On July 8, the House Judiciary Subcommittee on the Constitution heard testimony on a bill (H.R. 1997) dealing with fetal protection. Sponsored by Rep. Melissa Hart (R-PA), the Unborn Victims of Violence Act or “Laci and Conner’s Law,” would create a separate offense if an individual kills or injures an “unborn child” while committing a federal crime against a pregnant woman. Abortion providers and women who consent to have an abortion would be exempt from prosecution.
Stating that “violence against women and their unborn children is a far too common occurrence in our society,” Chair Steve Chabot (R-OH) said that “this legislation is vitally important to expectant mothers and their families serving as a deterrent to anyone who thinks they can injure or kill an unborn child with minimal consequences.” Rep. Jerrold Nadler (D-NY) disagreed and voiced his concern that H.R. 1997 would threaten the reproductive rights of women and would be a “direct assault on the Supreme Court’s holding in Roe v. Wade.” He also questioned why the committee refused to hear testimony on alternative legislation sponsored by Rep. Zoe Lofgren (D-CA), the Motherhood Protection Act (H.R. 2247), which would severely increase the punishment for a person who committed a crime against a pregnant woman.
Tracy Marciniak, a woman whose pregnancy was terminated at eight months after she was beaten by her husband, was the first witness to testify in support of H.R. 1997 and said that, “in the eyes of Wisconsin law, nobody had died.” She also voiced her opposition to the Motherhood Protection Act, because “there is only one victim in that bill the pregnant woman.”
Juley Fulcher of the National Coalition Against Domestic Violence was the only witness to testify in opposition to the bill. In her opinion, “the Unborn Victims of Violence Act does not provide the protection that battered women need to obtain safety” and “our response to the problem should be one that truly protects the pregnant woman by early intervention and prevention and not a reaction to a specific set of circumstances after the fact, however horrible and sad.”
Some Democrats on the committee questioned why H.R. 1997 was being considered by the Constitution Subcommittee and not by the Crime, Terrorism, and Homeland Security Subcommittee. For this reason, Gerard Bradley, a law professor at Notre Dame, was asked to address the constitutionality of the bill. He stated that, “because the Act does not extend Congress’s reach; no primary conduct which is presently free of federal regulation will be regulated if the Act becomes law.” In addition, “nothing in the Act affects, much less constitutionally restricts, a woman’s right to terminate her pregnancy” and “this Act’s approach separate victims, separate counts, and thus additional punishment is much more in line with the normal operation of criminal law principles than is the leading alternative.”
During the questioning Rep. Nadler claimed to be “struck” by Mr. Bradley’s testimony and asked him how H.R. 1997 would not establish a fetus as a person when many of his colleagues and the other witnesses claimed that the bill would establish two victims. He replied that, in his opinion, the bill is “not an attempt by Congress to establish on constitutional grounds for purposes of the 14th Amendment that these are, for lack of a more precise term, constitutional persons within the meaning of the 14th Amendment.”
This is not the first time that Congress has considered such legislation. The House passed, 252-172, a similar bill (H.R. 503) in the 107th Congress (see The Source, 4/27/01), but the Senate did not act on the bill. This year, Sen. Mike DeWine (R-OH) introduced comparable legislation (S. 146) in the Senate.
