murdered” and another 28 percent “where the fetus is viable — that is, is able to survive outside the womb.”

The National Right to Life Committee and other groups support fetal- homicide bills because we recognize that abortion, while critical, is not the only issue. Peterson’s unborn son, and many others like him, were absolutely deprived of their right to life through acts that were not abortions and that are in no way shielded by Roe vs. Wade.

Sure, opponents insist that the Unborn Victims of Violence Act “directly contradicts the basic tenet of Roe vs. Wade,” as the National Abortion Federation put it. Yet the more thoughtful observer might consider not only the public opinion polls cited above, but also that:

— The Unborn Victims of Violence Act explicitly excludes abortion, and excludes any act committed by the mother herself, legal or illegal.

— Twenty-eight states besides California have fetal-homicide laws, some of which have been enforced for decades and have had no effect on abortion.

— Criminal defendants and advocacy groups have mounted more than a dozen legal challenges to state unborn-victims laws — and every one has failed in the federal and state courts. The 1994 ruling by the California Supreme Court is typical: “[W]hen the mother’s privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother’s womb from homicide.”

— In its 1989 Webster ruling, the U.S. Supreme Court lifted a lower- court order against the most comprehensive of the state laws, a Missouri statute stipulating that “the life of each human being begins at conception,” and that the “unborn child” has the rights of others under all state laws (including criminal laws), with the Supreme Court observing that this law could be constitutionally applied outside the realm of abortion.

— Former acting Solicitor General Walter Dellinger of Duke University School of Law, who advised President Clinton on constitutional issues and authored his 1993 abortion-related executive orders, said, “I don’t think [fetal-homicide laws] undermine Roe vs. Wade. The legislatures can decide that fetuses are deserving of protection without having to make any judgment that the entity being protected has freestanding constitutional rights.”

Perhaps the most compelling argument for the law comes from a figure now recognized by many millions of Americans — Sharon Rocha, Laci’s mother, who has emerged as an articulate advocate for the Unborn Victims of Violence Act and comparable state laws.

In a letter to presumptive Democratic presidential nominee Sen. John Kerry (who opposes the act), Rocha noted that Kerry’s state of Massachusetts is among the 29 states that recognize fetal homicide in some circumstances, and argued that “California’s unborn victim law has been [on] the books since 1970 and it does not affect the availability of legal abortion. … What I find difficult to understand is why groups and senators who champion the pro- choice cause are blind to the fact that these two-victim crimes are the ultimate violation of choice. … What about mothers who survive criminal attacks but lose their babies? I don’t understand how any senator can vote to force prosecutors to tell such a grieving mother that she didn’t really lose a baby — when she knows to the depths of her soul that she did,” she said. “This is a question not only of severity, but of justice. … There were two bodies that washed up in San Francisco Bay, and the law should recognize that reality.”

Federal law now does, recognizing the pain of Sharon Rocha, her murdered grandson and all the other unborn victims of violence.

Douglas Johnson is the legislative director for the National Right to Life Committee. An earlier version of this article appeared in National Review Online.

©2004 San Francisco Chronicle