House Report 108-420 - LACI AND CONNER'S LAW

[House Report 108-420]
[From the U.S. Government Publishing Office]

108th Congress Rept. 108-420
HOUSE OF REPRESENTATIVES
2d Session Part 1

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LACI AND CONNER'S LAW

_______

February 11, 2004.--Ordered to be printed

_______

Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 1997]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 1997) 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, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.

CONTENTS

Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 21
Committee Consideration.......................................... 21
Vote of the Committee............................................ 21
Committee Oversight Findings..................................... 23
New Budget Authority and Tax Expenditures........................ 24
Congressional Budget Office Cost Estimate........................ 24
Performance Goals and Objectives................................. 25
Constitutional Authority Statement............................... 25
Section-by-Section Analysis and Discussion....................... 25
Changes in Existing Law Made by the Bill, as Reported............ 26
Committee Jurisdiction Letters................................... 30
Markup Transcript................................................ 32
Dissenting Views................................................. 81

The Amendment

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Unborn Victims of Violence Act of
2004'' or ``Laci and Conner's Law''.

SEC. 2. PROTECTION OF UNBORN CHILDREN.

(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 90 the following:

``CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

``Sec.
``1841. Protection of unborn children.

``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.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 90 the following new item:

``90A. Protection of unborn children........................ 1841''.

SEC. 3. MILITARY JUSTICE SYSTEM.

(a) Protection of Unborn Children.--Subchapter X of chapter 47 of
title 10, United States Code (the Uniform Code of Military Justice), is
amended by inserting after section 919 (article 119) the following new
section:

``Sec. 919a. Art. 119a. Protection of unborn children

``(a)(1) Any person subject to this chapter who 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 of title 18) 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 this chapter 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 accused 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 880, 918, and 919(a) of this title (articles 80, 118, and
119(a)) 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 sections
918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title
(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
``(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) 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.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such subchapter is amended by inserting after the item relating to
section 919 the following new item:

``919a. 119a. Protection of unborn children.''.

Purpose and Summary

Under current Federal law, an individual who commits a
Federal crime of violence against a pregnant woman receives no
additional criminal charge or punishment for killing or
injuring the woman's unborn child during the commission of the
crime. Therefore, except in those States that recognize unborn
children as victims of such crimes, injuring or killing an
unborn child during the commission of a violent Federal crime
has no legal consequence.\1\
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\1\ Fifteen States currently have laws that recognize the unborn as
victims throughout the period of prenatal development. Another thirteen
States have laws that recognize the unborn as victims during part of
their prenatal development, and six other States criminalize certain
specific conduct that ``terminates a pregnancy'' or causes a
miscarriage. Thus, at least sixteen States provide little or no
protection to unborn victims of violence.
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The ``Unborn Victims of Violence Act of 2003'' (the
``Act''), H.R. 1997, was designed to fill this void in Federal
law by providing that an individual who injures or kills an
unborn child during the commission of certain Federal crimes of
violence can be charged with a separate offense. The punishment
for that separate offense is the same as the punishment
provided under Federal law had the same injury or death
resulted to the pregnant woman. If the perpetrator commits the
predicate offense with the intent to kill the unborn child, the
punishment for that offense is the same as the punishment
provided under Federal law for intentionally killing or
attempting to kill a human being.
By its express terms, the Unborn Victims of Violence Act
does not apply to, nor in any way affect nor alter, the ability
of a woman to have an abortion. The law states that it will not
permit 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, has been
obtained or for which such consent is implied by law.'' H.R.
1997, 108th Congress (1st. Sess. 2003), Sec. 2(c)(1). The bill
would also exempt from prosecution ``any person for any medical
treatment of the pregnant woman or her unborn child'' H.R.
1997, 108th Congress (1st. Sess. 2003), Sec. 2(c)(2) or ``any
woman with respect to her unborn child.'' 108th Congress (1st
Sess. 2003), Sec. 2(c)(3). In this respect, the bill would
rectify the current injustice in Federal law by protecting a
mother's constitutional right and interest in having a baby
from unwanted intrusion by third parties.

Background and Need for the Legislation

Recent studies in Maryland, North Carolina, New York City,
and Illinois have uncovered a disturbing statistic: homicide is
the leading cause of death of pregnant women in those areas of
the country.\2\ Some States have already identified and
addressed this tragic problem by enacting statutes permitting
the prosecution of a person for the injury to, or murder of, an
unborn child, in addition to the prosecution for the injury to,
or death of, the mother. Allowing such prosecutions not only
results in future deterrence of such crimes,\3\ but it also
brings a sense of closure to the grieving families who have
lost not one, but two family members.\4\ Because current
Federal law does not allow for such prosecution, there is an
urgent need for such legislation. In fact, a recently-released
poll conducted by Princeton Survey Research Associates for
Newsweek reveals that 84% of Americans believe that prosecutors
should be able to bring a homicide charge on behalf of an
unborn child killed in the womb.\5\ The Unborn Victims of
Violence Act, H.R. 1997, is designed to respond to this
overwhelming desire of the American public to provide, under
Federal law, that an individual who injures or kills an unborn
child during the commission of certain Federal crimes of
violence will be charged with a separate offense and thus
susceptible to additional penalties.
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\2\ See Victoria Frey, Examining Homicide's Contribution to
Pregnancy-Associated Deaths, 285 JAMA 1510 (2001) (summarizing the
various studies); Isabelle L. Horon and Diana Cheng, Enhanced
Surveillance for Pregnancy-Associated Mortality--Maryland, 1993-1998,
285 JAMA 1455 (2001); Linn H. Parsons and Margaret A. Harper, Violent
Maternal Deaths in North Carolina, 94 Obstet.Gynecol. 990-993 (1999);
Dannenberg, et al., Homicide and Other Injuries as Causes of Maternal
Death in New York City, 1987 through 1991, 172 Am.J.Obstet.Gynecol.
1557-1564 (1995); Fildes, et al., Trauma: The Leading Cause of Maternal
Mortality, 32 J.Trauma 643-645 (1992).
\3\ See The Unborn Victims of Violence Act of 2003: Hearings on
H.R. 1997 Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 108th Cong. 11 (2003) (statement of Tracy Marciniak)
[hereinafter ``Marciniak Testimony''] (``Before his trial, my attacker
said on TV that he would never have hit me if he had thought that he
could be charged with the killing of his child.''); id. at 28-29 (``if
you look at the other laws, if you look at a drunk driver, if they know
they can get punished for that crime, they are going to think twice. If
an attacker of a pregnant woman knows that they can get prosecuted for
harming or killing that woman's child, they are going to think twice
before they do it.'').
\4\ See Marciniak Testimony at 11-12 (``I know that some lawmakers
and some groups insist that there is no such thing as an unborn victim
and that the crimes like this only have a single victim. But this is
callous, and it is wrong. Please don't tell me that my son was not a
real victim of a real crime. We are both victims but only I survived. .
. . I do not want to think of any surviving mother being told what I
was told, that she did not really lose a baby, that nobody really died.
I say no surviving mother, father, or grandparent should ever again be
told that their murdered loved one never even existed in the eyes of
the law.''); see also The Unborn Victims of Violence Act of 1999:
Hearings on H.R. 2436 Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary, 106th Cong. 40-43 (1999) (statement of
Michael Lenz) [hereinafter ``Lenz Testimony''] (``Should we as a people
allow that act of violence [the Oklahoma City Bombing] to remain a
victimless crime? No Michael James Lenz, III ever mentioned? I don't
think that would be right. In any case, I lost the two people I loved
the most that day, and the official death toll for the Murrah bombing
remains at 168. In addition to Carrie, there were two other expecting
mothers in the building that day, three unborn children. Passing this
bill won't bring my wife and son back to me, but it would go a long way
toward at least recognizing Michael's existence and the loss of 7 years
of responsible action to gain that life. A violent criminal act that
results in the death of a potential life is worth prosecution on its
own merits, regardless of the other counts against the defendant.'');
See The Unborn Victims of Violence Act of 2001: Hearing on H.R. 503
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong. 33-36 (2001) (statement of William Croston)
[hereinafter Croston Testimony] (``In closing, the Committee should
understand that our family will forever be mourning the loss of Ruth
Croston and our unborn niece. Our grief will last a lifetime. The
emotional effects of the death of our niece resurface each time we hear
about another unnecessary act of violence against a pregnant woman. The
impact of the irresponsible actions of Reginald Falice will be with me
and my family for the rest of our lives.''); Letter from Sharon Rocha,
mother of Laci Peterson and grandmother of Conner Peterson, to United
States Senators Mike DeWine, Lindsey Graham, and Orrin Hatch, and
United States Congresswoman Melissa Hart (June 16, 2003) (on file with
House Committee on the Judiciary) (``When a criminal attacks a woman
who carries a child, he claims two victims. I lost a daughter, but I
also lost a grandson. . . . I hope that every legislator will clearly
understand that adoption of such a single-victim amendment [The
Motherhood Protection Act] would be a painful blow to those, like me,
who are left alive after a two-victim crime, because Congress would be
saying that Conner and other innocent unborn victims like him are not
really victims--indeed, that they never really existed at all. But our
grandson did live. He had a name, he was loved, and his life was
violently taken from him before her ever saw the sun.'').
\5\ Fifty-six percent (56%) of those surveyed believe that a
homicide charge could be brought at any point during the pregnancy.
Twenty-eight percent (28%) believe such a charge should apply only
after the baby is ``viable.'' Only 9 percent (9%) believe that a
homicide charge should never be allowed on behalf of an unborn child.
Debra Rosenberg, Should a Fetus Have Rights?, Newsweek, June 2003.
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CURRENT FEDERAL LAW

The ``Born Alive'' Rule
Federal law does not currently permit prosecution of
violent criminals for killing or injuring unborn children.
Instead, Federal criminal statutes incorporate the common law
``born alive'' rule, which provides that a criminal may be
prosecuted for killing an unborn child only if the child was
born alive after the assault and later died as a result of the
fetal injuries.\6\
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\6\ See United States v. Spencer, 839 F.2d 1341 (9th Cir. 1988).
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The born alive rule, however, has been rendered obsolete by
progress in science and medicine. As one commentator explains,
``the historical basis of the born alive rule was developed out
of a lack of sophisticated medical knowledge.'' \7\ Because
pregnancy was difficult to determine, the common law recognized
that live birth was the most reliable means of ensuring that a
woman was with child and that the child was in fact a living
being.\8\
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\7\ Cari L. Leventhal, Comment, The Crimes Against the Unborn Child
Act: Recognizing Potential Human Life in Pennsylvania Criminal Law, 103
Dick. L. Rev. 173, 175 (1998).
\8\ Id. at 175-76. See also State v. Trudell, 755 P.2d 511, 513
(Kan. 1988) (same); Clarke D. Forsythe, Homicide of the Unborn Child:
The Born Alive Rule and Other legal Anachronisms, 21 Val. U. L. Rev.
563, 567-80 (1987) (same).
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The use of ultrasound, fetal heart monitoring, in vitro
fertilization, and fetoscopy has greatly enhanced our
understanding of the development of unborn children.\9\
Pursuant to this enhanced knowledge, most jurisdictions today
recognize third party tort actions for injury or death of an
unborn child.\10\ Even the United States Supreme Court in Roe
v. Wade acknowledged the inheritance and other property rights
that unborn children enjoy in modern law.\11\
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\9\ See Mary E. Barrazoto, Note, Judicial Recognition of Feticide:
Usurping the Power of the Legislature?, 24 J. Fam. L. 43, 45 (1986).
\10\ See Robin M. Trindel, note, ``Fetal Interests vs. Maternal
Rights: Is the State Going too Far?,'' 24 Akron L.R. 743, 745 n. 17-18
(1991) (listing numerous cases defining such third party tort actions
on behalf of unborn children).
\11\ See Roe v. Wade, 410 U.S. 113, 162 (1973).
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Because of these developments, the current trend in
American law is to abolish the born alive rule.\12\ In many
States, this abolition is manifest in the enactment of
legislation making it a crime to kill an unborn child.\13\ Such
legislation further reflects the growing trend in American
jurisdictions of recognizing greater legal protections for
unborn children, a trend consistent with the advancements in
medical knowledge and technology.\14\
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\12\ See Leventhal, supra note 7, at 176.
\13\ See Ariz. Rev. Stat. Sec. 13-1103 (A)(5); Ariz. Rev. Stat.
Sec. 13-702(c)(10) (the killing of an ``unborn child'' at any stage of
pre-natal development is manslaughter); Idaho Sess. Law Chap. 330
(SB1344) (murder defined as the killing of a ``human embryo or fetus''
under certain conditions. The law provides that manslaughter includes
the unlawful killing of a human embryo or fetus without malice. The law
provides that a person commits aggravated battery when, in committing
battery upon the person of a pregnant female, that person causes great
bodily harm, permanent disability or permanent disfigurement to an
embryo or fetus); Ill. Comp. Stat. ch. 720, Sec. Sec. 5/9-1.2, 5/9-2.1,
5/9-3.2 (1993). Ill. Rev. Stat. ch. 720 Sec. 5/12-3.1, Ill. Rev. Stat.
ch. 720 Sec. 5/12-4.4 (the killing of an ``unborn child'' at any stage
of pre-natal development is intentional homicide, voluntary
manslaughter, or involuntary manslaughter or reckless homicide; a
person commits battery of an unborn child if he intentionally or
knowingly without legal justification and by any means causes bodily
harm to an unborn child); La. Rev. Stat. Ann. Sec. Sec. 14:32.5-
14.32.8, Sec. Sec. 14:2(1), (7), (11) (the killing of an ``unborn
child'' is first degree feticide, second degree feticide, or third
degree feticide); Mich. Stat. Ann. Sec. 28.555 (the killing of an
``unborn quick child'' is manslaughter); Minn. Stat. Ann.
Sec. Sec. 609.266, 609.2661-609.2665, 609.268(1) (the killing of an
``unborn child'' at any stage of pre-natal development is murder
(first, second, or third degree) or manslaughter, (first or second
degree)); Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020 (the killing
of an ``unborn child'' at any stage of pre-natal development is
involuntary manslaughter or first degree murder); Neb. Rev. Stat.
Sec. 28-391 to Sec. 28-394 (the killing of an ``unborn child'' at any
stage of pre-natal development is murder in the first degree, second
degree, or manslaughter); N.D. Cent. Code Sec. Sec. 12.1-17.1-01 to
12.1-17.1-04 (the killing of an ``unborn child'' at any stage of pre-
natal development is murder, felony murder, manslaughter, or negligent
homicide); Ohio Rev. Code Ann. Sec. Sec. 2903.01 to 2903.07, 2903.09
(at any stage of pre-natal development, if an ``unborn member of the
species homo sapiens, who is or was carried in the womb of another'' is
killed, it is aggravated murder, murder, voluntary manslaughter,
involuntary manslaughter, negligent homicide, aggravated vehicular
homicide, and vehicular homicide); 18 Pa. Cons. Stat. Ann.
Sec. Sec. 2601 to 2609 (an individual commits criminal homicide in the
first, second, or third-degree, or voluntary manslaughter of an
``unborn child'' if the individual intentionally, knowingly, recklessly
or negligently causes the death of an unborn child); S.D. Codified Laws
Ann. Sec. 22-16-1, 22-16-1.1, 22-16-15(5), 22-16-20, and 22-16-41,
Sec. Sec. 22-1-2(31), 22-1-2(50A) (the killing of an ``unborn child''
at any stage of pre-natal development is fetal homicide, manslaughter,
or vehicular homicide); Texas legislation (SB 319, Prenatal Protection
Act) (under a law signed June 20, 2003, and effective September 1,
2003, the protections of the entire Texas criminal code extend to ``an
unborn child at every stage of gestation from fertilization until
birth;'' the law does not apply to ``conduct committed by the mother of
the unborn child'' or to ``a lawful medical procedure performed by a
physician or other licensed health care provider with the requisite
consent''); Utah Code Ann. Sec. 76-5-201 et seq. (the killing of an
``unborn child'' at any stage of pre-natal development is treated as
any other homicide). Wis. Stat. Ann. Sec. Sec. 939.75, 939.24, 939.25,
940.01, 940.02, 940.05, 940.06, 940.08, 940.09, 940.10 (the killing of
an ``unborn child'' at any stage of pre-natal development is first-
degree intentional homicide, first-degree reckless homicide, second-
degree intentional homicide, second-degree reckless homicide, homicide
by negligent handling of dangerous weapon, explosives or fire, homicide
by intoxicated use of vehicle or firearm, or homicide by negligent
operation of vehicle). Thirteen other States have homicide laws that
recognize unborn children as victims during certain periods of prenatal
development. See Ark. Stat. Ann. Sec. 5-1-102(13)(b)(i)(a), Ark. Stat.
Ann. Sec. Sec. 5-10-101, Ark. Stat. Ann. Sec. 5-13-201 (a)(5)(a)); Cal.
Pen. Code Sec. 187(a); Fla. Stat. Ann. Sec. 782.09; Fla. Stat. Ann.
Sec. 782.071; Ga. Code Ann. Sec. 16-5-80; Sec. 40-6-393.1; and Sec. 52-
7-12.3; Indiana Code 35-42-1-1, 35-42-1-3, 35-42-1-4; Commonwealth v.
Cass, 467 N.E.2d 1324 (Mass. 1984); Commonwealth v. Lawrence, 536
N.E.2d 571 (Mass. 1989); Miss. Code Ann. Sec. 97-3-37; Nev. Rev. Stat.
Sec. 200.210; Okla. Stat. Ann. tit. 21, Sec. 713, Hughes v. State, 868
P.2d 730 (Okla. Crim. App. 1994); R.I. Gen. Laws Sec. 11-23-5; State v.
Horne, 319 S.E.2d 703 (S.C. 1984), State v. Ard, 505 S.E.2d 328 (S.C.
1998); Tenn. Code Ann. Sec. 39-13-201, 39-13-202, 39-13-210, 39-13-211,
39-13-213, 39-13-214, 39-13-215; Wash. Rev. Code Ann.
Sec. 9A.32.060(1)(b).
\14\ See People v. Hall, 557 N.Y.S.2d 879 (N.Y. App. Div. 1990)
(relying on advancements in medical technology to determine that a 28-
week-old fetus removed from its mother's womb by Caesarian section and
immediately placed on a ventilator was a ``person'' under New York
Penal Law). See also Annissa R. Obasi, Protecting Our Vital Organs: The
Case for Fetal Homicide Laws in Texas, 4 Tex. Wesleyan L. Rev. 207, 216
(1998) (explaining that advancements in medical science have influenced
the development of fetal rights); Stephanie Ritrivi McCavitt, Note, The
``Born Alive'' Rule: A Proposed Change to the New York Law Based on
Modern Medical Technology, 36 N.Y.L. Sch. L. Rev. 609, 618 (1991)
(arguing that courts should be willing to use technological
advancements to determine whether unborn children are ``persons'' for
homicide purposes).
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H.R. 1997 thus follows the current trend of modern legal
theory and practice by dismantling the common law born alive
rule at the Federal level. The legislation ensures that Federal
prosecutors are able to punish those who injure or kill unborn
children during the commission of violent Federal crimes,
whether or not the child is fortunate enough to survive the
attack and be born alive.
Inadequacy of Federal Sentencing Guidelines
Opponents of H.R. 1997 have argued that the Act is
unnecessary because current Federal sentencing guidelines
provide enhanced punishment for violent criminals who injure or
kill unborn children during the commission of Federal crimes.
This argument was set forth by attorney Ronald Weich in his
testimony before the Subcommittee on the Constitution during a
hearing in the 106th Congress on this legislation.\15\ However,
this argument is baseless. Not one of the cases cited by Mr.
Weich held that Federal sentencing guidelines currently
authorize enhanced punishment solely because the victim was
pregnant or because an unborn child was injured or killed
during the commission of a violent crime. In fact, in two of
the cases specifically cited by Mr. Weich, the defendants
received sentence enhancements under Sec. 2B3.1(b)(3)(A) of the
United States Sentencing Guidelines because the defendants
caused ``bodily injury'' to the victims of robberies, not
because the victims were pregnant or because their unborn
children were injured or killed.\16\ In a third case cited by
Mr. Weich, United States v. Manuel,\17\ the court upheld a
sentence enhancement not because the victim of the crime was
pregnant, but because of the defendant's criminal history,
which included two assaults on his wife, on one occasion when
she had been pregnant.\18\
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\15\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong. (1999) (statement of Ronald Weich, Esq.).
\16\ See United States v. Winzer, No. 97-50239, 1998 WL 823235, at
*1 (9th Cir. Nov. 16, 1998) (upholding bodily injury sentence
enhancement because victim ``was knocked to the ground'' and
``experienced soreness to her right shoulder and neck and suffered a
discharge of blood''); United States v. Peoples, No. 96-10231, 1997 WL
599363, at *1 (9th Cir. Sept. 22, 1997) (upholding bodily injury
enhancement because ``the victim, an 8-month pregnant woman forced to
lie face down on the floor, suffered injuries and sought medical
attention after being struck in the back by a twenty-five pound loot
bag'').
\17\ No. 91-30232, 1993 WL 210680 (9th Cir. June 15, 1993).
\18\ See id. at *2.
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Nor did the court hold, in United States v. James,\19\ as
Mr. Weich contended, that a pregnant woman may be treated as a
``vulnerable victim'' under Sec. 3A1.1 of the United States
Sentencing Guidelines, which provides a sentence enhancement if
the defendant knew or should have known the victim was
``vulnerable'' because of ``age, physical or mental
condition.'' In that case, the court of appeals upheld a
vulnerable victim sentence enhancement for a bank robber
because he made the following statement to a pregnant bank
teller during the commission of the robbery: ``Don't give me
any of the trackers, alarms or magnets or I'll kill you. I
notice that you are pregnant and I love children, but I will
come back and kill you and the baby.'' \20\ The court noted
that the defendant's sentence was properly enhanced under
Sec. 3A1.1 not ``simply because [the victim] was pregnant,''
\21\ but because ``her pregnancy created a potential
vulnerability which [the defendant] acknowledged and exploited
when he expressly threatened to kill her unborn child.'' \22\
---------------------------------------------------------------------------
\19\ 139 F.3d 709 (9th Cir. 1998).
\20\ Id. at 714.
\21\ Id.
\22\ Id. at 715.
---------------------------------------------------------------------------
Even assuming, however, that current Federal sentencing
guidelines would permit a two-level sentence enhancement when
the victim of a violent crime is pregnant, whether under the
``bodily injury'' or ``vulnerable victim'' provisions, such a
trivial increase in punishment would not reflect the
seriousness with which violent crimes against pregnant women
and unborn children should be treated. For example, if an
individual assaults a Federal official in violation of 18
U.S.C. Sec. 111, the base offense level for that offense under
the sentencing guidelines is 15, which carries a sentence of 18
to 24 months.\23\ If the Federal official is pregnant and her
unborn child is killed or injured as a result of the assault, a
bodily injury or vulnerable victim sentence enhancement would
result in an offense level of 17, which carries a sentence of
24 to 30 months.\24\ The permissible range of punishment for
the assault would thus increase by only an additional 6 months,
even if the assailant intended to kill the unborn child. This
minor increase in punishment is woefully inadequate for the
offense of killing or injuring an unborn child.
---------------------------------------------------------------------------
\23\ See U.S.S.G. Sec. 2A2.2(a).
\24\ See U.S.S.G. Sec. 2A2.2(b)(A).
---------------------------------------------------------------------------
In short, there does not appear to be a single published or
unpublished decision in which a Federal court has enhanced a
sentence for a violent criminal solely because the victim was
pregnant or because an unborn child was killed or injured
during the commission of the crime. And, even assuming a
trivial sentence enhancement could be imposed under current
Federal sentencing guidelines, such an enhancement would not
provide just punishment for what should be treated as a very
serious offense.

THE NEED FOR H.R. 1997

The Need to Protect the Unprotected
1. Laci and Conner Peterson
A tragic incident that recently occurred in Modesto,
California, illustrates the value of unborn victim legislation
on the State level and the necessity for such legislation in
Federal law. On Christmas Eve, 2002, a 27-year-old substitute
school teacher named Laci Peterson was reported missing by her
family. At the time of her reported disappearance, Laci
Peterson was about 8 months pregnant, expecting to give birth
around February 10, 2003. Laci and her husband Scott had
learned that they were having a boy and had named their son
Conner. In anticipation of the arrival of Conner, Laci Peterson
decorated Conner's room, picked out baby clothes, and closely
monitored her health. A massive search for Laci began on the
night of December 24, 2002. However, Laci and Conner were not
found. Over the next several weeks and months, Laci and
Conner's family, hundreds of police officers, and countless
volunteers worked diligently to help find Laci and Conner. A
volunteer center was set up in Modesto and the Carole Sund-
Carrington Memorial Reward Foundation posted a $500,000 reward
for Laci and Conner's safe return. On April 14, 2003, after
months of searching, Laci and Conner's decomposed bodies were
found washed ashore in the San Francisco Bay about a mile
apart. Laci's husband and Conner's father Scott was
subsequently arrested and charged with two counts of first-
degree murder under California law for the deaths of both Laci
and Conner.\25\
---------------------------------------------------------------------------
\25\ According to a FOX News opinion poll, 84% of Americans believe
that Scott Peterson should be charged with two counts of murder--not
one. See Dana Blanton, Peterson Should Get Two Counts of Murder, FOX
News Channel (Apr. 25, 2003) available at http://www.foxnews.com/story/
0,2933,85158,00.html (last visited January 18, 2004).
---------------------------------------------------------------------------
Fortunately for the family of Laci and little Conner,
California classifies the unlawful killing of a ``fetus'' as
murder \26\ and substantial justice might be achieved. Section
187 of the California Penal Code was amended in 1970 to include
``fetus'' in the definition of murder after the California
Supreme Court determined that same year in Keeler v. Superior
Court \27\ that a man who killed a fetus carried by his former
wife could not be prosecuted for murder. The court reasoned
that the State legislature had intended the term ``human
being'' in the statute to include only persons born alive. The
California legislature responded immediately by amending the
statutory definition of ``murder'' to include the unlawful
killing of a ``fetus.''
---------------------------------------------------------------------------
\26\ Cal. Penal Code Sec. 187 (2003) (``Murder is the unlawful
killing of a human being, or a fetus, with malice aforethought.'').
\27\ 470 P.2d 617 (Cal. 1970).
---------------------------------------------------------------------------
2. Tracy and Zachariah Marciniak
Tracy Marciniak was just 4 days away from delivering her
son, Zachariah, when her life changed forever. On the night of
February 8, 1992, in Milwaukee, Wisconsin, Tracy had a fight
with Glendale Black, her husband at the time. Fully aware that
Tracy very much wanted the child, Mr. Black punched her twice
in the abdomen, refused to call for help, and prevented Tracy
from doing so. Eventually he relented, and Tracy was rushed to
the emergency room where she delivered Zachariah by Caesarian
section. Unfortunately, however, by the time she reached the
hospital Zachariah was already dead. Tracy herself was given
only forty-eight hours to live, although she miraculously
survived the attack.
In 1992, Wisconsin did not have an unborn victims law, so
Zachariah was not legally recognized as a victim of a crime. As
a result, Tracy and Zachariah's attacker was convicted only for
his assault on Tracy, and he was not punished for the loss of
Zachariah's life. In 1998, in response to Tracy's case and
others like it, the Wisconsin legislature overwhelmingly
enacted one of the nation's strongest unborn victims laws.
3. Zaneta and Baby Browne
Zaneta Browne, a 29-year-old mother of three, lived in
Rochester, New York. In 2002, she became pregnant with twins
from a relationship with her former fiance, Jerold Ponder.
Ponder, however, did not want her to have the children. So, on
July 14, 2002, Ponder lured Browne, who was at the time 4
months pregnant, to a wooded area and shot her in the face and
the back of the head with a .22-caliber rifle. Ponder's wife,
Keya, had recently bought the rifle and assisted Ponder by
wrapping Browne in a pink blanket, covering her head and feet
in plastic garbage bags, and burying Browne in a shallow grave
in Chili, New York. Both Jerold and Keya Ponder were later
arrested and ultimately convicted of second-degree murder in
the death of Zaneta Browne. However, no charges were brought
against the couple for the murder of the twins because New York
does not recognize crime victims unless they are born alive. As
a result, the violent deaths of these two unborn babies will go
unpunished and the murderers will be eligible for parole by
2008.\28\
---------------------------------------------------------------------------
\28\ See Married Couple Charged With Killing Pregnant Woman, The
Associated Press, July 20, 2002; Michael Zeigler, Couple Indicted in
Slaying, Tampering, Democrat & Chronicle, Aug. 30, 2002; Michael
Zeigler, Maximum Sentence for Slaying Accomplice, Democrat & Chronicle,
May 3, 2003.
---------------------------------------------------------------------------
4. Karlene and Jasmine Robbins
The need for H.R. 1997 is further illustrated by the case
of United States v. Robbins.\29\ In that case, Airman Gregory
Robbins and his wife Karlene, who was over 8 months pregnant
with a daughter they had named Jasmine, resided on Wright-
Patterson Air Force Base, Ohio, an area of exclusive Federal
jurisdiction. On September 12, 1996, Mr. Robbins wrapped his
fist in a T-shirt (to reduce the chance that he would inflict
visible bruises) and badly beat his wife ``by striking her
repeatedly in her face and abdomen with his fist.'' \30\
---------------------------------------------------------------------------
\29\ 48 M.J. 745 (A.F.C.C.A. 1998). During the 106th Congress, the
Subcommittee on the Constitution heard testimony regarding the Robbins
case from Lieutenant Colonel Keith L. Roberts, Acting Chief of the Air
Force Military Justice Division. See The Unborn Victims of Violence
Act: Hearings on H.R. 2436 Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 106th Cong. (1999) (statement of Lt.
Colonel Keith L. Roberts, Acting Chief of the Air Force Military
Justice Division).
\30\ Id. at 747.
---------------------------------------------------------------------------
Mrs. Robbins survived the attack with ``a severely battered
eye, a broken nose, and a ruptured uterus.'' \31\ She was taken
to the emergency room, but medical personnel could not detect
the baby's heartbeat.\32\ Doctors performed an emergency
surgery on Mrs. Robbins and found:
---------------------------------------------------------------------------
\31\ Id.
\32\ See id.

Jasmine laying sideways, dead, in [Mrs. Robbins's]
abdominal cavity. As a result of [Mr. Robbins's]
repeated blows rupturing [Mrs. Robbins's] uterus, the
placenta was torn from the inner uterine wall, which
expelled Jasmine into [Mrs. Robbins's] abdominal
cavity.\33\
---------------------------------------------------------------------------
\33\ Id.

Air Force prosecutors recognized that ``[f]ederal homicide
statutes reach only the killing of a born human being,'' \34\
and that Congress ``has not spoken with regard to the
protection of an unborn person . . .'' \35\ As a result, the
prosecutors attempted to prosecute Mr. Robbins for Jasmine's
death under Ohio's fetal homicide law, using Article 134 of the
Uniform Code of Military Justice.\36\ Article 134
``incorporates by reference all Federal criminal statutes and
those State laws made Federal law via the [Assimilated Crimes
Act, 18 U.S.C. Sec. 13].'' \37\
---------------------------------------------------------------------------
\34\ Id. at 752.
\35\ Id.
\36\ Id. at 748.
\37\ Id.
---------------------------------------------------------------------------
Mr. Robbins pleaded guilty to involuntary manslaughter for
Jasmine's death, and the military judge sentenced him to
confinement for 8 years, a dishonorable discharge, and a
reduction to the lowest enlisted grade.
5. Shiwona and Heaven Pace
Shiwona Pace was a 23-year-old college student in Little
Rock, Arkansas. She had a 5-year-old son and an unborn daughter
named Heaven Lashay. On Aug. 26, 1999, 1 day before her
expected delivery date, Shiwona was brutally attacked by three
men who choked her, punched her, and hit her in the face with a
gun while shouting, ``Your baby is dying tonight.'' \38\ After
30 minutes, they left her sobbing on the floor. At the
hospital, Shiwona learned that Heaven had died in her womb. The
assailants were later arrested and police learned that Erik
Bullock, Shiwona's former boyfriend, had paid them $400 to kill
Heaven.\39\ A month before this incident, Arkansas had adopted
a new State law that recognized unborn children as crime
victims. Thanks to that law, Erik Bullock and the men he hired
were prosecuted and convicted for their attack on Shiwona and
her baby.\40\
---------------------------------------------------------------------------
\38\ Jim Brooks, Mom's Jest at Door Turned Brutally Real, Arkansas
Democrat-Gazette, Sept. 9, 1999.
\39\ See Matthew Waite, Suspects in Death of Fetus Posts Bond,
Arkansas Democrat-Gazette (Nov. 12, 1999).
\40\ See Pine Bluff Man Pleads Guilty, Gets 40-Year Sentence,
Associated Press Newswires (Apr. 3, 2001).
---------------------------------------------------------------------------
6. Carrie and Michael James Lenz III
On April 19, 1995, Carrie Lenz, a Drug Enforcement Agency
employee, was showing coworkers ultrasound pictures of her
unborn child at 6 months when the Murrah Federal Building in
Oklahoma City was destroyed by a bomb. Just the day before the
horrific bombing, she and her husband, Michael Lenz, who
testified before the Subcommittee on the Constitution during
the 106th Congress, learned via the ultrasound that they were
having a boy and named him Michael James Lenz III.\41\ Under
Federal law, those responsible for the bombing received no
additional punishment for the death of the unborn baby.
Fortunately, Oklahoma recognizes homicide of a ``viable fetus''
as first degree murder.
---------------------------------------------------------------------------
\41\ See Lenz Testimony. See also Karen Abbott & Lynn Bartels,
Tears Reflect the Horror of Loss, Nichols Courtroom in Shock at
Wrenching, Desolate Tales as Jurors Begin Penalty Phase, Rocky Mountain
News, Dec. 30, 1997, at 5A.
---------------------------------------------------------------------------
7. Ruth and Baby Croston
Ruth Croston was 5 months pregnant when she was shot on
April 21, 1998, by her estranged husband, Reginald Anthony
Falice, as she sat in her car at a Charlotte, North Carolina
intersection. She and her unborn daughter died after being shot
at least five times by Falice. He was prosecuted and convicted
of interstate domestic violence and using a firearm in the
commission of a violent crime.\42\ However, there was no
criminal charge for the murder of the unborn baby girl. Ms.
Croston's brother, William Croston, testified at a hearing
before the Subcommittee on the Constitution on March 15, 2001,
concerning the Unborn Victims of Violence Act of 2001.\43\ Mr.
Croston recounted how his family had to endure the trial of Mr.
Falice for the murder of Ms. Croston, while Mr. Falice was not
charged with murder of the unborn child of Ms. Croston.\44\ As
Mr. Croston stated, ``Under current law, we simply choose to
dismiss the life of the unborn child. In fact, prior to the
beginning of the trial, the Honorable Judge Graham C. Mullen
indicated that he did not want the jury to know that Ruth
Croston was carrying an unborn child.'' \45\ The unborn child
was the child of Ruth Croston and Reginald Falice, and the
failure of the law is that it ``does not consider the unborn
child a part of the irresponsible actions committed by Reginald
Falice.'' \46\
---------------------------------------------------------------------------
\42\ See Georgia Man Convicted in Slaying of Estranged, Pregnant
Wife, Associated Press, July 14, 1999.
\43\ See Croston Testimony at 33-36.
\44\ Id. at 33.
\45\ Id.
\46\ Id. at 34.
---------------------------------------------------------------------------
8. Monica and Baby Smith
Monica Smith, a pregnant secretary, and her unborn child
were killed in the World Trade Center bombing in New York on
February 26, 1993.\47\ Jurors at one trial were told about the
harm done to Ms. Smith's unborn child,\48\ but no additional
charge or punishment could be imposed under Federal law for the
death of that child.
---------------------------------------------------------------------------
\47\ See Jeanne King, Pictures of N.Y. Bombing Stir Emotional
Response from Jury, Houston Chronicle, Aug. 8, 1997, at 26.
\48\ See id.
---------------------------------------------------------------------------
9. Deanna, Kayla, and Jessica Mitts
On January 1, 1999, Deanna Mitts, who was 8 months pregnant
with a baby girl named Jessica, returned home with her 3-year
old daughter, Kayla, after celebrating New Year's Eve with her
parents. Shortly after entering her Connellsville, Pennsylvania
apartment, she, Kayla, and her unborn child were tragically
killed in an explosion from a pipe bomb.\49\ Joseph Minerd, the
father of Jessica, was arrested almost a year later and tried
in Federal court under the Federal arson statute. At trial, it
was learned that Minerd was an abusive ex-boyfriend of Mitts,
and he had openly discussed killing baby Jessica.\50\ Minerd
did not want Mitts to have Jessica because he did not want to
be the father and Mitts refused to have an abortion. It was
also deduced at trial that the end cap of the pipe bomb had
pierced Mitts stomach and killed Jessica, while Deana and Kayla
were killed when the pipe bomb ruptured a natural gas line.
Minerd was subsequently convicted in Federal court for the
murder of Deanna and Kayla.\51\ However, Minerd received no
additional charge or punishment for killing Jessica.
---------------------------------------------------------------------------
\49\ See Lawrence Walsh, Bombing Shocks Small Town Blast That
Killed Mother, Pittsburgh Post-Gazette, May 2, 1999, at B1.
\50\ Torsten Ove, Pipe Bomb Death Penalty Trial Opens, Pittsburgh
Post-Gazette, May 1, 2002.
\51\ Torsten Ove, Bomber is Guilty of Murder, Pittsburgh Post-
Gazette, May 18, 2002; Torsten Ove, Convicted Bomber's Relatives Pleads
for His Life, Pittsburgh Post-Gazette, May 21, 2002.
---------------------------------------------------------------------------
10. Tammy Lynn and Baby Baker
On December 3, 1997, Tammy Lynn Baker was near term with
her unborn child when a bomb exploded outside her apartment
killing her and her unborn child.\52\ Almost 3 years later, Ms.
Baker's ex-boyfriend and the unborn child's father, Coleman
Leake Johnson, Jr., were arrested on Federal explosives charges
for the death of Ms. Baker. Johnson apparently did not want to
pay child support for his unborn child. Johnson was
subsequently convicted for the murder of Ms. Baker, but
received no separate charge or additional punishment for the
intentional murder of his and Mrs. Baker's unborn child.\53\
---------------------------------------------------------------------------
\52\ See Dominic Perella, Bombings Instill Fear in Small Town:
Suspicion of Serial Blasts Complicates Life in Louisa, Va., Detroit
News, Dec. 27, 1998, at A2.
\53\ Brooke A. Masters, Va. Man Convicted in Fatal Bomb Attack, The
Washington Post, May 24, 2001.
---------------------------------------------------------------------------
There are numerous other instances where women have
exercised their right to have a child only to have that right
violently taken away from them by other individuals. Even
opponents of H.R. 1997 equate a woman's right to have a child
with that of a woman's right to have an abortion.\54\ H.R. 1997
establishes equity in Federal law by granting the same
protection to women who want to have a child as is enjoyed by
women who want to have an abortion.
---------------------------------------------------------------------------
\54\ See The Unborn Victims of Violence Act of 2003: Hearings on
H.R. 1997 Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 108th Cong. 28 (2003) (statement of Rep. Jerrold Nadler,
Ranking Member) (``For those of us who are pro-choice, the right to
choose extends not just to a woman's right to have an abortion but to a
woman's right to carry her pregnancy to term and deliver a healthy baby
in safety.'').
---------------------------------------------------------------------------
H.R. 1997
H.R. 1997 fills the current void in Federal law by
providing that an individual who injures or kills an unborn
child during the commission of one of over sixty Federal crimes
will be guilty of a separate offense. The punishment for that
separate offense would be the same as the punishment provided
under Federal law for that conduct had the same injury or death
resulted to the unborn child's mother. An offense under H.R.
1997 does not require proof that the defendant knew, or should
have known, that the victim was pregnant, or that the defendant
intended to cause the death or injury of the unborn child. If,
however, the defendant committed the predicate offense with the
intent to kill the unborn child, the punishment for the
separate offense will be the same as that provided under
Federal law for intentionally killing or attempting to kill a
human being.
For example, if an individual assaults a Member of Congress
in violation of 18 U.S.C. Sec. 111, and as a result of that
assault kills the Congresswoman's unborn child, the perpetrator
may be punished for either second-degree murder, voluntary
manslaughter, or involuntary manslaughter for killing the
unborn child (depending upon the circumstances surrounding the
assault)--that is, the same punishment the individual would
have received had the Congresswoman died as a result of the
assault.\55\ If the prosecution proves that the defendant
assaulted the Congresswoman with the intent to kill the unborn
child, the perpetrator may be prosecuted for first or second
degree murder or voluntary manslaughter if the unborn child
dies, or attempted murder or manslaughter if the child survives
the assault.
---------------------------------------------------------------------------
\55\ Under the Federal homicide statutes, second-degree murder
requires proof of ``(1) the physical element of unlawfully causing the
death of another, and (2) the mental element of malice, satisfied
either by an intent to kill, an intent to cause serious bodily injury,
or the existence of a depraved heart.'' United States v. Browner, 889
F.2d 549, 552 (5th Cir. 1989). Voluntary manslaughter also requires
proof of an unlawful and malicious killing of another, but the offense
``is deemed to be without malice because it occurs in what the courts
called `the heat of passion.' '' Id. Involuntary manslaughter is
distinguished from both murder and voluntary manslaughter by an absence
of malice, and that absence ``arises not because of provocation induced
passion, but rather because the offender's mental state is not
sufficiently culpable to meet the traditional malice requirements.''
Id. at 553. With involuntary manslaughter, ``the requisite mental state
is reduced to `gross' or `criminal' negligence, a culpability that is
far more serious than ordinary tort negligence but still falls short of
that most extreme recklessness and wantonness required for `depraved
heart' malice.'' Id.
---------------------------------------------------------------------------
H.R. 1997 specifically exempts conduct for which the
consent of the pregnant woman has been obtained or for which
such consent is implied by law. The bill also exempts conduct
related to medical treatment of the pregnant woman or her
unborn child, or conduct of the pregnant woman with respect to
her unborn child. The bill further provides that the death
penalty shall not be imposed.

CONSTITUTIONAL ISSUES

Mens Rea and the Doctrine of Transferred Intent
Contrary to assertions made by opponents of H.R. 1997,\56\
the bill does not permit the prosecution of those who act
without criminal intent. Instead, H.R. 1997 operates in a
manner consistent with long-established mens rea principles of
criminal law.
---------------------------------------------------------------------------
\56\ See, e.g. Memorandum of American Civil Liberties Union,
Washington National Office, to Interested Persons 2 (March 14, 2001)
(claiming that conviction for an offense under H.R. 1997 does not
require proof of ``a mens rea (or criminal intent) requirement'');
Letter from Jon P. Jennings, Acting Assistant Attorney General, United
States Department of Justice, to Chairman Henry Hyde, Committee on the
Judiciary, United States House of Representatives 2 (Sept. 9, 1999)
(characterizing H.R. 2436 as ``mak[ing] a potentially dramatic increase
in penalty turn on an element for which liability is strict''); Press
Release of American Civil Liberties Union, Washington National Office 2
(July 21, 1999) (stating that ``H.R. 2436 Lacks a Necessary Mens Rea
Requirement'').
---------------------------------------------------------------------------
As a general rule, H.R. 1997 provides that when one commits
a violent crime against a pregnant woman, with criminal intent,
and thereby injures or kills the victim's unborn child, the
perpetrator is guilty of an additional offense, the punishment
for which is the same as the punishment the defendant would
have received had that same injury or death occurred to the
unborn child's mother. In accordance with the well-established
criminal law doctrine known as ``transferred intent,'' the
criminal intent directed toward the mother ``transfers'' to the
unborn child, and the criminal is liable for the injury or
death of the unborn child just as he would have been liable had
a born person been injured or killed.
The transferred intent doctrine was recognized in England
as early as 1576 in the case of Regina v. Saunders.\57\ In that
case, the court stated that
---------------------------------------------------------------------------
\57\ 2 Plowd. 473, 75 Eng. Rep. 706 (1576).

it is every man's business to foresee what wrong or
mischief may happen from that which he does with an
ill-intention, and it shall be no excuse for him to say
that he intended to kill another, and not the person
killed. . . . For if a man of malice prepense shoots an
arrow at another with an intent to kill him, and a
person to whom he bore no malice is killed by it, this
shall be murder in him, for when he shot the arrow he
intended to kill, and inasmuch as he directed his
instrument of death at one, and thereby has killed
another, it shall be the same offense in him as if he
had killed the person he aimed at, . . . so the end of
the act, viz. the killing of another shall be in the
same degree, and therefore it shall be murder, and not
homicide only.\58\
---------------------------------------------------------------------------
\58\ United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980)
(quoting Regina v. Saunders, 2 Plowd. 473, 474a, 75 Eng. Rep. 706, 708
(1576)).

The transferred intent doctrine was adopted by American
courts during the early days of the Republic \59\ and it is now
black letter law. One prominent criminal law commentator
describes the modern formulation of the doctrine in this
manner:
---------------------------------------------------------------------------
\59\ See id.

[W]hen one person (A) acts (or omits to act) with
intent to harm another person (B), but because of bad
aim he instead harms a third person (C) whom he did not
intend to harm, the law considers him (as it ought)
just as guilty as if he had actually harmed the
intended victim.\60\
---------------------------------------------------------------------------
\60\ Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 284 (2d
ed. 1986).

In such situations, ``A's intent to harm B will be transferred
to C.'' \61\ Therefore,
---------------------------------------------------------------------------
\61\ Id.

where A aims at B with a murderous intent to kill, but
because of a bad aim he hits and kills C, A is
uniformly held guilty of the murder of C. And if A aims
at B with a first-degree-murder state of mind, he
commits first degree murder as to C, by the majority
view. So too, where A aims at B with intent to injure B
but missing B hits and injures C, A is guilty of
battery of C.\62\
---------------------------------------------------------------------------
\62\ Id. at 283.

Another well-known criminal law commentator describes the
application of the doctrine to the crime of murder in language
that is remarkably similar to the language and operation of
---------------------------------------------------------------------------
this bill:

Under the common-law doctrine of transferred intent, a
defendant who intends to kill one person but instead
kills a bystander, is deemed the author of whatever
kind of homicide would have been committed had he
killed the intended victim. If, as to the intended
victim, the homicide would have constituted murder, the
defendant is guilty of murder as to the actual
bystander who was the actual victim. Similarly, if the
homicide would have constituted voluntary manslaughter
as to the intended victim, the defendant is guilty of
voluntary manslaughter as to the bystander who was the
actual victim; and if the homicide, as to the intended
victim, would have been justifiable, as in the case of
self-defense, the defendant is deemed the author of a
justifiable homicide as to the bystander.\63\
---------------------------------------------------------------------------
\63\ 2 Wharton's Criminal Law 291-94 (Charles E. Torcia ed., 15th
ed. 1994).

H.R. 1997 operates on these basic and well-settled
principles. It provides that when one commits a violent crime
against a pregnant woman, and thereby injures or kills the
victim's unborn child, the unlawful intent toward the mother
transfers to the unborn child, and the perpetrator is guilty of
an additional offense of the same level that would have
resulted had the same injury or death occurred to the unborn
child's mother.\64\ It is not necessary for the prosecution to
prove that the defendant knew or should have known that the
victim was pregnant, or that the defendant intended to kill or
injure the unborn child.\65\
---------------------------------------------------------------------------
\64\ H.R. 1997 thus permits prosecution of the defendant for the
offense against the unintended victim (i.e., the unborn child), even
though the defendant succeeded in committing the crime against the
intended victim (i.e., the pregnant woman). The defendant's intent with
respect to the pregnant woman suffices for both offenses. This is the
better view of the transferred intent doctrine. See, e.g., State v.
Worlock, 569 A.2d 1314, 1325 (N.J. 1990) (``reject[ing] defendant's
argument that the successful killing of the intended victim prevents
the `transfer' of that intent to an unintended victim'' because ``the
purpose of deterrence is better served by holding that defendant
responsible for the knowing or purposeful murder of the unintended as
well as the intended victim''); State v. Hinton, 630 A.2d 593, 598-99
(Conn. 1993) (same). Indeed, one Federal court has held that ``[t]here
are even stronger grounds for applying the principle where the intended
victim is killed by the same act that kills the unintended victim.''
United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980). The
Committee rejects the view, followed by some courts, that the
defendant's criminal intent does not transfer to the unintended victim
if the crime was actually committed against the intended victim. See,
e.g., Ford v. State, 625 A.2d 984, 997-98 (Md. 1993); but see Poe v.
State, 671 A.2d 501, 530 (Md. 1996) (applying transferred intent
doctrine where A shot at and hit B, and bullet went through B and
killed C, to permit prosecution of defendant for attempted murder of B
and murder of C; court refused to follow Ford ``because there is a
death and the doctrine is necessary to impose criminal liability for
the murder of the unintended victim in addition to the attempted murder
of the intended victim'').
\65\ The felony murder rule operates in similar manner, holding the
perpetrator of a felony liable for death that results during the
commission of the felony, even where that particular felon may not have
intended or even participated directly in the killing. The relevant
state of mind is the state of mind as to the commission of the
underlying felony, not the killing that occurs subsequently. See United
States v. Nichols, 169 F.3d 1255 (10th Cir. 1999); United States v.
Tham, 118 F.3d 1501 (11th Cir. 1997); Nesbitt v. Hopkins, 907 F. Supp.
1317 (D. Neb. 1995).
---------------------------------------------------------------------------
H.R. 1997 contains one exception to this general rule. In
cases in which the prosecution proves that an individual
committed one of the predicate violent crimes against a
pregnant woman, with the intent to kill the unborn child, that
individual shall be punished as provided under Federal law for
intentionally killing or attempting to kill a human being. The
bill thus ensures that those who engage in violent Federal
crimes against pregnant women, with the intent to kill their
unborn children, are subject to more severe punishment than
those who do not act with the intent to kill.
In short, H.R. 1997 does not lack a criminal intent
requirement.\66\ In situations in which the defendant kills or
injures an unborn child during the commission of a Federal
crime of violence against a pregnant woman, the mens rea
requirement is satisfied because the criminal intent directed
toward the mother transfers to the unborn child in accordance
with traditional common law principles. If the defendant
commits that violent crime against the pregnant woman with the
intent to kill the unborn child, that intent itself satisfies
the mens rea requirement needed to impose criminal liability
upon the defendant for killing or injuring the unborn child.
---------------------------------------------------------------------------
\66\ The bill does not, therefore, conflict with the notion that
criminal statutes lacking a mens rea element are disfavored. See
Liparota v. United States, 471 U.S. 419, 426 (1985).
---------------------------------------------------------------------------
Constitutional Authority for H.R. 1997
Congress has the constitutional authority to enact H.R.
1997 because the bill does not extend Congress's reach to
prohibit any conduct that does not currently violate Federal
law. No conduct that is currently free of regulation will
become regulated by H.R. 1997.\67\
---------------------------------------------------------------------------
\67\ See The Unborn Victims of Violence Act of 2003: Hearings on
H.R. 1997 Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 108th Cong. (2003) (statement of Professor Gerard V.
Bradley, Notre Dame Law School); The Unborn Victims of Violence Act of
2001: Hearings on H.R. 503 Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 107th Cong. (2001) (statement of
Professor Richard Myers, Ave Maria Law School); The Unborn Victims of
Violence Act of 1999: Hearings on H.R. 2436 Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 106th Cong. (1999)
(statement of Professor Gerard V. Bradley, Notre Dame Law School).
---------------------------------------------------------------------------
Instead, H.R. 1997 merely provides an additional offense
and consequent punishment when conduct constituting one of the
already illegal predicate Federal offenses has the additional
effect of injuring or killing an unborn child. Therefore, (with
one qualification, discussed below) if there is any question
regarding the constitutionality of the Act's reach, that
question generally pertains to the constitutionality of the
predicate offense, not H.R. 1997.\68\
---------------------------------------------------------------------------
\68\ See id.; see also The Unborn Victims of Violence Act of 1999:
Hearings on H.R. 2436 Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary, 106th Cong. (1999) (statement of
Professor Hadley Arkes, Ney Professor of Jurisprudence and American
Institutions, Amherst College) (same).
---------------------------------------------------------------------------
The one qualification to this general conclusion relates to
situations in which Federal jurisdiction is based upon the
identity of the particular victim, such as the President,
cabinet members, Members of Congress, and other government
officials. In those situations, the constitutional authority
for punishing offenses against such individuals extends to
offenses against the unborn children of those victims because
it is the discharge of Federal functions, not the identity of
the persons as such, which grounds Federal jurisdiction in such
cases.\69\
---------------------------------------------------------------------------
\69\ See Statement of Professor Richard Myers, supra; Statement of
Professor Gerard V. Bradley, supra.
---------------------------------------------------------------------------
In other words, protection of Federal officers and jurors
is justified by the national interest in protecting the
functions that Federal officers and jurors perform. And those
functions are threatened by assaults upon the person of those
officers and jurors, as well as by threats to them and to their
families.\70\ Thus, it is clearly constitutional to extend
Federal protection to the entire families of Federal officers
and jurors in order to ensure that nothing distracts them or
causes them to neglect their duties. That is, it is within
Congress's power to determine that there is a distinct,
punishable harm to the discharge of federally imposed duties
where the unborn child or any other immediate family member of
a protectable person is harmed or killed.\71\ And that is
precisely the rationale behind 18 U.S.C. Sec. 115, which
prohibits assaulting, murdering, or kidnapping members of the
immediate family of United States officials (including Members
of Congress) and law enforcement officers.
---------------------------------------------------------------------------
\70\ See id.
\71\ See id.
---------------------------------------------------------------------------
H.R. 1997 and Abortion Rights
H.R. 1997 does not affect, nor in any way interfere with, a
woman's right to abort a pregnancy. Indeed, the bill clearly
states that it does not apply to ``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.'' H.R.
1997, 108th Congress (1st Sess. 2003), Sec. 2(c)(1). Similarly,
the bill also clearly states that it does not permit
prosecution ``of any woman with respect to her unborn child.''
H.R. 1997, 108th Congress (1st Sess. 2003), Sec. 2(c)(3).
Nor is there anything in Roe v. Wade that prevents Congress
from recognizing the lives of unborn children outside the
parameters of the right to abortion specifically drawn in that
case.\72\ Indeed, in recognizing a woman's right to terminate
her pregnancy, the Roe Court explicitly stated that it was not
resolving ``the difficult question of when life begins,'' \73\
because ``the judiciary, at this point in the development of
man's knowledge, is not in a position to speculate as to the
answer.'' \74\ What the Court held was that the government
could not ``override the rights of the pregnant woman'' to
choose to terminate her pregnancy ``by adopting one theory'' of
when life begins.\75\ In other words, the Court concluded that
unborn children could not be considered ``persons in the whole
sense,'' \76\ for purposes of abortion. However, unborn
children can be recognized as persons for purposes other than
abortion, such as inheritance and tort injury, purposes which
the Roe Court itself recognized as legitimate.\77\
---------------------------------------------------------------------------
\72\ See Statement of Professor Richard Myers, supra; Statement of
Professor Gerard V. Bradley, supra; see also McCavitt, supra note 15,
at 639 (concluding that Roe ``should not apply to non-consensual acts
by third parties and should not be used as a bar to judicial or
statutory sanctions for criminal acts of third parties'').
\73\ 410 U.S. at 159.
\74\ Id.
\75\ See id. at 162.
\76\ Id.
\77\ See id.
---------------------------------------------------------------------------
The Supreme Court explicitly confirmed this understanding
of Roe in Webster v. Reproductive Health Servs.\78\ In that
case, the state of Missouri had enacted a statute which stated
that the ``[t]he life of each human being begins at
conception,'' and that ``unborn children have protectable
interests in life, health, and well-being.'' \79\ The United
States Court of Appeals for the Eighth Circuit struck down the
law, holding that Missouri had ``impermissibl[y]'' adopted a
``theory of when life begins.'' \80\ The Supreme Court reversed
this portion of the Eighth Circuit's decision, however, stating
that the Court's own decisions mean ``only that a State could
not `justify' an abortion regulation otherwise invalid under
Roe v. Wade on the ground that it embodied the State's view
about when life begins.'' \81\ Therefore, Congress is perfectly
free, as was the State of Missouri, to enforce its conception
of human life outside of the parameters of Roe. Since H.R. 1997
in no way interferes with nor restricts the abortion right
articulated in Roe, the Act is clearly constitutional.
---------------------------------------------------------------------------
\78\ 492 U.S. 490 (1989).
\79\ Id. at 501.
\80\ Reproductive Health Services v. Webster, 851 F.2d 1071, 1076
(8th Cir. 1988).
\81\ 492 U.S. at 506 (emphasis added).
---------------------------------------------------------------------------
Courts addressing the constitutionality of State laws that
punish killing or injuring unborn children have spoken clearly
to the lack of merit in the argument that such laws violate Roe
v. Wade, and as a result have consistently upheld those laws in
the face of constitutional challenges.\82\ In State v.
Coleman,\83\ for example, the Ohio Court of Appeals held that
``Roe protects a woman's constitutional right. It does not
protect a third-party's unilateral destruction of a fetus.''
\84\ In State v. Holcomb,\85\ the Missouri Court of Appeals
stated that ``[t]he fact that a mother of a pre-born child may
have been granted certain legal rights to terminate the
pregnancy does not preclude the prosecution of a third party
for murder in the case of a killing of a child not consented to
by the mother.'' \86\ Similarly, in State v. Merrill,\87\ the
Minnesota Supreme Court held that ``Roe v. Wade protects the
woman's right of choice; it does not protect, much less confer
on an assailant, a third-party unilateral right to destroy the
fetus.'' \88\
---------------------------------------------------------------------------
\82\ See decisions in California, People v. Davis, 872 P.2d 591
(Cal. 1994); Georgia, Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987),
Brinkley v. State, 322 S.E.2d 49 (Ga. 1984) (vagueness and due process
challenge); Illinois, U.S. ex rel. Ford v. Ahitow, 888 F.Supp. 909
(C.D.Ill. 1995), 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), 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); Louisiana, State v. Smith, 676
So.2d 1068 (La. 1996), rehearing denied, 679 So.2d 380 (La. 1996)
(regarding double jeopardy); Minnesota, State v. Merrill, 450 N.W.2d
318 (Minn. 1990), cert. denied, 496 U.S. 931 (1990); State v. Bauer,
471 N.W.2d 363 (Minn. App. 1991) (regarding the establishment clause);
Missouri, Webster v. Reproductive Health Services, 492 U.S. 490, State
v. Knapp, 843 S.W. 2nd (Mo. en banc) (1992) (holding that the
definition of ``person'' in this law is applicable to other statutes,
including at least the State's involuntary manslaughter statute);
Pennsylvania, Commonwealth of Pennsylvania v. Corrine D. Wilcott, No.
2426 A & B of 2002 (Court of Common Pleas of Erie County, Pennsylvania,
Criminal Division) (rejecting challenges that Pennsylvania Crimes
Against Unborn Children Act is unconstitutionally vague, violates U.S.
Supreme Court abortion cases, violates equal protection clause, and
conflicts with State tort law on definition of ``person. '');
Wisconsin, State v. Black, 526 N.W.2d 132 (Wis. 1994) (due process
challenge).
\83\ 705 N.E.2d 419 (Ohio Ct. App. 1997).
\84\ Id. at 421.
\85\ 956 S.W.2d 286 (Mo. Ct. App. 1997).
\86\ Id. at 291. See also People v. Ford, 581 N.E.2d 1189, 1199
(Ill. App. Ct. 1991) (``Clearly, a pregnant woman who chooses to
terminate her pregnancy and the defendant who assaults a pregnant
woman, causing the death of her fetus, are not similarly situated.'')
\87\ 450 N.W.2d 318 (Minn. 1990).
\88\ See id. at 322.
---------------------------------------------------------------------------
In People v. Davis,\89\ the California Supreme Court held
that ``Roe v. Wade principles are inapplicable to a statute . .
. that criminalizes the killing of a fetus without the mother's
consent.'' \90\ The United States Court of Appeals for the
Eleventh Circuit echoed that sentiment in Smith v. Newsome,\91\
holding that Roe v. Wade was ``immaterial . . . to whether a
State can prohibit the destruction of a fetus'' by a third-
party.\92\ Legal scholars have reached similar conclusions.\93\
---------------------------------------------------------------------------
\89\ 872 P.2d 591 (Cal. 1994).
\90\ Id. at 597.
\91\ 815 F.2d 1386 (11th Cir. 1987).
\92\ See id. at 1388.
\93\ See, e.g., Statement of Professor Richard Myers, supra;
Statement of Professor Gerard V. Bradley, supra; Jeffrey A. Parness,
Crimes Against the Unborn: Protecting and Respecting the Potentiality
of Human Life, 22 Harv. J. on Legis. 97, 144 (1985) (``The Roe decision
. . . forbids the State's protection of the unborn's interests only
when these interests conflict with the constitutional rights of the
prospective parent. The Court did not rule that the unborn's interests
could not be recognized in situations where there was no conflict.'').
---------------------------------------------------------------------------
In short, H.R. 1997 clearly does not violate Roe v. Wade
nor its progeny. The Act specifically exempts abortion-related
conduct from prosecution and the protection it affords to
unborn children does not in any way interfere with or restrict
a woman's right to terminate her pregnancy.
Use of the Term ``Unborn Child''
Opponents of H.R. 1997 have also argued that the use of the
term ``unborn child'' is ``designed to inflame'' and may, in
the words of those dissenting from the Judiciary Committee
report during the 106th Congress, ``result in a major collision
between the rights of the mother and the rights of'' the unborn
child.\94\ This objection belies the widespread use of the term
``unborn child'' in the decisions of the United States Supreme
Court and the United States Courts of Appeals, in State
statutes and court decisions, and even in the legal writings of
abortion advocates.
---------------------------------------------------------------------------
\94\ H.R. Rep. No. 106-332, at 31 n.2 (1999).
---------------------------------------------------------------------------
The use of the term ``unborn child'' by the Supreme Court
can be illustrated by reference to Roe v. Wade \95\ itself, in
which Justice Blackman used the term ``unborn children'' as
synonymous with ``fetuses.'' Justice Blackman also used the
term ``unborn child'' in Doe v. Bolton,\96\ the companion case
to Roe in which the Court struck down Georgia's abortion
statute.
---------------------------------------------------------------------------
\95\ 410 U.S. 113 (1973).
\96\ 410 U.S. at 179.
---------------------------------------------------------------------------
The Court has also used the term ``unborn child'' outside
of the abortion context. In Burns v. Alcala,\97\ for example,
the Court held that ``unborn children'' are not ``dependent
children'' for purposes of obtaining aid under the Aid to
Families with Dependent Children (``AFDC'') program. Not only
did Justice Powell use the term ``unborn child'' in the
majority opinion in Burns, but Justice Thurgood Marshall
dissented in that case and argued that ``unborn children''
should be covered as ``dependent children'' under AFDC. Surely
the opponents of H.R. 1997 would not seriously contend that
Justice Marshall--a staunch defender of abortion rights--was
putting abortion rights at risk by arguing that ``unborn
children'' should be recognized under a Federal statute.
---------------------------------------------------------------------------
\97\ 420 U.S. 575 (1975).
---------------------------------------------------------------------------
There are also other Supreme Court decisions that use the
term ``unborn child'' as synonymous with ``fetus,'' including
City of Akron v. Akron Center for Reproductive Health,\98\
Webster v. Reproductive Health Services,\99\ and International
Union v. Johnson Controls.\100\ Additionally, there are so many
decisions by the United States Courts of Appeals using the term
``unborn child'' that they cannot be fully discussed here.\101\
---------------------------------------------------------------------------
\98\ 462 U.S. 416 (1983).
\99\ 492 U.S. 490 (1989).
\100\ 499 U.S. 187 (1991).
\101\ See., e.g., Alexander v. Whitman, 114 F.3d 1392 (3d Cir.
1997); Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995); Smith v.
Newsome, 815 F.2d 1386 (11th Cir. 1987).
---------------------------------------------------------------------------
There are also at least nineteen State criminal statutes
similar to H.R. 1997 that currently use the term ``unborn
child'' to refer to a fetus.\102\ Statutes such as these have
been consistently upheld by the courts in the face of
constitutional challenges.\103\
---------------------------------------------------------------------------
\102\ See, e.g., Ariz. Rev. Stat. Sec. 13-1103(A)(5); Ark. Code
Ann. Sec. 5-1-102(13)(B)(i)(a); Fla. Stat. Ann. Sec. 782.09; Ga. Code
Ann. Sec. Sec. 16-5-80, 40-6-393.1, 52-7-12.3; 720 Ill. Comp. Stat.
Ann. Sec. Sec. 5/9-1.2, 5/9-2.1, 5/0-3.2; La. Rev. Stat. Ann.
Sec. Sec. 14:32.5-14-32.8; Mich. Stat. Ann. Sec. 28.555; Minn. Stat.
Ann. Sec. Sec. 609.2661-609.2665, 609.267-609.2672; Miss. Code Ann.
Sec. 97-3-37; Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020; Nev.
Rev. Stat. 200.210; N.D. Cent. Code Sec. Sec. 12.1-17.1-05, 12.1-17-
06;Okla. Stat. Ann. tit. 21, Sec. 713; Pa. Cons. Stat. Ann.
Sec. Sec. 2601-2609; R.I. Gen. Laws Sec. 11-22-5; S.D. Codified Laws
Ann. Sec. Sec. 22-16-1, 22-16-1.1, 22-16-20; Utah Code Ann. Sec. 76-5-
201; Wash. Rev. Code Ann. Sec. 9A.32.060; Wis. Stat. Ann.
Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06,
940.08, 940.09, 940.10.
\103\ See, e.g., State v. Coleman, 705 N.E.2d 419, 421 (Ohio Ct.
App. 1997); State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990); People
v. Davis, 872 P.2d 591, 597 (Cal. 1994); and Smith v. Newsome, 815 F.2d
1386, 1388 (11th Cir. 1987).
---------------------------------------------------------------------------
Even feminist abortion rights advocates such as Catharine
MacKinnon have used the term ``unborn child'' as synonymous
with ``fetus.'' In an article that was published in the Yale
Law Journal entitled Reflections on Sex Equality Under the
Law,\104\ Professor MacKinnon conceded that a ``fetus is a
human form of life'' that ``is alive,'' \105\ and opined that
``[m]any woman have abortions as a desperate act of love for
their unborn children.'' \106\
---------------------------------------------------------------------------
\104\ 100 Yale L.J. 1281 (1991).
\105\ Id. at 1316.
\106\ Id. at 1318.
---------------------------------------------------------------------------
Objections to the use of the term ``unborn child'' in H.R.
1997 are without merit. The term ``unborn child'' has been
widely used and accepted by judges, legislators, and legal
scholars, and has withstood challenges in the courts.

CONCLUSION

H.R. 1997 is necessary legislation that is carefully
crafted to address the harm done when violent crimes are
committed against pregnant women and their unborn children. The
legislation remedies the defects of existing Federal law by
rejecting the antiquated and obsolete common law ``born alive''
rule and ensuring just punishment for those who commit these
heinous crimes of violence. Moreover, H.R. 1997 relies on the
well-established doctrine of transferred intent in supplying
the mental element necessary for prosecution, and it carefully
excludes from its purview those acts committed by the mother or
a third party that are otherwise protected by Roe v. Wade and
its progeny. By recognizing the unique harms done to women and
unborn children, and by mending the insufficiencies of current
Federal law, H.R. 1997 serves vital national interests by
extending the criminal law's protections to all human life.

Hearings

The Committee's Subcommittee on the Constitution held 1 day
of hearings on H.R. 1997 on July 8, 2003. Testimony was
received from the following witnesses: Tracy Marciniak, mother
of victim, Wisconsin; Juley Fulcher, Director of Public Policy,
National Coalition Against Domestic Violence; Serrin M. Foster,
President, Feminists for Life; and Professor Gerard V. Bradley,
University of Notre Dame School of Law.

Committee Consideration

On July 15, 2003, the Subcommittee on the Constitution met
in open session and ordered favorably reported the bill H.R.
1997, without amendment, by a voice vote, a quorum being
present. On January 21, 2004, the Committee met in open session
and ordered favorably reported the bill, H.R. 1997, with an
amendment, by a recorded vote 20 to 13, a quorum being present.

Vote of the Committee

In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following recorded votes occurred during the Committee
consideration of H.R. 1997.
1. An amendment was offered by Ms. Lofgren that would have
substituted for the bill an enhanced penalty for ``interruption
to the normal course of the pregnancy resulting in prenatal
injury (including termination of the pregnancy).'' The
amendment was defeated by a rollcall vote of 11 yeas-19 nays.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn..................................................
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 11 19
----------------------------------------------------------------------------------------------------------------

2. An amendment was offered by Ms. Baldwin that would have
added language to the bill stating that it shall not be
construed as affecting a woman's right to choose an abortion.
The amendment was defeated by a rollcall vote of 11 yeas to 20
nays.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 11 20
----------------------------------------------------------------------------------------------------------------

3. Motion to report H.R. 1997 as amended, by a rollcall
vote of 20 yeas to 13 nays was agreed to.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 20 13
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the Unborn Victims of Violence Act of 2003, H.R.
1997, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, January 28, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1997, the ``Unborn
Victims of Violence Act of 2003.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas Holtz-Eakin.

Enclosure

cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1997--Unborn Victims of Violence Act of 2003.
CBO estimates that implementing H.R. 1997 would not result
in any significant cost to the Federal Government. Enactment of
H.R. 1997 could affect direct spending and receipts, but CBO
estimates that any such effects would not be significant. H.R.
1997 contains no intergovernmental or private-sector mandates
as defined in the Unfunded Mandates Reform Act and would not
affect the budgets of State, local, or tribal governments.
H.R. 1997 would establish a new Federal crime for the
injury or death of an unborn child that results from certain
offenses committed against the mother. Violators would be
subject to imprisonment and fines. As a result, the Federal
Government would be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that any increase
in Federal costs for law enforcement, court proceedings, or
prison operations would not be significant, however, because of
the small number of cases likely to be involved. Any such
additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 1997
could be subject to criminal fines, the Federal Government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would be negligible.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.

Performance Goals and Objectives

H.R. 1997 does not authorize funding. Therefore, clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives is inapplicable.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, Section 8, of the Constitution.

Section-by-Section Analysis and Discussion

Section 1. Short Title. This section provides that the
title of the Act is the Unborn Victims of Violence Act of 2003.
The Committee on the Judiciary adopted a technical amendment
changing the year to 2004.
Section 2. Protection of Unborn Children. Section 2(a)
amends title 18 of the United States Code by inserting a new
Section 1841. These provisions provide the substantive
component of the Act.
Section 1841(a)(1) provides that where one engages in
violent conduct against a pregnant woman, in violation of one
or more of the Federal criminal laws listed in subsection (b),
the perpetrator shall be guilty of a separate criminal offense
if an unborn child is killed or injured in the commission
thereof. This subsection relies on the well-established
doctrine of transferred intent in providing the mens rea
element for the crime against the unborn child. That is, the
criminal intent directed toward the unborn child's mother is
transferred to the unborn child. This subsection further
eliminates the obsolete common law born-alive rule, replacing
it with widely accepted modern jurisprudence recognizing unborn
children as victims of violent crime.
Section 1841(a)(2)(A) establishes the punishment for the
separate offense committed against the unborn child. This
subsection provides that when the death of, or bodily injury
to, the unborn child results from the commission of an offense
listed in subsection (b), the defendant shall receive the same
punishment he or she would have received under Federal law had
the same bodily injury or death resulted to the unborn child's
mother.
Section 1841(a)(2)(B) provides that an offense under this
section does not require proof that the defendant knew or
should have known that the victim of the underlying offense was
pregnant, or that the defendant intended to cause the death or
bodily injury to the unborn child.
Section 1841(a)(2)(C) provides that if the defendant
engaged in the conduct against the pregnant woman and thereby
intentionally killed or attempted to kill the unborn child, the
defendant shall be punished as provided under Federal law for
killing or attempting to kill another human being. Section
1841(a)(2)(D) states that notwithstanding any other provision
of Federal law, the death penalty shall not be imposed for an
offense under this section.
Section 1841(b) lists the various provisions of the United
States Code that serve as predicate offenses for the offense
against the unborn child. Subsection (1) lists provisions of
title 18; subsection (2) lists section 408(e) of the Controlled
Substances Act of 1970, 21 U.S.C. 848; and subsection (3) lists
section 202 of the Atomic Energy Act of 1954, 42 U.S.C. 2283.
If the defendant engages in the violent conduct prohibited by
these provisions, and his conduct results in death or bodily
injury to an unborn child, he is guilty of a separate offense,
as provided in Section 2(a).
Section 1841(c) prohibits the United States from
prosecuting any of the following individuals for the death or
injury of an unborn child: under subsection (1), any person for
conduct relating to a legally consensual abortion; under
subsection (2), any person who provides medical treatment to a
pregnant woman or her unborn child; and, under subsection (3),
the pregnant woman herself. These provisions ensure that this
legislation does not implicate nor interfere with the right to
an abortion established by Roe v. Wade, 410 U.S. 113 (1973) and
its progeny.
Section 1841(d) defines ``unborn child'' as ``a child in
utero,'' a definition consistent with those State laws that
courts have consistently upheld. ``Child in utero'' or ``child,
who is in utero'' are, in turn, defined as ``a member of the
species homo sapiens, at any stage of development, who is
carried in the womb.''
Section 2(b) of the Act is a clerical amendment, inserting
``1841'' after the item relating to chapter 90 in title 18 of
the United States Code.
Section 3. Military Justice System. This section amends the
Uniform Code of Military Justice to provide an additional
offense for injuring or killing an unborn child during the
commission of certain violent crimes punishable under the
Uniform Code of Military Justice. Pursuant to Rule X of the
Rules of the House of Representatives, this bill was referred
secondarily to the Committee on Armed Services, because the
Committee on the Judiciary does not have jurisdiction over this
section of the bill.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I--CRIMES

* * * * * * *

Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
90A. Protection of unborn children............................. 1841
* * * * * * *

CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

Sec.
1841. Protection of unborn children.

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.

* * * * * * *

----------

TITLE 10, UNITED STATES CODE

* * * * * * *
Subtitle A--General Military Law

PART I--ORGANIZATION AND GENERAL MILITARY POWERS

* * * * * * *

CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE

* * * * * * *

SUBCHAPTER X--PUNITIVE ARTICLES

Sec.

Art.

877.

77.

Principals.

* * * * * * *

919a.

119a.

Protection of unborn children.

* * * * * * *

Sec. 919a. Art. 119a. Protection of unborn children

(a)(1) Any person subject to this chapter who 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 of title 18) 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 this chapter 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 accused 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 880, 918, and 919(a) of
this title (articles 80, 118, and 119(a)) 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
sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928
of this title (articles 118, 119(a), 119(b)(2), 120(a), 122,
124, 126, and 128).
(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) 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.

* * * * * * *

Committee Jurisdiction Letters

Markup Transcript

BUSINESS MEETING

WEDNESDAY, JANUARY 21, 2004

House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
[Intervening business.]
Chairman Sensenbrenner. The next item on the agenda is the
adoption of H.R. 1997, the ``Unborn Victims of Violence Act of
2003.'' The Chair recognizes the gentleman from Ohio, Mr.
Chabot, the Chairman of the Subcommittee on the Constitution.
[The bill, H.R. 1997, follows:]

Mr. Chabot. Mr. Chairman, the Subcommittee on the
Constitution reports favorably the bill H.R. 1997, the ``Unborn
Victims of Violence Act,'' and moves its favorable
recommendation to the full House.
Chairman Sensenbrenner. Without objection, H.R. 1997 will
be read and open for amendment at any point. The Chair
recognizes the gentleman from Ohio, Mr. Chabot, to strike the
last word.
Mr. Chabot. Thank you, Mr. Chairman.
Tragically, recent studies in Maryland, North Carolina, New
York City, and Illinois indicate that homicide is the leading
cause of death of pregnant women in those parts of the country.
Those homicides are often inspired by the desire to kill a
woman's unborn child. Yet, due to the gaps in the Federal
criminal law, an unborn child can be killed or injured during
the commission of a violent Federal crime without any legal
consequences. These gaps are appalling to the American people.
Recent polls have shown that upwards of 80 percent of
registered voters, including 69 percent of registered voters
who describe themselves as pro-choice, believe the prosecutors
should be able to separately charge the violent attacker of a
pregnant woman that kills her unborn child. Yet today, for
example, if a man stalks his pregnant wife across State lines
and attacks her, injuring her and killing their unborn child,
that man could not be prosecuted under Federal law for the loss
of the baby's life.
The Unborn Victims of Violence Act fills these glaring gaps
in the Federal law with a simple expression of a basic
understanding; namely, that the loss of an unborn child to an
act of violence deserves separate recognition under Federal
law. This bill provides that if an unborn child is injured or
killed during the commission of crimes of violence already
defined under Federal law, prosecutors can bring two charges,
one on behalf of the mother, the other on behalf of the unborn
victim. H.R. 1997 recognizes that the loss of an unborn child
at any stage of development is a unique and separate loss both
to society and to the mother who carried and loved that child.
This bill for the first time under Federal law treats an unborn
victim of violence as something more than just a torn spleen or
a bruised appendix or other physical injuries incurred during
the course of a violent attack on an expecting mother that
might warrant enhanced penalties but not separate charges under
Federal law. H.R. 1997 treats such unborn victims with the
respect and dignity under the law their loving mothers and the
American people rightfully demand for them. We must all ask
ourselves, is the death of an unborn child the same thing as a
broken bone, for example? If the answer is, it is not, it is
not the same thing, then we should all look very closely at
passing this particular piece of legislation.
Indeed, the House of Representatives in the 106th Congress
by a unanimous 417 to 0 vote passed the Innocent Child
Protection Act, a bill only two sentences long that banned the
Federal execution of a woman while she carries a child in
utero. A child in utero is defined in that bill exactly to the
word as it is in this one; namely as, ``a member of the species
homo sapiens at any stage of development who is carried in the
womb.'' A vote for the Innocent Child Protection Act cannot be
defended on the grounds that the execution of a woman's unborn
child would constitute an additional harm to the woman, because
a woman who is executed faces the ultimate and final punishment
of death. Rather, the only logical rationale for the support of
that legislation was to prevent the killing of an innocent
unborn child. Fourteen of the 16 Democrats on this Committee
today voted for the Innocent Child Protection Act, and the
remaining two were not in office during the 106th Congress.
Clearly, H.R. 1997 should logically have similarly overwhelming
bipartisan support.
The legislation before us now requires us to reflect on the
goals and purposes of the criminal law. Ultimately, the
criminal law is not a schedule of punishment; it is an
expression of society's values. Anything less than the
legislation before us today simply does not resonate with
society's sense of justice.
This legislation has been called merely symbolic by its
opponents, but I wonder how many women in America would view
the loss of their unborn child through a violent means as
merely symbolic. Certainly not Tracy Marciniak, whose unborn
child was murdered by her husband. She told the Constitution
Subcommittee referring to the substitute amendment that will be
offered today, quote, please don't tell me that my son was not
a real murder victim, and please remember Zachariah's name and
face when you vote on a substitute amendment that refuses to
allow a separate charge for the killing of a wanted unborn
child. Shawana Pace, whose unborn child was brutally murdered
by three hired hit men, has also testified that, quote, it
seems to me that any Congressman who votes for the one victim
amendment is really saying that nobody died that night, and
that is a lie, unquote.
Indeed, because unborn victims are distinct victims, the
Unborn Victims of Violence Act is also referred to as Laci and
Conner's Law for Laci and Conner Peterson, two recent victims
of terrible violence. This bill protects the right of a mother
to choose to bring her wanted and loved child to term safe from
the violent hands of criminals who would brutally deny her that
right. This bill, however, has nothing to do with abortion.
Mr. Chairman, I would ask for an additional minute.
Chairman Sensenbrenner. Without objection.
Mr. Chabot. Thank you.
That fact could not be expressed more clearly in the
legislation which explicitly excludes abortion, and the Supreme
Court in Webster v. Reproductive Health Services has already
refused to strike down the State of Missouri's unborn victims
of violence law, stating that it, quote, does not by its terms
regulate abortion, unquote.
Before and since the Webster decision, every single unborn
victim's law passed by State legislators that has been
challenged has been upheld. Opponents of the legislation before
us today claim it will open the door to all manner of terrible
imagined future legislation. But the only door this legislation
opens is the door to a distinct room in the edifice of the
Federal Code in which unborn victims of violence can be granted
the distinct respect they are owed. Just as expecting mothers
reserve space in their home for a wanted and loved unborn
child, we in Congress should reserve for unborn victims of
violence a distinct place under the protective shield of the
criminal law.
Chairman Sensenbrenner. The time of the gentleman has once
again expired.
Mr. Chabot. I ask support for the legislation.
Chairman Sensenbrenner. Is the gentlewoman from California
going to make the Democratic opening statement?
Ms. Lofgren. Yes.
Chairman Sensenbrenner. She is recognized for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
Acts of domestic violence against women, especially
pregnant women, are tragic and should be punished
appropriately. However, we do not support the Unborn Victims of
Violence Act. We believe that the bill as drafted will diminish
rather than enhance the rights of women and will actually do
little to protect pregnant women from violence. The bill would
amend the Federal Criminal Code and the Uniform Code of
Military Justice to create a new Federal crime for bodily
injury or death of an unborn child and defines a member of the
species homo sapiens at any stage of development who is carried
in the womb, creates an offense that would occur when one or
more enumerated Federal crimes have been committed in the,
quote, death or bodily injury to the fetus have occurred.
You know, the result of this drafting would be a mish-mash
of varying penalties that would inexplicably change the
potential sentence for the attacker depending on the status of
the victim, because the various penalties in the code vary
wildly, depending on whether the jurisdiction is because the
individual is a postal worker or a Member of Congress or
whatever the other jurisdictional reach is. But the true
concern is that the real rationale we believe behind this bill
is not to protect pregnant women and to allow pregnant women to
be secure and to allow them to have their pregnancies come to
term and to give birth to much wanted children; it has in fact
defined a zygote, a four or six cells as a person under law to
undercut Roe v. Wade. We believe that is why groups that are
really concerned about protecting a woman's right to choose and
who are opposed to domestic violence also oppose this bill,
including the National Abortion and Reproductive Rights Action
League, Planned Parenthood, the National Women's Law Center,
the National Partnership for Women and Family, the Center for
Reproductive Law and Policy, the American Civil Liberties
Union, the Feminist Majority, the American Association of
University Women, the National Family Planning and Reproductive
Health Association, the American Medical Women's Association,
the National Coalition Against Domestic Violence, the National
Council of Jewish Women, the National Organization for Women,
Physicians for Reproductive Choice and Health, and People for
the American Way.
We will have at the appropriate time a substitute that
fully protects pregnant women who are assaulted. We believe
that the right of women to carry their pregnancy to term and to
give birth is indeed a valuable and important one, that we
should make the strongest possible penalties for those who
would assault pregnant women and prevent a pregnancy from going
to term. We think it is regrettable that this effort to protect
pregnant women has instead been caught up in the long and aged
old fight over abortion. We understand that there are strong
differences of opinion in this body and in the country about a
woman's right to choose, but we think it is regrettable that
that provision over a woman's rights to choose has been dragged
into this discussion which is about allowing women to be free
from violence. That should unite us all. It should not be tied
up in the fight over choice. And with that, I yield back the
balance of my time.
Chairman Sensenbrenner. Without objection, all Members'
opening statements will appear in the record at this time. Are
there amendments?
Mr. Watt. Mr. Chairman.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. Does the gentlewoman from
California have an amendment?
Ms. Lofgren. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 1997 offered by Ms. Lofgren.
Strike Section 1 through Section 2, and insert the following:
Section 1, short title. This act may be cited as the Motherhood
Protection Act of 2004. Section 2. Crimes against a woman----
[The amendment follows:]

Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentlewoman from California is
recognized for 5 minutes.
Ms. Lofgren. Mr. Chairman, this amendment is simple. It
proposes to substitute sections 1 and 2 of the bill, and only
those sections. We don't seek to change section 3 as I believe
that would raise a germaneness concern.
This amendment recognizes that there are existing crimes in
Federal law that protect women from violence such as violent
assault. Further, this amendment recognizes that when such
crimes hurt a pregnant woman and cause her to miscarry there is
an additional and very serious harm to that woman. This
amendment creates a second separate offense with severe and
consistent penalties for causing this additional harm, up to a
life sentence.
Why is it important to pass this amendment for such a crime
and to enhance the penalty? All of us here on the Committee
have had exciting moments and some fame or notoriety, but I
have got to tell you that the absolute most exciting moment of
my entire life was when I gave birth to my children. And it is
a moment that--they are now 19 and 21, but I can remember as if
it was yesterday. It is one of the most enriching and exciting
experiences of one's life. And for anyone who has had a
miscarriage, as I have had, you know the disappointment, really
the devastation that comes with that loss. There is nothing
really larger than to lose a pregnancy and to not have the
child that you thought you would have. It is something that you
really never get over. But when that is something that really
comes from the hand of God rather than the hand of an assault,
you make your peace with it. To imagine that that loss would be
caused by the violence of another is really unbelievable and
really deserves the very largest penalty that we can possibly
devise, because to deny a woman the opportunity to have her
much desired child is a lifelong sentence. And those who would
assault someone and cause a miscarriage, they deserve a life
sentence, in my judgment, for the harm that they have done.
Now, that is why I have offered this substitute to Ms. Hart's
bill.
If the goal of the criminal law is ever properly vengeance,
then this sort of loss calls out for vengeance. And if the goal
is justice, then the contrast with the proposed penalty for
this grievous injury to a woman where the offense is deemed
worthy of other maximum sentence of life. You can sentence the
accused up to life for exploiting children, for drug
trafficking, for aggravated sexual assault of underaged
children, and many more crimes, so I think a life sentence
really is appropriate.
I offer this amendment that would recognize the crime and
creates a second, separate penalty, and I believe that this
penalty is huge. Unlike the underlying bill, it is consistent.
Ms. Hart's bill would provide for sentences that can go
anywhere from a term of a year to a few years to life. And I
think it is important, especially if the law is about
deterrence in penalties, that anyone who would assault a
pregnant woman should know that they are facing a life
sentence.
Now, my substitute focuses on what is real for American
women. Violence against women is epidemic. And as the Chairman
of the Committee has said, and something--we don't agree on
everything, but we do agree that the most dangerous time to be
a woman in America is when you are pregnant. That is the time
when most assaults, shockingly enough, occur. So it is
important that we have in our law a deterrent for that assault.
I don't think, however, that we should use that violence as an
excuse to cut away at the right of American women to make their
own personal choices about reproduction.
Although the proponents of the bill argue that it has
nothing to do with abortion, in fact it does. Senator Orrin
Hatch, the Chairman of the Senate Judiciary Committee, admitted
on their side of the building in the other body that the
measure would have an impact on abortion law. And he said this,
quote: They say it undermines abortion rights. It does
undermine it, he said, but that is irrelevant. We are concerned
here about a woman and her child. The partisan arguments over
abortion should not stop a bill that protects women and
children.
Well, this amendment allows us to do both. It allows us to
avoid the fight over abortion, to allow a woman's right to make
her own choice to continue in place, but to have the toughest
law possible to protect women against violence and assault, and
to punish those who would do the horrible wrong of denying a
woman her chance to give birth to a healthy child and to enjoy
raising that child throughout her life.
[11 a.m.]
Ms. Lofgren. So I recommend the substitute to those of us
who would like to take a stand against domestic violence, to
stand up for women and protect women.
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Lofgren. I would ask unanimous consent for an
additional minute.
Chairman Sensenbrenner. Without objection.
Ms. Lofgren. I would ask also that we take this issue of
protecting women from violence out of this perennial fight and
recommend this substitute as the easiest way to do that, and I
yield back the balance of my time.
Chairman Sensenbrenner. Mr. Chabot.
Mr. Chabot. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Mr. Chairman, this substitute amendment should
be defeated. The terminology in the substitute amendment is
hopelessly confusing, and if adopted, it would almost certainly
jeopardize any prosecution involving the injuring or killing of
an unborn child during the commission of a violent crime.
I mentioned in my opening statement the tragic case of
Tracy Marciniak. This is a picture of Tracy with her unborn
child. She was attacked by her husband. Tracy survived, but her
unborn child Zachariah did not. There are two victims in that
picture. One victim, Tracy Marciniak, survived; the other,
Zachariah, did not. The law should recognize both.
H.R. 1997 does that; the substitute amendment, in effect,
does not. The substitute amendment provides an enhanced penalty
for interruption to the normal course of the pregnancy
resulting in prenatal injury, including termination of the
pregnancy. The amendment then authorizes greater punishment for
``interruption'' that terminates the pregnancy than it does for
mere interruption of a pregnancy.
What exactly is the difference between an interruption of a
pregnancy and an interruption that terminates the pregnancy?
The substitute does not say. Doesn't any interruption of a
pregnancy necessarily result in the termination of a pregnancy,
or have the supporters of this amendment somehow succeeded in
mastering the science of suspended animation?
By defining an interruption to the normal course of the
pregnancy, the substitute is either science fiction or simply
impossible for Federal prosecutors to decipher and apply. The
substitute amendment appears to operate as a mere sentence
enhancement, authorizing punishment in addition to any penalty
imposed for the predicate offense. That is not right. No
sentencing enhancement can adequately express society's
disapproval for the distinct loss that occurs when a mother's
unborn child is harmed or killed by a violent criminal, a loss
that is both unique and uniquely offensive to both a loving,
expectant mother and to the vast majority of Americans who want
a separate and unique offense under the criminal law.
Indeed, the witnesses we hear from supporting H.R. 1997
have told us they are not Republicans or Democrats. They are
not lawyers. They are people who have lost unborn children to
violence. These are the people who have testified before
Committee, and they want their unborn children treated
appropriately under the law. That is precisely what H.R. 1997
would do for the purposes of Federal law. The substitute would
not.
Sharon Rocha, the mother of Laci Peterson and the
grandmother of unborn victim Connor Peterson, has written,
``The Lofgren proposal would enshrine in law the offensive
concept that such crimes have only a single victim, the
pregnant woman.'' .
Shawana Pace, whose unborn child was brutally murdered by
three hired hitmen, as I mentioned in my opening statement, has
said, ``It seems to me that any Congressman who votes for the
one victim amendment is really saying that nobody died that
night, and that is a lie.'' .
Those who focus this debate on penalties and abstract terms
such as ``harm to a pregnancy'' rather than ``a child''
misunderstand the purposes of criminal law. The criminal law
does not exist only to punish criminals, it exists to lend
dignity to victims, including unborn victims. It is an
expression not only of society's disapproval of certain
conduct, but of its recognition of the victims of such conduct
and the manner in which such victims should be recognized.
Creating a separate offense for harm to an unborn child forces
all of us, including potential criminals, to consider the act
of harming an unborn child as an independent evil.
A Newsweek poll found only 9 percent of those surveyed,
less than 1 in 10 Americans, oppose a separate offense for
killing an unborn child. Those 9 percent of Americans should be
heard, of course, and they have been heard through this
substitute amendment, but they must not win as the law exists
in large part to reflect America's overwhelmingly shared
values, and those shared values support separate charges for
the killing and injuring of wanted unborn children.
This substitute amendment embodies the extreme ideology of
those who are unwilling to recognize the unborn child in the
law in any context. The term ``unborn child'' has been used in
many other cases. There is a legion of cases that could be
referred to. I would urge my colleagues to reject this
amendment and to pass the underlying bill.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The gentlewoman from Wisconsin Ms.
Baldwin.
Ms. Baldwin. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Baldwin. Mr. Chairman, I speak today in support of
Representative Lofgren's amendment. I know we all agree that
violence against women and especially pregnant women is
extremely tragic and should be punished to the full extent of
the law. Unfortunately, the bill that we are considering also
has another agenda. That agenda is to erode and undermine the
Roe v. Wade decision by treating an embryo or fetus at any
stage of development as an individual with extensive legal
rights distinct from the mother.
But if we really want to punish the crimes committed
against pregnant women, we can do it in a way that will not
tangle this issue with the issue of the abortion debate; and
that is exactly what Congresswoman Lofgren's amendment does.
This amendment goes to the heart of the problem by truly
addressing the issues of violence against pregnant women. The
amendment creates a second Federal offense for harm to a
pregnant woman. This amendment imposes the same penalties for
harm to a pregnancy as the Unborn Victims of Violence Act does.
The amendment does this without conferring separate legal
rights to the embryo or fetus.
In past years and still today, I have been a strong and
vocal supporter of the Violence Against Women Act, which has
served in our country to expand protections for women against
callous acts of violence. I believe we are better served by
laws that protect women, pregnant and not pregnant alike, from
violence instead of establishing a whole legal framework to
establish and protect fetal rights.
By switching the focus of the crime to the unborn child, we
are diverting attention from the victimized woman and from the
issue we need to be focused on: violence against women.
I sat in the Wisconsin Legislature when we debated a
similar piece of legislation at the State level, and I was
moved by heart-breaking stories, some of which you have already
heard today. But what is true about this is you truly cannot
harm the unborn child without harming the pregnant woman. In
countless cases, we heard anecdotal testimony that these women
experienced domestic violence for years prior to becoming
pregnant, and they continued through the pregnancy.
We have to be serious about domestic violence. We have to
be serious about it in any circumstance, whether there is a
pregnancy or not. We can prevent these sort of crimes by a
serious focus on domestic violence.
So if we are all sincere in our desire to punish crimes
committed against pregnant women, we should be supportive of
this amendment. Let us abandon this thinly veiled attack on
abortion rights that is called the Unborn Victims of Violence
Act and address the true issue of providing real punishments
for criminals who attack pregnant women and women generally.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The gentlewoman from Pennsylvania
Ms. Hart.
Ms. Hart. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Hart. Mr. Chairman, I oppose the amendment for a number
of the reasons that were stated by Mr. Chabot, but also because
the amendment would be a denial of a long-recognized legal
principle of transferred intent. The bill, as written,
recognizes a separate crime, as is often recognized in law. It
also recognizes the fact that a majority of States have already
adopted legislation similar to what we are proposing on the
Federal level; that is, it recognizes a separate crime.
I am a bit baffled by the opposition and the claims that
this legislation without the amendment denies a crime against
the woman. It does nothing of the sort. Those crimes against
women, whether pregnant or not, are already recognized in law.
Clearly, this Congress has done quite a bit and continues to do
more to fight domestic violence.
The recognition of the crime against the unborn child
advances the cause of fighting domestic violence. At this point
in time, Federal law would recognize a violent crime against
the mother, it would recognize a crime against a born child;
but, unfortunately, does not recognize a crime against an
unborn child.
As was cited by several people in this debate, the unborn
child is often the reason, the motive, for the violence against
the woman. Not recognizing that fact is what would, I think,
perpetrate more domestic violence. This amendment, in my
opinion, does just the opposite of what its sponsor says it
would do. It simply recognizes an extenuating circumstance or
an additional problem regarding the crime against the woman. It
does not recognize what it is: family violence, in many cases.
The other statement I want to share with the Members, some
may recall Walter Dellinger, who is a former Solicitor General
with the Clinton administration. He is now a professor at Duke
University. He is also a strong advocate for a woman's right to
choose abortion. He has stated he sees no major problem with
these fetal homicide laws. To quote him, he does not believe
``they undermine Roe v. Wade. We can decide that fetuses are
deserving of protection without having to make any judgment
that the entity being protected has to have any freestanding
constitutional right that would violate Roe v. Wade.'' He
asked, actually, that these proposals be considered on their
own merit, that they are separate and distinct from any effect
on Roe v. Wade.
Mr. Chairman, I was in the State senate in Pennsylvania
when we passed our fetal homicide law that recognizes a
separate crime, an additional crime, that is against the unborn
child when there is already a crime committed against the
mother. It is clear from the examples we have seen, especially
the Peterson case, that a family suffers a great loss. Not only
does the woman suffer a loss physically when she is attacked,
she suffers an emotional loss, her family suffers an emotional
loss. The loss of the child is real, and the law should
recognize that. It is offensive for us to do anything else.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from North Carolina
Mr. Watt.
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I yield to Congresswoman Lofgren.
Ms. Lofgren. Mr. Chairman, I thank the gentleman for
yielding.
We have been through this discussion on many occasions, and
I am not sure an extended debate rehashing the same points over
and over again every year necessarily adequately informs either
the Committee Members or the public, but I would note just for
clarity's sake that the amendment I have offered does indeed
create a separate offense with penalties that are more severe
and certainly more consistent than the underlying bill.
I would also note that all of us, and I would note that Roe
v. Wade as well, understands that there is a very big
distinction between a situation where you have a fetus at the
9th month and six cells. The problem is no distinction is made
in this bill.
Actually in my bill, which I am offering as a substitute,
there is a recognition that even if the assaulter is unaware of
the situation, if that assaulter, if he assaults a pregnant
woman and she is a month pregnant and she loses that pregnancy,
it is still a loss to her. It is still a loss to her, but we
avoid going into the very serious problem area of overturning
Roe and assigning independent rights under the Constitution to
eight cells.
I think all of us have very strong views on the issue of
choice, whether the Government should decide or whether the
individual woman should decide about reproductive rights, but I
would hope that we could adopt this substitute and come
together to enact vigorous protections for pregnant women who
face assault and who could lose the opportunity to have a
child.
Mr. Chairman, I yield back to the gentleman from North
Carolina.
Mr. Watt. Mr. Chairman, I encourage my colleagues to
support the Lofgren amendment.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Michigan Mr.
Conyers.
Mr. Conyers. Mr. Chairman, I ask unanimous consent to
insert my statement in the record.
Chairman Sensenbrenner. Without objection.
Mr. Conyers. Mr. Chairman and Members of the Committee, I
just observe in some quarters the question is whether this is a
frontal assault on Roe v. Wade, or is it a tempered, measured,
sneaking up on Roe v. Wade? I would like to find out after this
Committee hearing what people think about that, because what we
are doing is we are saying this Supreme Court case,
precariously arrived at a number of years ago, needs to be
revisited for reasons outside of the fact that the people who
want to move forward on it and have never, never thought about
the larger part of the question, the woman's right, the woman's
life, and the choices that she has to make, and as Ms. Lofgren
pointed out, these have to be made early on in the process.
I was away from the hearing a while, but did the term
``murderers'' come up here in this discussion, or are we past
that yet? Because this thing gets very highly emotional. This
is part of a larger cultural war that is going on that cannot
be solved by this kind of a measure that is before us. So what
the gentlewoman from California has done with her substitute
is, to me, to make it a separate crime to violently assault a
pregnant woman which could interrupt or terminate her pregnancy
or injure her fetus. To me that makes perfectly logical sense.
It is rational. It is not soft-headed or muddled thinking. It
is not slipping something in on anybody that may have strong
views one way or the other about the import of Roe v. Wade.
But, come now, it is an open secret that there is a group
in our Government and in amongst our citizenry that have
pledged to get rid of Roe v. Wade by any means necessary. Is
there anybody that does not know that? To me, I take this as
just another step in the battle, and maybe we can get that in,
maybe we can get an ultraconservative or more conservative
justices and judges on the Court, and maybe, whammo, we will
wake up one day, and Roe will be gone. That is a procedure that
I have a lot of trouble with. That is why I support the Lofgren
amendment.
Chairman Sensenbrenner. The question is on agreeing to the
gentlewoman's amendment. Those in favor will say aye.
Those opposed, no.
The noes appear to have it.
Ms. Lofgren. Mr. Chairman, I would ask for a rollcall vote.
Chairman Sensenbrenner. A rollcall vote is ordered. The
question is on agreeing to the amendment offered by the
gentlewoman from California. Those in favor will, as your names
are called, answer aye. Those opposed, no. The Clerk will call
the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
[No response.]
The Clerk. Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Ms. Hart.
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Carter.
Mr. Carter. No.
The Clerk. Mr. Carter, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mrs. Blackburn.
[No response.]
The Clerk. Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Ms. Baldwin.
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
[No response.]
The Clerk. Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the Chamber
who wish to cast or change their vote?
The gentleman from California Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from Alabama Mr.
Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. Are there further Members in the
Chamber who wish to cast or change their vote?
The gentleman from Virginia Mr. Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Chairman Sensenbrenner. Anybody else who wishes to cast or
change their vote? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments?
Ms. Baldwin. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 1997 offered by Mrs. Baldwin.
Page 7, after line 6----
Mr. Chabot. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. The gentleman from Ohio reserves a
point of order.
Without objection, the amendment is considered as read.
[The amendment follows:]

Chairman Sensenbrenner. The gentlewoman from Wisconsin Ms.
Baldwin is recognized for 5 minutes.
Ms. Baldwin. Mr. Chairman, I offer this amendment today as
a method of insurance, insurance that this bill not be used to
erode a woman's right to choose an abortion. I ask my
colleagues to look at this legislation for what it really is,
not for what it sponsors claim it is.
On its face this bill could be seen as an attempt to
protect pregnant women from assault and to provide prosecutors
with another tool to punish those who cause the nonconsensual
termination of a pregnancy. On closer examination, however, the
bill sets the stage for yet another assault on Roe v. Wade
through the legislative process by treating an embryo or a
fetus, regardless of the stage of development, as an individual
with extensive legal rights distinct from the mother.
In fact, as was said earlier, Senator Orrin Hatch has
admitted, ``They say it undermines abortion rights. It does;
but that is irrelevant.'' other supporters of the Unborn
Victims of Violence Act maintain their claim that their bill
has nothing to do with abortion rights. If this is truly the
case, then they should have no problem supporting this
amendment, which simply states that nothing in this bill
undermines a woman's right to choose an abortion.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. Does the gentleman from Ohio insist
upon his point of order?
Mr. Chabot. Yes.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Chabot. I make a point of order that the amendment
exceeds the scope of the referral because it addresses matters
outside the rule 10 jurisdiction of the Judiciary Committee.
The bill is referred to the Committee for consideration of
provisions which fall within our jurisdiction. The matters in
section 3 of the bill amend the Uniform Code of Military
Justice, which falls within the rule 10 jurisdiction of the
Committee on Armed Services. Thus, amendments to that section
of the bill exceed the scope of the referral. The Committee on
Armed Services has a secondary referral on the bill, and that
section can be addressed there, if appropriate.
For those reasons, I would insist on my point of order.
Chairman Sensenbrenner. Does the gentlewoman from Wisconsin
wish to be heard on the point of order?
Ms. Baldwin. First, I ask unanimous consent to modify this
amendment to read, ``Page 4, after line 25.'' .
Chairman Sensenbrenner. Does the gentlewoman also wish to
change the page 7, line 7, change?
Ms. Baldwin. Probably, right. I do not have it exactly.
Chairman Sensenbrenner. I am trying to help the gentlewoman
out.
Ms. Baldwin. I do not have the correct cites in front of
me.
Chairman Sensenbrenner. Would the gentlewoman suggest that
the reference to page 7, line 7, be stricken, and that can be
corrected in giving the staff authority to make technical and
conforming changes?
Ms. Baldwin. I so move, and thank the Chairman.
Chairman Sensenbrenner. The question is on the point of
order. You can ask to modify the amendment so as to strike line
5.
Ms. Baldwin. Mr. Chairman, I ask unanimous consent to so
modify the amendment.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]

Chairman Sensenbrenner. Does the gentleman from Ohio now
wish to press his point of order?
Mr. Chabot. I will withdraw my point of order.
Chairman Sensenbrenner. The point of order is withdrawn.
Does the gentleman from Ohio wish to be recognized in
opposition to the amendment?
Mr. Chabot. Yes, Mr. Chairman, I do.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Mr. Chairman, this amendment also should be
defeated. H.R. 1997, by its clear terms, does not implicate Roe
v. Wade or anything in that opinion that speaks to the meaning
of the word ``person'' in the 14th amendment. Adding the
language of this amendment, as proposed, however, would
indicate to courts that the bill would somehow otherwise
implicate Roe v. Wade when it does not.
As Ms. Hart mentioned before, Walter Dellinger, who was
President Clinton's legal adviser on constitutional issues, and
prior to that he cochaired a NARAL-sponsored commission to
defend Roe v. Wade, as constitutional law adviser to President
Clinton, Mr. Dellinger has said he drafted five executive
orders that were issued by President Clinton on his third day
in office nullifying various antiabortion policies adopted by
earlier Presidents. Mr. Dellinger later served the Clinton
administration as Assistant Attorney General and as Acting
Solicitor General of the United States.
On July 13, 2003, the Raleigh News Observer published the
following passage in a story titled, ``A Question of Rights.''
Quoting from that article, ``Mr. Dellinger, a former Solicitor
General with the Clinton administration who teaches at Duke
University, says that although he is a strong advocate for a
woman's right to choose abortion, he sees no major problem with
the fetal homicide laws. `I don't think they undermine Roe v.
Wade,' he said. `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. I just think that proposals like this ought to be
considered on their own merit.' ''
So even President Clinton's legal adviser on constitutional
law agrees that this bill has absolutely nothing to do with Roe
v. Wade. Therefore, I think there is no reason to include this
particular amendment. I would oppose it and encourage my
colleagues to do the same.
Mr. Weiner. Mr. Chairman, would the gentleman yield to a
question on that point?
Chairman Sensenbrenner. The gentleman from New York Mr.
Weiner is recognized for 5 minutes.
Mr. Weiner. Mr. Chairman, I ask for a purpose of
clarification from the author.
Putting aside the language of the amendment, in your
opinion should anything in the section be construed as
undermining a woman's right to choose an abortion as guaranteed
by the United States Constitution or limiting in any way the
rights or freedoms of pregnant women? I would yield to the
gentleman.
Mr. Chabot. I don't think it is necessary for this
amendment to be included. As was stated, there are many of us
who are prolife. I have no question about that. But I think
this particular bill itself has nothing to do with abortion.
Mr. Weiner. Mr. Chairman, reclaiming my time, just
confirming, you answered in the affirmative when I asked should
anything in this section be construed as undermining a woman's
right to choose an abortion as guaranteed by the United States
Constitution, or limiting in any way the rights or freedoms of
pregnant women. Yet in a moment you are going to be voting in
opposition to that concept because while you agree with it, you
feel that it just has no place in the law?
Mr. Chabot. Would the gentleman yield?
Mr. Weiner. Yes, just for the purpose of hearing if I
understand it correctly.
Mr. Chabot. No, it is not correct. By including this
language, we are saying it does have to do with Roe v. Wade.
Mr. Weiner. Let me take out ``entirely.'' the amendment in
front of us--and let me ask you this question again and see if
I get an answer. In your opinion as the author of this bill,
should anything in this section be construed as undermining a
woman's right to choose an abortion as guaranteed by the United
States Constitution or limiting in any way the rights or
freedoms of pregnant women?
Mr. Chabot. If the gentleman would yield, no, I don't think
this bill does. But relative to that particular issue, I would
acknowledge what Mr. Conyers said before. There are many of us
who are prolife and would like to do away with Roe v. Wade, but
that is not this bill.
Mr. Weiner. Thank you. It is the position, just to restate,
as the author of this bill, that nothing in this section shall
be construed as undermining a woman's right to choose an
abortion as guaranteed by the United States Constitution or
limiting in any way the rights and freedoms of American women.
That was just the stated position of the author of this bill.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment.
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. Mr. Watt.
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I want to state that my good friend
from Duke University Mr. Dellinger may or may not be right in
his assessment of this. I remember a former constitutional
scholar and Member of this Committee, Mr. Frank of
Massachusetts, whose position was always when we came to these
forks in the road like this and the objection to an amendment
was that it was somehow redundant or unnecessary, he would
always say, well, what else is new in the law? The law in
almost every respect has redundancies and things that may or
may not be necessary, but if they express a principle that is a
correct principle that is not inconsistent with the underlying
bill's purpose, what is the big deal?
That is kind of how I feel about this amendment. If this
bill is, as the sponsors say, having nothing to do with a
woman's right to choose, Roe v. Wade, or anything of that
nature, then what would be the problem with having this
amendment as part of the bill? Certainly the fact that it is
unnecessary or redundant would not be a compelling argument not
to put the language in there. It seems to me it would be a
compelling argument to put it in there to ensure a bipartisan
level of support for what you are trying to achieve.
I don't for the life of me understand that argument. I wish
Barney Frank were still on this Committee to make his point in
the way that he always used to make it because I know I am not
doing justice to it. Redundancy is kind of the hallmark of most
statutes. We say it 19 different ways to make sure that we
cover 19 different contingencies, and certainly the fact that
this amendment would be redundant does not strike me as being a
compelling reason to be against it.
Mr. Chairman, I yield to Mr. Conyers.
Mr. Conyers. Thank you, Mr. Watt.
The resistance that we are encountering on this amendment
and to me what seems an equivocal response to the gentleman
from New York's question only reraises the concerns that I have
already articulated.
This bill is a wolf in sheep's clothing. The amendment is
good, but if this amendment is rejected, it establishes the
fact that we have got a bill that may be a wolf in sheep's
clothing. I am more apprehensive than I already was when I came
to the hearing, which was at a pretty high level. This is about
the third time we have been going around on this one. It is
confirming my worst suspicions.
I thank the gentleman.
Mr. Watt. Mr. Chairman, reclaiming my time, I am always
leery of bills that want to make a point rather than make law.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Watt. Mr. Chairman, I ask for 30 additional seconds.
Chairman Sensenbrenner. Without objection.
Mr. Watt. It seems to me we ought to be trying to get as
much bipartisan support for something as we can. We can either
have the bill, or we can have the point. Maybe we can have both
of them, but I think if your real interest is in passing a bill
with bipartisan support, this is an innocuous amendment.
Chairman Sensenbrenner. The gentlewoman from Pennsylvania.
Ms. Hart. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman from Pennsylvania
is recognized for 5 minutes.
Ms. Hart. Mr. Chairman, I don't believe the language is
redundant, I believe the language is obtuse, because it refers
to a guarantee within the United States Constitution which is
not explained. There is no reference to any cases, and it is
really an awkward thing to put in the Code.
We worded the bill very carefully that says nothing in this
bill can be construed to permit the prosecution of anyone
relating to a legal abortion. That is very clear. It is
enumerated much more clearly in our bill than it is in the
amendment.
I believe that the amendment should be opposed not because
it is redundant, but because the language is actually awkward
to put into the Code regarding limiting the rights and freedoms
of pregnant women. There is nothing specific as far as what
that actually means, and I think it actually makes the bill
less clear. So I would oppose the amendment.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from Wisconsin Ms.
Baldwin. Those in favor will say aye.
Those opposed, no.
The noes appear to have it.
Ms. Baldwin. Mr. Chairman, I request a rollcall vote.
Chairman Sensenbrenner. A rollcall is ordered. The question
is on agreeing to the amendment offered by the gentlewoman from
Wisconsin Ms. Baldwin. Those in favor will, as your names are
called, answer aye. Those opposed, no. The Clerk will call the
roll.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Ms. Hart.
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Carter.
Mr. Carter. No.
The Clerk. Mr. Carter, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mrs. Blackburn.
Mrs. Blackburn. No.
The Clerk. Mrs. Blackburn, no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Ms. Baldwin.
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the Chamber
who wish to cast or change their vote?
If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 11 ayes and 20 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments?
The gentleman from Virginia Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
It is the one designated .038.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 1997 offered by Mr. Scott of
Virginia.
Mr. Scott. Mr. Chairman, I ask unanimous consent that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, it seems as though we are again
engaged in a debate over the abortion issue and when life
begins rather than over a substantive piece of legislation that
could actually address violence against women. Indeed, the fact
that this bill, which creates a new Federal crime, was heard in
the Constitution Subcommittee instead of the Crime Subcommittee
indicates that the constitutional jurisdiction over abortion
was the focus of the discussion.
This bill offers no additional protections to pregnant
women in its present form. It serves no purpose other than to
engage Members in a discussion about when life begins. That
discussion is not one for criminal law because the purpose of
criminal law is to punish and deter crime.
Creating a separate crime against an embryo will not act as
any deterrence against crime. Indeed, instead of creating a
separate category of victims, it would be better to construct
an enhanced penalties strategy for those who commit crimes
against pregnant women. This would not require that we
undertake the abortion question or a question of whether we are
reconsidering Roe v. Wade. Sentencing enhancements could cover
situations that this bill purports to address. In the case of a
person assaulting a pregnant woman, the prospective sentence
could include sentencing enhancements. This would be one
meaningful way to deter violence against pregnant women without
opening the criminal code to a debate about when life begins. I
think this is a more reasonable approach to a serious problem
and is a better way to go in this bill. I urge my colleagues to
support the amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. Chabot. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman from Ohio is
recognized for 5 minutes.
Mr. Chabot. Mr. Chairman, this amendment should be
defeated. Ultimately the criminal law is not a schedule of
punishments. It is an expression of society's values. The
legislation before us today, I submit, simply does not resonate
with society's sense of justice.
This amendment treats the loss of a wanted and loved unborn
child as a mere sentencing enhancement. It would reduce the
loss of an unborn child to a small square in the grid that
defines graduated penalties under the Federal sentencing
guidelines. That is just not right. No sentencing enhancement
can adequately express society's disapproval for the distinct
loss a mother feels when her wanted unborn child is harmed or
killed by a violent criminal. A loss that is both unique and
uniquely offensive to both a loving expectant mother and to all
Americans warrants a unique and separate offense under the
criminal law.
This legislation respects both a woman's desire to carry
and love a child and the distinct loss that occurs when her
loved, unborn child suffers at the hand of a violent criminal.
This amendment would allow the United States Sentencing
Commission, not an elected body, the right to determine that
the loss of a baby through violence 3 months from birth
warrants a lesser penalty than a baby 2 months from birth. A
woman's decision to carry her wanted, loved, unborn child into
this world should not be weighted differently depending whether
the baby is months or days away from birth.
H.R. 1997 does not make such distinctions, but rather
provides that whatever the harm caused to an unborn child by
violent criminals, that harm warrants a separate offense. When
a pregnant woman is murdered, her family mourns the death and
loss of not one, but two family members. This is what 84
percent of Americans believe, that prosecutors should be able
to bring a homicide charge on behalf of an unborn child killed
in the womb, not that prosecutors should simply request more
jail time for offenders.
Opponents of the Unborn Victims of Violence Act sometimes
argue that the act is unnecessary because current Federal law
already provides sufficient authority to punish violent
criminals for injuring or killing unborn children either by
imposing criminal liability or enhancing sentences for
inflicting injuries upon unborn children. Ronald White, Esq.,
testified to that effect at the Subcommittee hearing during the
106th Congress on July 21, 1999. This is simply not true.The
truth is that not one of the cases cited by Mr. White in his
testimony held that a Federal court may impose criminal
liability for killing or injuring an unborn child, nor do any
of the other cases that the Committee looked at.
For these and many other reasons, I would strongly urge my
colleagues to oppose this particular amendment.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by gentleman from Virginia Mr. Scott. Those
in favor will say aye.
Those opposed, no.
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
amendment number 2.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. ``amendment to H.R. 1997 offered by Mr. Scott of
Virginia.
``starting on page 3, line 3, delete lines 3-9 and
redesignate the paragraphs accordingly.''
[The amendment follows:]

Chairman Sensenbrenner. The gentleman from Virginia Mr.
Scott is recognized for 5 minutes.
Mr. Scott. Mr. Chairman, this is a fairly straightforward
amendment. If this amendment is not accepted, the bill will
allow criminal prosecution without mens rea normally required
in American States criminal jurisprudence. In addition to any
other crime you may be indicted for or prosecuted for in court,
this bill, as it presently is constituted, has a specific
exception to the traditional mens rea requirement, and that is
you could be punished whether you knew you were committing the
crime or not. If that is constitutional, it is bad policy to
begin convicting people in violation of traditional due
process, and I would hope that the mens rea provision that is
in every other criminal law that I am aware of be reinstated by
adopting the amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. Chabot. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5.
Mr. Chabot. Mr. Chairman, this amendment should also be
defeated because it would override the age-old, established
concept of transferred criminal intent, as the gentlewoman from
Pennsylvania mentioned before.
I want to belatedly commend Ms. Hart for pulling together
this bill to begin with it and push for it. I think it is
tremendous that she is doing this.
Some opponents of H.R. 1997 argue that this bill lacks the
necessary requirement of mens rea, and it is, therefore,
unconstitutional. Others opposing the bill argue that no intent
to cause harm is necessary under the proposed language. Both of
these arguments are without merit, however, as H.R. 1997
clearly requires that the defendant have committed an act of
violence with criminal intent upon a pregnant woman which
consequently injures or kills her unborn child.
This intent to harm the pregnant woman must be proven
beyond a reasonable doubt. If such criminal intent towards the
mother is proved, then the defendant will also be held
responsible for the harm done to the unborn child based upon
the centuries-old criminal law doctrine known as transferred
intent. This doctrine simply states that the criminal intent
directed toward the pregnant woman is also considered to have
been directed toward the unborn child, and the criminal is
liable for the injury or death of the unborn child just as he
would have been liable had a born person been injured or
killed.
For these reasons, I ask my colleagues to oppose this
amendment.
I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by gentleman from Virginia Mr. Scott. Those in favor
will say aye.
Those opposed, no.
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
If there are no further amendments, a reporting quorum is
present. The question is on the motion to report the bill, H.R.
1997, favorably.
Before that, without objection, the short title will be
amended by striking ``2003'' and inserting ``2004.'' .
All those in favor of reporting the bill favorably will say
aye.
Opposed, no.
The ayes appear to have it.
Mr. Chabot. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. The
question is on reporting the bill H.R. 1997 favorably as
amended. Those in favor will, as your names are called, answer
aye. Those opposed, no. The Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
[No response.]
The Clerk. Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Carter.
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mrs. Blackburn.
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan, no.
Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler, no.
Ms. Baldwin.
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner, no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there Members in the Chamber
who wish to cast or change their votes?
The gentleman from Utah Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Chairman Sensenbrenner. Further Members in the Chamber who
wish to cast or change their votes? If none, the clerk will
report.
The Clerk. Mr. Chairman, there are 20 ayes and 13 noes.
Chairman Sensenbrenner. The motion to report favorably is
agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute incorporating the amendment adopted here today.
Without objection, the Chairman is authorized to move to go to
conference pursuant to House rules.
Without objection, the staff is directed to make any
technical and conforming changes, and all Members will be given
2 days as provided by House rules in which to submit additional
dissenting supplemental or minority views.
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. Point of information, Mr. Chairman.
Mr. Chairman, I know this bill has concluded. I just wanted
to make a note of my absence, and that I was drawn away by a
presentation that I had to make off the Hill. I did have
amendments, and I know that the bill has just been closed, and
I would like to indicate that I would like to submit those
amendments for the record.
Chairman Sensenbrenner. The gentlewoman's statement will
appear in the record following the unanimous consent requests
that were agreed to and the right of Members to submit
dissenting additional supplemental or minority views.
The Chair would also observe that one other way to do this
is for the gentlewoman to avail herself of the right to submit
dissenting or supplemental views as she wishes.
Ms. Jackson Lee. I thank the Chairman very much.
[The material referred to follows:]

[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas

Dissenting Views

H.R. 1997 marks a major departure from existing Federal law
by elevating the legal status of a fetus at all stages of
prenatal development, and thus threatens to erode the
foundations of the right to choose as recognized by the Supreme
Court in Roe v. Wade.\1\ While masquerading as legislation to
protect pregnant women from crimes universally recognized as
among the most heinous, this legislation does nothing to
prevent violence against women, nor does it do anything to
provide women with the health and other services they need to
have healthy and safe pregnancies. This legislation would,
rather, be another assault on women's autonomy and their right
to decide whether and when to bring healthy children into the
world. For these reasons, it has long been opposed by
organizations committed to combating violence against women,
and to protecting a woman's constitutional right to choose.\2\
---------------------------------------------------------------------------
\1\ 410 U.S. 113 (1973).
\2\ Letter to Members of the House of Representatives from Esta
Soler, President, Family Violence Prevention Fund (January 27, 2004);
Letter to Members of the House of Representatives from Nancy Rustad,
President, American Association of University Women (January 27, 2004);
Letter to Rep. Jerrold Nadler from Vicki Saporta, President, National
Abortion Federation (January 27, 2004); Letter to Members of the U.S.
Senate from Marcia D. Greenberger, Co-President, National Women's Law
Center (January 20, 2004); Letter to Members of the House of
Representatives from Marsha Atkind, National President, National
Council of Jewish Women (January 2004); Letter to Rep. Jerrold Nadler
from Rev. Carlton W. Veazey, President, Religious Coalition for
Reproductive Choice (January 27, 2004); Letter to Members of the House
of Representatives from Laura W. Murphy, Director, American Civil
Liberties Union Washington Legislative Office (January 20, 2004);
Letter to Rep. Jerrold Nadler from Kate Michelman, President, NARAL
Pro-Choice America (January 23, 2004); Letter to Rep. Jerrold Nadler
from Gloria Feldt, President, Planned Parenthood (January 23, 2004);
Letter to Rep. Jerrold Nadler from Vicki Saporta, President, National
Abortion Federation (January 27, 2004); Letter to Members of Congress
from Ralph Neas, President, People for the American Way (January 23,
2004); Letter to Members of Congress from Kim Gandy, President,
National Organization For Women (January 26, 2004).
---------------------------------------------------------------------------
For these reasons, we strongly dissent and urge our
colleagues to take real steps to protect women and to help them
obtain the assistance they need to be safe from violence and to
protect their right to have healthy pregnancies and healthy
children when they choose to become parents.

I. H.R. 1997 IS AN ASSAULT ON A WOMAN'S RIGHT TO CHOOSE

In Roe, the Court recognized a woman's right to have an
abortion as a privacy right protected by the 14th amendment. In
considering the issue of whether a fetus is a ``person,''
within the meaning of the 14th amendment, the Court noted that,
except in narrowly defined situations, and except when the
rights are contingent upon live birth, ``the unborn have never
been recognized in the law as persons in the whole sense'' and
concluded that `` `person,' as used in the 14th amendment, does
not include the unborn.'' \3\
---------------------------------------------------------------------------
\3\ Id. at 158.
---------------------------------------------------------------------------
It is not surprising that opponents of Roe, and of other
cases building on the rights enunciated by the Court in Roe,\4\
have made every effort to secure recognition of fetuses as full
legal persons.\5\ In the year 2003 alone, State legislatures
considered 558 anti-choice measures (an increase of 35.1% from
the prior year) and enacted 45 such measures (a 32.4% increase
over the prior year).\6\ This legislation falls squarely within
that strategy.
---------------------------------------------------------------------------
\4\ See e.g., Doe v. Bolton, 410 U.S. 179 (1973) (extended Roe by
precluding States from making abortions unreasonably difficult to
obtain by prescribing elaborate procedural barriers); Planned
Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992)
(reaffirmed the basic constitutional right to an abortion under Roe,
but adopted a new analysis).
\5\ See generally Danos v. St. Pierre, 402 So.2d 633, 639 (La.
1981) (citing legislative pronouncement that ``a human being exists
from the moment of fertilization and implantation''); Vaillancourt v.
Medical Center Hosp., 139 Vt. 138, 142-43 (1980) (``A viable unborn
child is, in fact, biologically speaking, a presently existing person
and a living human being . . .'').
\6\ NARAL--Pro-Choice America 2004 Who Decides? A State-by-State
Report on the Status of Women's Reproductive Rights (January 2004).
---------------------------------------------------------------------------
Historically the destruction of a fetus in utero has not
been deemed a homicide; the alleged victim must have been
``born alive.'' \7\ The Supreme Judicial Court of Massachusetts
became the first American court to break with this long line of
precedent. It held that a fetus was a person for purposes of
the Massachusetts vehicular homicide statute, and thus a
potential homicide victim.\8\ A majority of States now consider
fetuses that die in utero to be ``persons'' under wrongful
death statutes.\9\ In addition, a number of States have adopted
legislation imposing criminal sanctions for the destruction of
a fetus that are identical to those imposed for the murder of a
person.\10\
---------------------------------------------------------------------------
\7\ See Commonwealth v. Cass, 467 N.E. 2d, 1324, 1328 (1984)
(``Since at least the fourteenth century, the common law has been that
the destruction of a fetus in utero is not a homicide . . . The rule
has been accepted as the established common law in every American
jurisdiction that has considered the question.'').
\8\ Id.
\9\ See W. Prosser, D. Dobbs, R. Keeton & D. Owen, Prosser and
Keeton on the Law of Torts Sec. 55, at 370 (5th ed. 1984) (listing
States); Mone v. Greyhound Lines, 368 Mass. 354, 331 N.E.2d 916 (1975);
At least 27 States recognize the ``unborn child'' in murder or
manslaughter; 15 States punish assault, battery, or other harm
resulting in injury or death; six States punish termination of or harm
to a pregnancy as an adjunct crime against the pregnant woman, or as a
sentencing enhancement. Planned Parenthood, Summary and Analysis: State
Laws that Overlap with H.R. 503, (March 2001).
\10\ See e.g., Cal Penal Code Sec. 187 (West Suppl 1986) (``Murder
is the unlawful killing of a human being, or a fetus, with malice
aforethought.'') ILL. ANN. STAT. Ch 38, Sec. 9-1.1 (Smith-Hurd Supp.
1985) IOWA CODE ANN Sec. 707.7 (West 1979); MICH COMP. LAWS ANN.
Sec. 750.322 (West 1968); MISS. CODE ANN. Sec. 97-3-37 (1973); N.H.
REV. STAT. ANN Sec. 585:13 (1974); OKLA. STAT.ANN. Title. 21, Sec. 713
(West 1983); UTAH CODE ANN. Sec. 76-5-201 (Supp. 1983); WASH. REV. CODE
ANN. Sec. 940-04 (West 1982).
---------------------------------------------------------------------------
Proponents of this legislation and its precursors have long
asserted that, in the language of the bill, ``[n]othing in this
[act] shall 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, has been obtained or for which such consent
is implied by law.'' \11\ Yet H.R. 1997 forges new ground in
attempting to recognize a zygote, blastocyst, embryo, and fetus
as a person with the same legal status as the woman or anyone
else who has been the victim of a crime,\12\ a proposition that
is at odds with the rights of the pregnant woman under Roe.\13\
---------------------------------------------------------------------------
\11\ H.R. 1997 Sec. 2(a) [creating a new Sec. 1841 c)(1) ].
\12\ For example, if a defendant were to cause a miscarriage, or
cause damage to the fetus, the punishment for the act would be a
``separate offense'' penalized as if the defendant had caused the death
or injury to the pregnant woman.
\13\ Proponents of H.R 1997, argue that it is not at odds with Roe:
``there is nothing in [H.R. 503] that restricts a mother's right to an
abortion . . . [m]oreover, the scare tactics that [H.R. 503] will
empower so-called `pregnancy police' are demolished by section (c)(3),
which immunizes from prosecution . . . the woman for any actions taken
with respect to her unborn child.'' Hearing before the Subcommittee on
the Constitution of the Committee on the Judiciary, House of
Representatives on H.R. 503, the ``Unborn Victims of Violence Act of
2001.'' (March 15, 2001) (Hereinafter ```March 2001 hearing'') (written
statement of Richard S. Myers, Ave Maria School of Law). This argument
is misguided. At issue is not whether this bill would penalize a woman
for having had an abortion. This bill threatens a woman's right to
choose because it would recognize a zygote, blastocyst, embryo, or a
fetus as a person with the same rights as a pregnant woman. This is at
odds with Roe.
---------------------------------------------------------------------------
In the 30 years since Roe, the Supreme Court has never
afforded legal personhood to a fetus. Outside of the abortion
context, the Court has only twice been asked to uphold a
State's determination that a fetus was an ``unborn child,'' and
in both cases, the Court declined to do so.\14\
---------------------------------------------------------------------------
\14\ See Burns v. Alcala, 420 U.S. 575 (1975) (an ``unborn child''
is not a ``dependant'' for purposes of AFDC benefits), Webster v.
Reproductive Health Services, 492 U.S. 490 (1989) (held that a Missouri
law which afforded legal protection to ``unborn children'' was merely
rhetorical, and not ``operative'' because it was a statement of
principle, and was not actually being applied; as such, the Court never
addressed the merits of the constitutionality).
---------------------------------------------------------------------------
The bill's repeated use of the term ``bodily injury''
raises questions as to how the sponsors intend to account for
such speculative criteria as ``fetal pain.'' The bill defines
the term ``unborn child--as a ``child in utero'' despite the
fact that the term ``unborn child'' is not a known legal or
medical term, and its only known use is found in anti-choice
rhetoric.\15\ The term is also technically imprecise, as
``unborn child'' implies that personhood begins prior to birth
or viability, as early as the moment of conception. Proper
medical terminology used to describe stages of gestation is
either zygote (fertilized egg), blastocyst (a pre-implantation
embryo), embryo (through the eighth week of pregnancy), or
fetus.\16\ The imprecise terms used by H.R. 1997's sponsors
also clearly conflict with the Constitution as was clearly
articulated by the Supreme Court in Roe v. Wade which stated
``the use of the word [`person'] is such that it has
application only post-natally'' \17\ and ``the word `person',
as used in the 14th amendment, does not include the unborn.''
\18\
---------------------------------------------------------------------------
\15\ One proponent of the bill exclaimed: `` `fetus' is Latin for
offspring or young.'' (March 2001 hearing) (written statement of Robert
J. Cynkar). While the speaker correctly identified the Latin root of
the word ``fetus,'' the technical definition was incorrect, as fetus
refers to a stage of a prenatal development of 12 weeks or more, and
does not connote postnatal development in any form. Robert Berklow,
M.D., Editor-in-Chief, et. al. The Merck Manual, 16th ed., at 1837
(1992). A member of the Subcommittee at the March 2001 hearing
evidenced some confusion with the term:

Mr. Hostettler. The fetus. That is Latin, am I not
correct?
Ms. Fulcher. I don't know. I assume so.
Mr. Hostettler. Yes. Testimony by actually Mr. Cynkar
says that is true. ``Fetus'' is simply Latin for offspring
or young. I am not an attorney, so I just need to have that
clarified, that some are speaking in the Latin while I
speak in the English, so----
Ms. Fulcher. My understanding is that the more
traditional term in the legal sense is ''fetus'' at that
point.
Mr. Hostettler. Right, and the 99 percent of us that
aren't lawyers think in other terms.
---------------------------------------------------------------------------
\16\ See Statement of the Center for Reproductive Law and Policy
(``CRLP'') in Opposition to H.R. 2436, (Sept. 7, 1999).
\17\ 410 U.S. 113, 157 (1973).
\18\ Id. at 157. Proponents of H.R. 1997 argue that it is within
Congress' constitutional power because ``no conduct whatsoever that is
presently free of Federal regulation will be regulated.'' March 15,
2001 Hearing (written statement of Richard S. Myers, Ave Maria School
of Law). This argument fails to recognize that, for the first time
under U.S. law, the bill would criminalize harm to a zygote,
blastocyst, embryo, or a fetus in the same manner as the law currently
does to a person. This is a clear and unprecedented challenge to Roe.
---------------------------------------------------------------------------
Finally, the original draft of this legislation, H.R. 2436,
introduced in the 106th Congress, did not contain a definition
of the phrase ``child in utero.'' In response to criticism that
the bill was vague, Rep. Charles Canady, and the sponsors of
later versions, as well as H.R. 1997, attempted to address the
problem by defining the term as ``a member of the homo sapiens,
at any stage of development, who is carried in the womb.'' \19\
---------------------------------------------------------------------------
\19\ H.R. 1997 Sec. 2(a) (adding Sec. 1841(d) to title 18 U.S.C.)
---------------------------------------------------------------------------
This language is impermissibly vague. It is not clear
whether the sponsors intend to include: (1) homo sapiens ``at
any stage of development'' from conception to live birth. This
definition would appear to include zygotes within the
definition of ``unborn child;'' (2) homo sapiens ``carried in
the womb,'' whether before or after implantation in the uterine
wall, which would seem to include zygotes and blastocysts; or
(3) an embryo or fetus following implantation. Given this
ambiguity, it is entirely possible that the sponsors intend to
equate the rights of a zygote with those of a fully mature
woman whose constitutional rights have vested at birth. In the
alternative, the ``unborn child'' would be protected only after
it entered the womb, or implanted in the uterine wall. In
either case, this would pose a direct facial challenge to Roe.
If the ``unborn child'' is covered only after implantation,
determining when the harm occurred, and whether H.R. 1997 had
been violated, would give rise to virtually unanswerable
evidentiary problems.

II. DUE PROCESS IMPLICATIONS

H.R. 1997 lacks a mens rea requirement \20\, and,
therefore, runs afoul of the Constitution's due process
requirement that criminal laws require that the perpetrator
must have a criminal intent.\21\ Under H.R. 1997, however, a
person may be convicted of the offense of harm to a fetus even
if he or she did not know, and had no reason to know, that the
woman was pregnant. As such, this bill punishes people for
crimes that they did not intend to commit.
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\20\ In fact, subsection (a)(2)(B) explicitly disavows a mens rea
requirement: ``An offense under this section does not require proof
that . . . the person engaging in the conduct had knowledge that the
victim of the underlying offense was pregnant . . . or the defendant
intended to cause the death of, or bodily injury to, the unborn
child.''
\21\ See New York v. Ferber, 458 U.S. 747, 765 (1982) (holding
that, except in a small class of public welfare cases, not applicable
here, ``criminal responsibility . . . not be imposed without some
element of scienter (intent) on the part of the defendant.''; see also
Liporta v. United States, 471 U.S. 419, 426, (1985) (``[C]riminal
offenses requiring no mens rea have a generally disfavored status.''
(internal quotations omitted)); Staples v. United States, 511, 605 U.S.
6000 (1994) (``The contention that an injury can amount to a crime only
when inflicted by intention is no provincial or transient notion. It is
as universal and persistent in mature systems of law as belief in
freedom of the human will and a consequent ability and duty of the
normal individual to choose between good and evil.'' (quoting Morisette
v. United States, 342 U.S. 246, 250 (1952)).
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Proponents of the bill claim that a separate mens rea
provision is not needed because the bill incorporates the
requisite mens rea elements of those underlying predicate
offenses.\22\ This is false for two reasons. First,
Sec. 2(a)(2)(B) states: ``an offense under this section does
not require proof that . . . (the person had the requisite
intent).'' Thereafter, Sec. 2(b) states: ``the provisions
referred to in subsection (a) are the following: . . .'' \23\
These two sections read together could eliminate the specific
intent requirements contained in all of the enumerated criminal
statutes in Sec. 2 (b) even though such statutes in of
themselves clearly contain an intent element. Second, the bill
also fails to require a conviction on the underlying predicate
offenses. This creates an extremely harsh strict-liability
criminal scheme.\24\ It is unlikely that these mens rea
deficiencies would pass constitutional muster.
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\22\ Relying on a theory of transferred intent, Robert J. Cynkar
argued: ``No element of murder requires that the perpetrator have the
specific intent to kill the person who in fact was killed'' and ``an
individual who commits a dangerous felony, which unintentionally
results in the death of a person, is guilty of murder.'' March 15, 2001
Hearing (written statement of Robert J. Cynkar).
\23\ The following Federal crimes are cross referenced in the new
subsection (b)(1):

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Sections of Title 18, U.S.C.:

36 (Drive-by shooting), 37 (Violence at international airports),
43(Animal enterprise terrorism), 111, 112,113, 114, 115, (sections 111-
115 include the Federal crimes of assault in ch. 7, U.S.C., except sec.
116, (pertaining to Female genital mutilation), 229 (crimes involving
chemical weapons), 242 (depravation of rights under color of law), 245
(various civil rights violations and civil disorder crimes), 247(damage
to religious property; obstruction of persons in the free exercise of
religious beliefs), 248 (Freedom of access to clinic entrances), 351
(Congressional, Cabinet, and Supreme Court assassination, kidnaping,
and assault), 831(Prohibited transactions involving nuclear materials),
844(d), (f), (h)(1), and (i) (offensives involving explosives),
924(j)(murder or manslaughter by firearm while in the commission of a
crime of violence or a drug trafficking crime), 930 (possession or use
of firearms and dangerous weapons in Federal facilities), [sec. 1091,
pertaining to genocide, not included],1111, 1112, 1113, 1114, 1116,
1118, 1119, 1120, 1121 (homicide), 1153(a) (offenses committed within
Indian country), 1201(a) (kidnaping), 1203 (hostage taking), 1365(a)
(tampering with consumer products), 1501 (assault on a process server),
1503 (influencing or injuring officer or juror), 1505 (obstruction of
proceedings before departments, agencies or committees), 1512
(tampering with a witness, victim, or an informant), 1513 (retaliating
against a witness, victim, or an informant), 1751 (Presidential and
Presidential staff assassination, kidnaping and assault), 1864
(hazardous or injurious devices on Federal lands), 1951 ,
1952(a)(1)(B), (a)(2)(B), and (a)(3)(B), (sabotage), 1958 (murder for
hire), 1959 (violent crimes in aid of racketeering), 1992 (wrecking
trains), 2113 (bank robbery), 2241(a) (aggravated sexual abuse), 2245
(sexual abuse resulting in death), 2261 (interstate domestic violence),
2261A (interstate stalking), 2280 (violence against maritime
navigation), 2281 (violence against maritime fixed platforms), 2332
(terrorism), 2332a (use of weapons of mass destruction), 2332b
(international terrorism), 2340A (torture), and 2441 (war crimes).

Other offenses:

Sec. 408(e) of the Controlled Substances Act of 1970 (murder during the
commission of a felony criminal enterprise).

Sec. 202 of the Atomic Energy Act of 1954 (murder of nuclear
inspectors).

Sec. 3 of H.R. 1997 (proposed amendment to Title 10 U.S.C. adding a new
Sec. 919a. Art. 119a. to the Uniform Code of Military Justice).
Sections of the Uniform Code of Military Justice cross-referenced are:
918 (murder), 919(a), 919(b)(2) (manslaughter), 920(a) (rape), 922
(robbery), 924 (maiming), 926 (arson), 928 (assault).
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\24\ Sec. (a)(1) merely states: ``[w]hoever engages in conduct that
violates any of the provisions of law listed in subsection (b) . . . is
guilty of a separate offense.''
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The sponsors of H.R. 1997 rely on the criminal law doctrine
of transferred intent, which transfers the malevolent intent
which the perpetrator of a crime harbors and acts upon against
a pregnant woman, to her fetus.\25\ For example, if A aims a
gun at B with a murderous intent to kill B, but mistakenly hits
and kills C, A's murderous intent to kill B is ``transferred''
to C, and A is guilty of murdering C. This reasoning similarly
applies in cases involving assault and other crimes.
---------------------------------------------------------------------------
\25\ See e.g., United States v. Diaz, 636 F.2d 621, 674 (D.C. Cir.
1980) (transferred intent was adopted by the American courts during the
early days of the republic and is now black letter law) quoting Regina
v. Saunders, 2 Plowd. 473, 474a, 75 Eng. Rep. 706, 708 (1576)).
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What is remarkable and improper about H.R. 1997's
application of the doctrine of transferred intent to
pregnancies is that it treats, as a matter of law, the pregnant
woman and her fetus as two distinct victims of a crime,
regardless of whether the perpetrator knew or should have known
that the woman was pregnant, or whether the perpetrator
intended to, or actually did, cause harm to the pregnant woman
herself. In fact, harm to the woman, or intent to cause harm to
the woman, is not a necessary predicate to the offense in the
bill.
H.R. 1997's application of the transferred intent doctrine
only makes sense if the intent transfers to a ``person.'' Such
an application appears on its face to violate Roe in which the
Court clearly declined to determine that a fetus is a legal
person prior to birth. Similarly, it is hard to apply the
doctrine of ``transferred intent'' if the proposed statute has
absolutely no requirement that the defendant ever had the
intent to harm the woman (which might be transferred to the
fetus), or even the knowledge necessary to harm a woman by
reason of her pregnancy.
Additionally, the application of transferred intent to
these cases is not necessary if the legitimate purpose of the
bill is to fight the sort of horrendous crimes committed
against pregnant women to which the sponsors consistently
refer. To this end, a more reasonable alternative would be to
increase the penalties against defendants accused of committing
violent acts against pregnant women, and make the any harm
caused to the woman's fetus a crime committed against the woman
deserving of serious punishment. A substitute offered by Rep.
Zoe Lofgren, which would have created such a separate offense
with the same penalties as this bill for the same acts, without
dealing with the issue of fetal life, was rejected by the
Judiciary Committee.

III. POTENTIAL FOR EXTENSIVE LITIGATION CONCERNING THE FETUS

H.R. 1997 opens the door to litigation over when life
begins and mini-trials on fetal pain embedded within criminal
prosecutions. It would also open the door to imposing liability
on anyone, including the pregnant woman, for acts that occur at
any stage of fetal development. The bill specifically excludes
the pregnant woman, a health care provider performing an
abortion and the woman's health care proxy from prosecution, so
the danger is prospective and theoretical, but the precedent,
and the underlying theory of fetal personhood, pose a threat
that these steps will follow.
This expansion of fetal rights undermines and conflicts
with women's interests. It goes beyond current law which
recognizes the fetus only in those cases where it is necessary
to protect the interests of the subsequently born child or her
or his parent. Rather, H.R. 1997 attempts to confer rights upon
the fetus qua fetus. Endowing the fetus as an entity with legal
rights independent of the pregnant woman, makes possible the
creation of fetal rights that could be used to the detriment of
the pregnant woman.\26\ Although the bill specifically excludes
the pregnant woman from the penalties, giving the fetus a legal
status equal to that of the woman could open the door to legal
sanctions in the future, and the rights of a pregnant women may
be placed in direct conflict with, or subordinate to, those of
her fetus. For example, a future statute might require a woman
to be prosecuted for any act or ``error'' in judgement during
her term, for her consumption of wine or cigarettes, or for her
decision to fly during pregnancy. When expanded to cover
fetuses, child custody provisions may be used as a basis for
allowing a biological father awarded custody of the fetus to
control the women's behavior, or in some cases, civilly commit
pregnant women to ``protect'' their fetuses. The specter of the
State arrogating to itself the right to control the fate of a
fetus by exerting coercive control over a pregnant woman, even
placing her in custody, reduces her to a mere vessel for the
eventual delivery of the then fetus. Such governmental coercion
is far from hypothetical. Several courts have exercised this
extreme form of control.\27\
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\26\ Several amendments to the U.S. Constitution have been proposed
that would explicitly grant fetuses rights as ``persons'' under the
Constitution, but only one, S.J.Res. 3, was ever brought to the floor
and debated. See S.J. Res., 129 Congressional Record S9076, et seq.,
daily ed., June 27, 1983; 129 Congressional Record S9265, et seq.,
daily ed., June 28, 1983.
\27\ In one case, a Judge ordered a pregnant woman who, because of
religious convictions, refused medical care, into custody in an attempt
to ensure that the baby be born safely. National Public Radio, Pregnant
Woman Being Forced Into Custody at a State Medical Facility in
Massachusetts to Ensure That Her Baby is Born Safely, (Sept 14, 2000).
In another case, a Judge sent a student to prison to prevent her from
obtaining a midterm abortion. Reuters, Judge intends Prison Time to
Block Abortion (Oct. 10, 1998). ``There should be no doubt that South
Carolina can impose punishment upon an expectant mother who has so
little regard for her own unborn that the risks causing him or her
lifelong damage or suffering.'' Ferguson v. City of Charleston 532 U.S.
67, 89-90 (2001) (Kennedy, J. Concurring).
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The growing attempts by legislatures and the courts to
exercise this level of control over women forcefully
demonstrates the threat to women's autonomy inherent in the
creation of fetal rights independent of, and equal to, those of
the woman. This is a direct challenge to the woman's autonomy
that the Supreme Court sought to safeguard in Roe when it based
the right to choose on the woman's privacy interest.

IV. CRIME AND VIOLENCE AGAINST WOMEN

H.R. 1997 vests rights in the fetus, but does not respond
to violence against women, and fails to recognize that an
injury to a fetus is first and foremost an injury to the woman,
and, in the case of a live birth, an injury to that individual.
The bill is flawed because it fails to address the vast
number of domestic violence acts perpetrated against women and
prosecuted under State statutes. H.R. 1997 and other Federal
statutes currently on the books directed at interstate domestic
violence \28\, stalking \29\, and violations of protection
orders \30\ would have no effect on these cases.\31\
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\28\ 18 U.S.C. 2261(a).
\29\ 18 U.S.C. 2261A.
\30\ 18 U.S.C. 2262(a)(1).
\31\ March 2001 Hearing (written statement of Juley Fulcher,
National Coalition Against Domestic Violence).
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If the sponsors were legitimately concerned with the
problem of violence against women, they should focus their
efforts on the real problem of violence against pregnant women
and full funding of the Violence Against Women Act \32\ which
expanded protections for women against acts of violence
regardless of their pregnancy status. Tellingly, in fiscal year
2003, Congress appropriated $107,200,000 less than the fully
authorized level. Programs including transitional housing,
Federal victims counselors, and training for judges were not
funded at all. Rape prevention/education was appropriated at
half its authorized level.\33\
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\32\ 18 U.S.C. Sec. 2261.
\33\ National Coalition Against Domestic Violence, Violence Against
Women Act Appropriations Fact Sheet (February 20, 2003).
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CONCLUSION

For 31 years, the constitutional right to choose has been
the law of the land. That right is now under attack as never
before. Efforts to confer upon fetuses, from the very moment of
conception, the full panoply of rights that come with being
declared a legal person would undermine the very basis of that
right. The ``Unborn Victims of Violence Act,'' plainly seeks to
further that very dangerous agenda, and it would do so without
making women who want to have children any safer. The right to
bring healthy children into the world in safety is at the core
of the right to choose. Congress should stop playing abortion
politics and act to protect women, children, and their
families.
We respectfully dissent.

John Conyers, Jr.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Linda T. Sanchez.