Following the House lead, the Senate Judiciary Committee held a February 23 hearing on a bill (S. 1673) that would create a separate offense if an individual kills or injures an “unborn child” while committing a federal crime against a pregnant woman. Sponsored by Sen. Mike DeWine (R-OH), the “Unborn Victims of Violence Act” would exclude consensual abortions, medical treatment, and any legal or illegal conduct of the pregnant woman from prosecution. Bill proponents argue that the bill would merely close a loophole in federal law, while opponents counter that the bill is an attempt to elevate fetal rights above women’s rights. The House passed, 254-182, an identical bill (H.R. 2436) on September 30 (see The Source, 10/1/99).
Testifying on behalf of the administration, Eleanor Acheson of the Department of Justice opposed the bill saying that “it was a flawed federal response to the evils of such violence.” More specifically, Ms. Acheson expressed concern that the bill would “devalue the gravity of violence done to women,” adding that the bill’s “identification of a fetus as a separate and distinct victim of crime is unprecedented as a matter of federal status.” Rather, Ms. Acheson encouraged the committee to reauthorize the Violence Against Women Act (VAWA) as “a straight-forward and effective way to diminish violence against women.”
Juley Fulcher of the National Coalition Against Domestic Violence agreed with Ms. Acheson, saying that S. 1673 would divert the “attention of the legal system away from domestic violence or other violence against women” by switching the impact of the crime from the pregnant woman to the “unborn fetus.” She added that the bill would provide “little or no additional protections for battered women and other women victimized by violence.”
Committee Chair Orrin Hatch (R-UT), while reiterating his support for VAWA, refuted that argument: “With all due respect, I find this argument truly disingenuous….I do not accept the ridiculous argument that mothers are going to be hurt or less protected by the strengthening of laws to protect their unborn children.”
Addressing the constitutionality of the measure, Professor Gerard V. Bradley of Notre Dame Law School argued that S. 1673 would meet constitutional muster because it “does not extend Congress’s reach….No conduct which was lawful is to be unlawful….The Act is essentially a punishment enhancement provision.” He also added that the bill would not “unconstitutionally restrict a woman’s right to choose.”
Ronald Weich of Zuckerman, Spaeder, Goldstein, Taylor & Kolker, LLP told the committee that the bill was unnecessary. “S. 1673 adds nothing meaningful to the charging arsenal of federal prosecutors or the sentencing options available to federal judges,” he said, adding: “I suspect that its purpose, instead, is to score rhetorical points in the ongoing struggle over abortion rights.”
The committee also heard the personal stories of several witnesses who testified in support of the bill. “This bill should be a bipartisan, common sense piece of legislation that protects a woman’s right to carry her unborn child to term,” stated Joseph Daly whose pregnant wife was killed in a car accident. While his wife’s death was not a federal crime, Mr. Daly was instrumental in passing a law similar to S. 1673 in Ohio.
