Communications Department

Rebuttal to misrepresentations of Unborn Victims of Violence Act (H.R. 2436)

Sep 28, 1999 | Unborn Victims of Violence

To: Members of the House of Representatives

From: Douglas Johnson, NRLC Legislative Director

Susan Muskett, J.D., NRLC Policy Analyst
(202) 626-8820, e-mail:

Re: Misrepresentations of Unborn Victims of Violence Act (HR 2436)
Date: Tuesday, September 28, 1999

As the House prepares to vote on the Unborn Victims of Violence Act (HR 2436) on Thursday, Sept. 30, some materials are being circulated that blatantly misrepresent the content and effect of the bill. We address some of these misrepresentations below.

* On September 27, the National Organization for Women (NOW) disseminated an alert against the bill that made the following claim: “The findings specified in H.R. 2436 state that a right to abortion is not secured by the Constitution. . . [in Roe] the Supreme Court erred in not recognizing the humanity of the unborn child and the compelling interest of the States in protecting the life [of] each person before birth.’ Findings in legislation are often considered by judges in deciding cases.” NOW’s “quotations” from the bill are bogus. At no stage in the legislative process has the Unborn Victims of Violence Act contained the “quoted” language, nor has such language ever been proposed for addition to the bill by amendment or otherwise. The real HR 2436 states that nothing in the bill “shall be construed to permit the prosecution of any person for conduct relating to an abortion for which the consent of the pregnant woman has been obtained.”

* In a September 28 memo, Congressman Jim Greenwood claims, “H.R. 2436 is explicit that no . . . intent to cause harm is necessary.” This is false. Under the bill, it is necessary to prove beyond a reasonable doubt that a defendant had intent to do criminal harm, at least towards the mother. If such criminal intent towards the mother is proved, then the defendant also will be held responsible for the harm done to the unborn baby, under the doctrine of “transferred intent.” As the Judiciary Committee report explains, transferred intent is a well-established principle in the law. (If a man shoots at a woman with intent to kill, and the bullet misses her, passes through a wall, and kills a child who the shooter did not know was there, he can be convicted of the murder of the child.) As the Minnesota Supreme Court ruled in upholding the Minnesota unborn victims law, “The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude.” [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].

* In his memo, Mr. Greenwood misquotes the bill as applying to “a member of the species homo sapiens at all stages of development.” In reality, the bill applies to “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” The “zygote (fertilized egg)” and “blastocyst (preimplantation embryo)” referred to by Mr. Greenwood could not possibly provide the basis for a prosecution under H.R. 2436. Under the bill, it would be necessary for the prosecution to prove beyond a reasonable doubt that a human being (1) already existed, and (2) was “carried in the womb,” which would be utterly impossible until after the embryo had implanted in the womb and sent out the chemical signals that announce his or her presence (i.e., after implantation). Moreover, even after the prosecution has met that burden, it must also prove beyond a reasonable doubt that a defendant’s criminal conduct caused the death of the child in utero. Thus, the mere possibility or even the strong likelihood that a defendant’s criminal conduct caused the baby’s death would not suffice — the bill requires proof beyond a reasonable doubt.

* Mr. Greenwood says, “The Supreme Court has held that fetuses are not persons within the meaning of the Fourteenth Amendment.” That is an accurate statement of the current doctrine of the Supreme Court — and it is entirely irrelevant to H.R. 2436. In the 1989 case of Webster v. Reproductive Health Services, the U.S. Supreme Court refused to invalidate a Missouri statute that declares that “the life of each human being begins at conception,” that “unborn children have protectable interests in life, health, and well-being,” and that all state laws “shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state,” to the extent permitted by the Constitution and U.S. Supreme Court rulings. A lower court had held that Missouri’s law “impermissibl[y]” adopted “a theory of when life begins,” but the Supreme Court nullified this ruling, holding that a state is free to enact laws that recognize unborn children, so long as the state does not include restrictions on abortion that Roe forbids. The Minnesota Supreme Court agreed in its ruling upholding the Minnesota law: “Roe v. Wade . . . does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.” [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].

* Moreover, twenty-four (24) states already have laws that explicitly recognize unborn children as victims of criminal acts — 11 of these throughout the period of their in utero development. Criminal defendants have attacked these laws with every conceivable constitutional argument, but all such legal challenges have failed. A listing of some pertinent cases is attached. A summary of state unborn victim laws is also attached.

* Mr. Greenwood charges that H.R. 2436 “punishes the harm to the zygote, embryo or fetus while utterly ignoring the harm to the pregnant woman.” This objection is simply nonsensical. In reality, the protections provided to the unborn child by H.R. 2436 apply only in cases in which a criminal has violated an existing federal law by an act of violence involving a pregnant woman. The bill lists more than 60 such federal statutes.

Constitutional Challenges to State Unborn Victims Laws

(All challenges were unsuccessful. All challenges were based on Roe v. Wade and/or denial of equal protection, unless otherwise noted.)

People v. Davis, 872 P.2d 591(Cal. 1994).

Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). Related state supreme court decision: Brinkley v. State, 322 S.E.2d 49 (Ga. 1984) (vagueness/due process challenge).

U.S. ex rel. Ford v. Ahitow, 888 F.Supp. 909 (C.D.Ill. 1995), and lower court decision, People v. Ford, 581 N.E.2d 1189 (Ill.App. 4 Dist. 1991).
People v. Campos, 592 N.E.2d 85 (Ill.App. 1 Dist. 1992). Subsequent history: appeal denied, 602 N.E.2d 460 (Ill. 1992), habeas corpus denied, 827 F.Supp. 1359 (N.D. Ill. 1993), affirmed, 37 F.3d 1501 (7th Cir. 1994), certiorari denied, 514 U.S. 1024 (1995).

Re double jeopardy — State v. Smith, 676 So.2d 1068 (La. 1996), rehearing denied, 679 So.2d 380 (La. 1996).

State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S. 931 (1990).
Re establishment clause — State v. Bauer, 471 N.W.2d 363 (Minn. App. 1991).

State v. Holcomb, 956 S.W.2d 286 (Mo. App. W.D. 1997).

Re due process — State v. Black, 526 N.W.2d 132 (Wis. 1994) (upholding earlier statute).