SPEAKERS       CONTENTS       INSERTS    
 Page 1       TOP OF DOC
62–488

2000
UNBORN VICTIMS OF VIOLENCE ACT OF 1999

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON
H.R. 2436

JULY 21, 1999

Serial No. 29
 Page 2       PREV PAGE       TOP OF DOC

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
 Page 3       PREV PAGE       TOP OF DOC
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

Subcommittee on the Constitution
 Page 4       PREV PAGE       TOP OF DOC
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina

MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York

CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel

C O N T E N T S

HEARING DATE
    July 21, 1999

 Page 5       PREV PAGE       TOP OF DOC
TEXT OF BILL

    H.R. 2436

OPENING STATEMENT

    Canady, Charles, a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution

WITNESSES

    Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College

    Bradley, Gerald V., Professor, Notre Dame Law School

    Dempsey, Terry M., Judge, District Court, 5th Judicial District, St. James, MN

    Fulcher, Juley Anna, Public Policy Director, National Coalition Against Domestic Violence

    Lenz, Michael, Choctaw, OK

    Roberts, Lt. Colonel Keith, Deputy Chief, Military Justice Division, Air Force Legal Services Agency, Bolling Air Force Base, Washington, DC
 Page 6       PREV PAGE       TOP OF DOC

    Rubin, Peter J., Visiting Professor of Law, Georgetown University Law Center

    Stuart, Pamela B., Attorney at Law

    Weich, Ronald H., Partner, Zuckerman, Spaeder, Goldstein, Taylor & Kolker

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College: Prepared statement

    Bradley, Gerald V., Professor, Notre Dame Law School: Prepared statement

    Canady, Hon. Charles, a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution: Prepared statement

    Dempsey, Terry M., Judge, District Court, 5th Judicial District, St. James, MN: Prepared statement

    Fulcher, Juley Anna, Public Policy Director, National Coalition Against Domestic Violence: Prepared statement

    Graham, Hon. Lindsey, a Representative in Congress from the State of South Carolina: Prepared statement
 Page 7       PREV PAGE       TOP OF DOC

    Lenz, Michael, Choctaw, OK: Prepared statement

    Roberts, Lt. Colonel Keith, Deputy Chief, Military Justice Division, Air Force Legal Services Agency, Bolling Air Force Base, Washington, DC: Prepared statement

    Rubin, Peter J., Visiting Professor of Law, Georgetown University Law Center: Prepared statement

    Stuart, Pamela B., Attorney at Law: Prepared statement

    Weich, Ronald H., Partner, Zuckerman, Spaeder, Goldstein, Taylor & Kolker: Prepared statement

APPENDIX
    Material submitted for the record

UNBORN VICTIMS OF VIOLENCE ACT OF 1999

WEDNESDAY, JULY 21, 1999

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
 Page 8       PREV PAGE       TOP OF DOC

    The subcommittee met, pursuant to call, at 1:39 p.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.

    Present: Representatives Lindsey O. Graham, Bob Goodlatte, Spencer Bachus, Asa Hutchinson, Henry J. Hyde, Bob Barr, William L. Jenkins, Melvin L. Watt, Jerrold Nadler, John Conyers, Jr., Maxine Waters, Barney Frank.

    Staff present: Cathleen Cleaver, Chief Counsel; Bradley S. Clanton, Counsel; Susana Gutierrez, Clerk; Anthony Foxx, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. CANADY. The subcommittee will be in order. This afternoon the Subcommittee on the Constitution convenes to hear testimony concerning H.R. 2436, the Unborn Victims of Violence Act of 1999.

    Under current Federal law, an individual who commits a Federal crime of violence against a pregnant woman receives no additional punishment for killing or injuring the woman's unborn child during the commission of that 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 crime has no legal consequence whatsoever.

    The Unborn Victims of Violence Act was designed to address this deficiency in the law by providing that an individual who injures or kills an unborn child during the commission of certain pre-defined violent Federal crimes may be punished for a separate offense.
 Page 9       PREV PAGE       TOP OF DOC

    By its own terms, the act does not apply to conduct relating to an abortion for which the consent of the pregnant woman has been obtained, or for which such consent is implied by law in a medical emergency. The act also does not permit prosecution of any person for any medical treatment of the pregnant woman or her unborn child, or of any woman with respect to her unborn child.

    The act further provides that the punishment for the offense against the unborn child will be the same punishment that would have been imposed under Federal law had that conduct resulted in the same injury to the mother. For example, if an individual assaults a Member of Congress in violation of 18 USC section 115 and, as a result of that assault, kills the Congresswoman's unborn child, the perpetrator may be punished for voluntary manslaughter for killing the unborn child, the same punishment the individual would have received had the Congresswoman died as a result of the assault.

    In that respect, the act is consistent with the well-settled criminal law doctrine of transferred intent, which provides that when an individual acts with the intent to harm one person, and during the course of the offense hurts another, the law considers the perpetrator to be just as guilty of harming the second as the first. Thus, if A shoots a gun at B with the intent to kill, and the bullet goes through a wall and kills C, A is guilty of murdering C.

    The Unborn Victims of Violence Act will enable prosecutors to bring to justice criminals like these: Reginald Anthony Falice, who on April 28, 1998, shot his 8 months pregnant wife, Ruth Croston, five times as she sat at a red light in Charlotte, North Carolina.
 Page 10       PREV PAGE       TOP OF DOC

    Falice was convicted by a Federal jury just last week for interstate domestic violence and using a firearm in the commission of a violent crime. But because Federal law does not currently recognize the unborn as victims, he received no additional punishment for killing the near-term infant.

    Or the terrorists who bombed the World Trade Center in New York killing Monica Smith, a pregnant secretary and her unborn child. Jurors at one trial of the perpetrators were told of the harm inflicted upon Ms. Smith's unborn child, but no additional punishment is provided under Federal law for the child's death.

    Or the criminals who planted a bomb just outside of Tammy Lynn Baker's apartment in Louisa, Virginia. Ms. Baker was near term with her unborn child when the bomb exploded on December 3, 1997, killing her and the child. The Bureau of Alcohol, Tobacco & Firearms is still investigating the bombing, but even if the perpetrators are found, they will receive no additional punishment for killing Ms. Baker's unborn child.

    A similar incident occurred in Connellsville, Pennsylvania on January 1, 1999 when Deanna Mitts, who was 7 months pregnant, returned home from a New Year's Eve celebration with her 3 year old daughter Kayla. A bomb exploded in the apartment killing Ms. Mitts, Kayla and the unborn child. Federal and local authorities are still looking for those responsible for this vicious crime, but even if the criminal is caught, he will not be punished for killing Ms. Mitts' unborn child.

    By enacting H.R. 2436, Congress will ensure that criminals who commit violent acts against pregnant women, such as those I have mentioned and others we will hear about from our witnesses today, are justly punished for injuring or killing those unborn children. Without the Unborn Victims of Violence Act, the crimes against these innocent victims will continue to go unpunished.
 Page 11       PREV PAGE       TOP OF DOC

    [The bill, H.R. 2436, follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 2436

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.
     
IN THE HOUSE OF REPRESENTATIVES
JULY 1, 1999
Mr. GRAHAM (for himself, Mr. SMITH of New Jersey, and Mr. CANADY of Florida) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
     
A BILL
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.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 Page 12       PREV PAGE       TOP OF DOC
SECTION 1. SHORT TITLE.
    This Act may be cited as the ''Unborn Victims of Violence Act of 1999''.
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.
''§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) 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, except that the death penalty shall not be imposed.
    ''(b) The provisions referred to in subsection (a) are the following:
    ''(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229A(a)(2), 242, 245, 247, 248, 351, 831, 844(d), (f), and (i), 924(j), 930, 1111, 1112, 1114, 1116, 1118, 1119, 1120, 1121, 1153(a), 1201(a), 1203(a), 1365(a), 1501, 1503, 1505, 1512, 1513, 1751, 1864, 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).
    ''(3) Section 202 of the Atomic Energy Act of 1954 (42 U.S.C. 2283).
 Page 13       PREV PAGE       TOP OF DOC
    ''(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 has been obtained or for which such consent is implied by law in a medical emergency;
    ''(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.''.
    (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:
''§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) The punishment for that separate offense is the same as the punishment provided for that conduct under this chapter had the injury or death occurred to the unborn child's mother, except that the death penalty shall not be imposed.
 Page 14       PREV PAGE       TOP OF DOC
    ''(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) Subsection (a) does not permit prosecution—
    ''(1) for conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency;
    ''(2) for conduct relating to 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.''.
    (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.''.

    Mr. CANADY. In conclusion, I would like to thank the gentleman from South Carolina, Mr. Graham, for his outstanding leadership on this bill. Mr. Graham is the prime sponsor of this legislation, and I want to extend my congratulations to him and my appreciation to him for the work that he has done on this important issue.

    I will yield back the balance of my time and recognize the gentleman from North Carolina.

 Page 15       PREV PAGE       TOP OF DOC
    [The statement of Mr. Canady follows:]

PREPARED STATEMENT OF HON. CHARLES CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

    This afternoon the Subcommittee on the Constitution convenes to hear testimony concerning H.R. 2436: The Unborn Victims of Violence Act of 1999.

    Under current federal law, an individual who commits a federal crime of violence against a pregnant woman receives no additional punishment for killing or injuring the woman's unborn child during the commission of that 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 crime has no legal consequence whatsoever.

    The Unborn Victims of Violence Act was designed to address this deficiency in the law by providing that an individual who injures or kills an unborn child during the commission of certain predefined violent federal crimes may be punished for a separate offense. By its own terms, the Act does not apply to ''conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency.'' The Act also does not permit prosecution ''of any person for any medical treatment of the pregnant woman or her unborn child,'' or ''of any woman with respect to her unborn child.''

    The Act further provides that the punishment for the separate offense will be the same punishment that would have been imposed under federal law had that conduct resulted in the same injury to the mother. For example, if an individual assaults a member of Congress in violation of 18 U.S.C. §115, and as a result of that assault kills the Congresswoman's unborn child, the perpetrator may be punished for voluntary manslaughter for killing the unborn child—the same punishment the individual would have received had the Congresswoman died as a result of the assault.
 Page 16       PREV PAGE       TOP OF DOC

    In that respect the Act is consistent with the well-settled criminal law doctrine of transferred intent, which provides that when an individual acts with the intent to harm one person, and during the course of the offense hurts another, the law considers the perpetrator to be just as guilty of harming the second as the first. Thus, if A shoots a gun at B with the intent to kill, and the bullet goes through a wall and kills C, A is guilty of murdering C.

    The Unborn Victims of Violence Act will enable prosecutors to justly punish criminals like Reginald Anthony Falice, who on April 28, 1998, shot his eight-months pregnant wife, Ruth Croston, five times as she sat at a red light in Charlotte, North Carolina. Falice was convicted by a federal jury just last week for interstate domestic violence and using a firearm in the commission of a violent crime, but because federal law does not currently recognize the unborn as victims, he received no additional punishment for killing the near-term infant.

    Or the terrorists who bombed the World Trade Center in New York, killing Monica Smith, a pregnant secretary, and her unborn child. Jurors at one trial of the perpetrators were told of the harm inflicted upon Ms. Smith's unborn child, but no additional punishment is provided under federal law for the child's death.

    Or the criminals who planted a bomb just outside of Tammy Lynn Baker's apartment in Louisa, Virginia. Ms. Baker was near term with her unborn child when the bomb exploded on December 3, 1997, killing her and the child. The Bureau of Alcohol, Tobacco & Firearms is still investigation the bombing, but even if the perpetrators are found they will receive no additional punishment for killing Ms. Baker's unborn child.
 Page 17       PREV PAGE       TOP OF DOC

    A similar incident occurred in Connellsville, Pennsylvania on January 1, 1999, when Deanna Mitts, who was eight months pregnant, returned home from a New Year's Eve celebration with her 3 year old daughter Kayla. A bomb exploded in the apartment, killing Ms. Mitts, Kayla, and the unborn child. Federal and local authorities are still looking for those responsible for this vicious crime, but even if the criminal is caught he will not be punished for killing Ms. Mitts' unborn child.

    By enacting H.R. 2436, Congress will ensure that criminals who commit violent acts against pregnant women, such as those I've mentioned and more we will hear about from our witnesses today, are justly punished for injuring or killing unborn children. Without the Unborn Victims of Violence Act, the crimes against these innocent victims will continue to go unpunished.

    Mr. NADLER. Mr. Chairman, before the opening statement I just want to ask, is it true, as I just heard, that a markup on this bill was scheduled for tomorrow morning so as to give nobody any time to think about the implications or the testimony here, which would render this entire hearing a farce?

    Mr. CANADY. The premise for the gentleman's question is a premise that I reject. This bill has, as the gentleman knows, been filed for some period of time. I think it was filed on July the 1st. It has been available, this hearing has been in the works. This is not a real complicated issue.

    Mr. NADLER. That remains to be seen.
 Page 18       PREV PAGE       TOP OF DOC

    Mr. CANADY. A markup has been scheduled. And the gentleman will have his opportunity in the opening statements, if he wishes, but he is now out of order. I will recognize the gentleman from North Carolina.

    Mr. WATT. Thank you, Mr. Chairman. I am coming to this hearing with an open mind, and I will try to keep an open mind throughout the hearing. But I would be less than candid with the chairman if I did express my dismay that we are having this hearing at the very same time, in the middle of a hearing that is going on in the full committee of the Judiciary Committee. We are a subcommittee of the Judiciary Committee, and I just absolutely think it is unseemly for us to be having a hearing while the full committee that we are a part of is having a hearing on a matter of importance also.

    Now, this is an important issue that Mr. Graham, I am sure, feels strongly about. Maybe I will feel strongly about it after I have heard all these witnesses. But interstate class actions is an important issue, too, important enough for the chair of the full committee to schedule a hearing of the entire Judiciary Committee on the issue. And it just seems to me that you all could do a better job of coordinating the schedule if there were any management or any thought going on about organizing these things.

    And then I would be less than candid if I wasn't equally as dismayed, especially given the wonderful relationship we have had, Mr. Chairman, up to this point, since I have been the ranking member of this subcommittee, to get a notice barely a few minutes before the 24 hour deadline that the rules require, scheduling this important bill, and I assume it is important. It has got to be important. Mr. Graham is a good friend of mine and I am sure he doesn't deal with unimportant legislation. It is about the life and death of people and children, it has got to be important legislation. But it is just absolutely unacceptable.
 Page 19       PREV PAGE       TOP OF DOC

    Now, you know, the chairman has known and we had this discussion before—well, at the same time or right after I became the ranking member of this subcommittee, in which I was very blunt with the chairman, and I said to him, we can either get along and cooperate with each other, or we can confront each other. The history of the whole subcommittee up to this point has been what he said to me at that point was his preference, so much so that we have joked about the 1 day that I had to be out of town and somebody else came in and the hearing deteriorated into just an absolute confrontational battle about an issue that it shouldn't have been about.

    Now, I want to cooperate with the chairman, and I am going to say it again publicly, we can either run this committee in cooperative fashion and in an effort to get along, or we can run it in a confrontational fashion, and that choice is yours. I am saying it publicly here so that everybody understands what my preference is. But it is unreasonable to expect members of this subcommittee, who sit as members of the full Judiciary Committee first and paramount before they sit on any subcommittee, to be in two places at one time. The only person I knew who could do that was my senior law partner. He professed to be able to be in three or four different places at one time. I never learned that. Even if one of the hearing rooms is right downstairs and one of them is upstairs, that is unreasonable.

    And it is also in my judgment unreasonable to observe just the letter of the rule about the scheduling of markups. I presume this bill isn't going anywhere before we break for the August recess. Maybe it will be on the full committee agenda on Friday of this week, and on the floor of the House next week. But if this is serious legislation, and if it is important legislation, it deserves not to have that kind of treatment. And I think Mr. Graham deserves not to have that kind of treatment as the primary sponsor of this bill.
 Page 20       PREV PAGE       TOP OF DOC

    I will yield back.

    Mr. CANADY. If the gentleman would yield to me.

    Mr. WATT. I would be happy to yield to the chairman.

    Mr. CANADY. Let me express to the gentleman that I have valued the good working relationship we have had on the subcommittee, and I appreciate the gentleman's perspective on this. I can't tell the gentleman that we would adopt a policy where the subcommittee would never meet when the full committee is having a hearing. That has never been the policy of the Judiciary Committee so long as I have been a member. I don't think that has been the policy during the Republican control of the committee, and it wasn't the policy, to my knowledge, when the Democrats controlled the committee.

    I like to avoid those kind of conflicts. We have many different sorts of conflicts around here with scheduling. I am a member of two other subcommittees of the Judiciary Committee and, frequently, it is just in the nature of things that we may have a hearing here while there is even a markup going on in another subcommittee of which I am a member. Well, that sometimes creates a problem, and we try to work through those things.

    It is my goal to minimize those sorts of conflicts, and I understand the gentleman's concern about that. But I don't think that the gentleman should interpret that, the fact that we might have this conflict at this point with the schedule, to be an indication that we are not wanting to work with the gentleman. I want to work with the gentleman.
 Page 21       PREV PAGE       TOP OF DOC

    Now, as to the scheduling of the markup, again, we are complying with the rules there. It is not at unusual for bills to be marked up.

    Without objection, the gentleman will have 2 additional minutes and I will go on.

    Mr. WATT. I will continue to yield to the gentleman.

    Mr. CANADY. It is not unusual for bills to be marked up after 24 hours notice. One of the things that I have attempted to do as chairman of this subcommittee is to, whenever possible, make certain that we do have a subcommittee markup. I think if the gentleman will look back over the years, in the past it was not at all infrequent for bills to be taken directly to the full committee with no opportunity for the subcommittee to mark up the bill.

    And I think if the gentleman will look at the record of this subcommittee since I have been chairman, he will see that with very few exceptions, we have conducted subcommittee markups, because I believe that is an important part of the process and members at the subcommittee level can help refine legislation and we can avoid problems at the full committee if we have that opportunity.

    But to say that we are not willing to work with you because we followed the schedule established in the rule by giving 24 hours notice, I regret.

    Now, was it my preference for this subcommittee to be as busy this week as the subcommittee has been? No. But we have certain items of legislation that we are attempting to move forward. The days of this Congress for this year, quite frankly, are numbered. We are getting down to not that many legislative days, not that many days for the full committee to be meeting and considering legislation, and we are trying to move some things forward.
 Page 22       PREV PAGE       TOP OF DOC

    Again, I have the greatest respect for the gentleman from North Carolina, and I hope the gentleman understands and appreciates that. We try to work with the gentleman, and I don't want to make big deal out of this, I have not until very late today seen any of the testimony from any of the witnesses that the gentleman asked us to invite. That is a violation of the rule.

    Mr. WATT. Mr. Chairman, I ask unanimous consent for two additional minutes, and I will continue to yield to you briefly, but I do want to have the last work on that time.

    Mr. CANADY. That is fair. That is fair enough. I have got no problem with that, this is your time. But that is something that we try to work with, and I understand that the pressure of time will result in that sort of thing happening from time to time, and we go forward with the hearing and accept the witnesses even though they have not complied with the rule, even though we have provided our testimony from our witnesses, at least most of them, I think, to your staff.

    So, we want to work with you. We may end up having a difference of opinion on this, but that is the way it goes. And I just wanted to make that clear. But let me finally say that it is my goal to avoid the kind of conflicts that exist today with the full committee. Sometimes it is just not possible. But I can assure the gentleman that when we can avoid such conflicts with the schedule of the full committee or, for that matter, other subcommittees on which members of this committee sit, when we can do that, we will strive to do that. Unfortunately, it is not always possible.
 Page 23       PREV PAGE       TOP OF DOC

    I thank the gentleman for yielding that time to me.

    Mr. WATT. I reclaim my time just to make this response. First of all, I am uncomfortable hearing our dirty, internal committee linen among the public here in plain view, but we will take this up probably sometime in private—not physically. [Laughter.]

    Mr. WATT. This is not an invitation for the gentleman to step out the door. Don't get me wrong. It will be handled gracefully.

    But I want to respond quickly to three points that you made. Number one, this notion that because something was done like this years ago, we are going to continue to do it like this, I think is unfortunate.

    I ask unanimous consent for one additional minute.

    Mr. CANADY. The gentleman will have one additional minute.

    Mr. WATT. My own personal history is I was here in the majority only 2 years, and being a freshman during that 2 year period I felt like I was in the minority anyway, so I never got ingrained in whatever processes were going on, so I take neither credit for, nor responsibility for what the practices were. What I am trying to do is have a working relationship with the chairman.

    Second, the notion that your side, which has been preparing for a hearing without our knowledge, possibly because you know what the agenda is going to be, can give us the testimony of your witnesses who you may have selected weeks ago, when we didn't find out about this hearing until late last Thursday, and then we have to identify our witnesses, go and try to figure out who can come, and then they have to get into the process of preparing their testimony.
 Page 24       PREV PAGE       TOP OF DOC

    I mean, sure, we are going to try to comply with the rules, but you have got to understand that we are somewhat at a disadvantage.

    Third, this notion that because we get something a few minutes before the rules deadline, we are in compliance with the rules. I acknowledge that you are in compliance with the rules. That is true, you are in compliance with the letter of the rule. But the letter of the rule also says that I could require every bill that comes before this Constitution Subcommittee, and every bill that comes before the full Judiciary Committee to be read in full. Wouldn't be a thing that the opposing side could do about it, not even a unanimous consent request, not even a vote could deny me that right. But there are certain protocols that we observe in this place. If we did everything according to the rules, this place would come to a screeching halt, and you know it, and I know it.

    Now, all I am asking is for you to observe not only the letter of the rule but the spirit of the rule. If we are talking about the letter of the rule and you want me to start complying with the letter of the rule, that is fine, just give me the notice. But if we are talking about cooperating and complying with the spirit of collegiality, for which we had this picnic just this week, and this retreat, then that is the side I would rather be on. I am saying it publicly, I said it to you privately, and I hope that this is not an indication that you have opted, after we made an original agreement for the latter form.

    And I will yield back.

    Mr. CANADY. The House has a series of votes that are now taking place. There will be a 15 minute vote and a 5-minute vote. So the subcommittee will now stand in recess for the purpose of the members going to the floor to vote. We will then come back and continue with opening statements.
 Page 25       PREV PAGE       TOP OF DOC

    I apologize to the witnesses for the delay in the start of the proceedings, but we will come back and move forward with the hearing. The gentleman from North Carolina and I will discuss this as we walk over to the floor. Thank you.

    Mr. WATT. In a friendly fashion, I might add.

    Mr. CANADY. In a friendly fashion. The subcommittee will stand in recess.

    [Recess.]

    Mr. CANADY. The subcommittee will be in order, and the gentleman from South Carolina, Mr. Graham, is recognized for 5 minutes.

    Mr. GRAHAM. Thank you, Mr. Chairman. For all of us that are wondering, I followed the chairman and Mr. Watt and everything went very well. They had a nice talk. I am on three committees and about a half a dozen subcommittees, and I would just like to publicly say that day-in and day-out, I think this subcommittee gets along very well on both sides of the aisle, and I know that sometimes that is hard to do.

    I want to thank you, Mr. Chairman, for helping me and my staff and people that are interested in this issue draft this bill and spend a lot of time and attention helping us, I think, bring to the table something that should unite a lot of Americans.

 Page 26       PREV PAGE       TOP OF DOC
    Protecting the unborn is certainly not a new idea. In fact, about half the States, Mr. Chairman, have statutes or judicial decisions that criminalize behavior that harms or kills unborn children. In South Carolina, we have a statute that protects unborn children against the negligent or criminal activity of the mother herself. Unfortunately, Federal law is silent on the matter and whether that is by lack of will or mere oversight, I believe it is time we add this important protection on the Federal level.

    An important point which should not be lost during this debate is that the legislation is not about abortion. There are many members who are pro-life and pro-choice and I hope we can come together, just praising Mr. Watt, I continue to do so in his presence, we are good friends, and we have a different view probably of the abortion issue. But I hope this is a bill, Mr. Chairman, that people, regardless of their view on abortion, can come together and say this is good public policy. It is good public policy because this bill is about violence against women, violence against the unborn and holding violent criminals accountable.

    In this legislation, I have tried to strike a delicate balance between protecting the unborn in utero, while not wandering into the divisive, highly charged, emotional background called abortion battleground. My interest lies in protecting women, protecting the unborn and holding criminals accountable, not sparking a political and ideological fight which will not be settled by this Congress.

    Under the legislation, a woman's ability to obtain an abortion is not affected. The bill specifically states that prosecutions are not permitted for conduct relating to an abortion for which the consent of the pregnant woman has been obtained, or for which such consent is implied by law in a medical emergency. Medical professionals are not covered by this bill in terms of prosecution. As a matter of fact, medical professionals are specifically exempted from criminal liability if problems arise during the pregnancy.
 Page 27       PREV PAGE       TOP OF DOC

    The bill states that, ''Nothing in this section shall be construed to permit the prosecution of any person for any medical treatment of the pregnant woman or her unborn child.'' Women themselves cannot be held criminally liable for problems which arise during pregnancy. The bill states, ''Nothing in this section shall be construed to permit the prosecution of any woman with respect to her unborn child.'' This is about criminals and criminal activity against women and unborn children.

    Federal law does not supersede State law. The death penalty does not apply in this case. Only criminals who commit already defined Federal crimes of violence, the Oklahoma City bombing is an example, may be charged with a second offense on behalf of the second victim, the unborn child. The bill states that 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 an unborn child's mother, except that the death penalty shall not be imposed, and the chairman alluded to that a while ago.

    While no piece of legislation is perfect, those who do have an open mind, and I believe Mr. Watt does, I would love to talk with you about any improvements you think we can make, but I hope, I really do hope as we conclude this century, that pro-life and pro-choice people can agree on one basic concept, that if a criminal attacks a mother, harms or destroys the child, that they should be prosecuted separately.

    I yield back the balance of my time.

    [The statement of Rep. Lindsey Graham follows.]
 Page 28       PREV PAGE       TOP OF DOC

PREPARED STATEMENT OF HON. LINDSEY GRAHAM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA

    Thank you Mr. Chairman for calling this hearing on this important matter. I appreciate your support in drafting the legislation, H.R. 2436, the Unborn Victims of Violence Act.

    Protecting the unborn is not a new idea. In fact, about half the states have statutes or judicial decisions that criminalize behavior that harms or kills unborn children. Unfortunately, federal law is silent on the matter. Whether that is by lack of will or mere oversight, it's time we add this important protection on the federal level.

    An important point which should not be lost during the debate is that this legislation is not about abortion. It's about violence against women, violence against the unborn, and holding violent criminals accountable.

    In this legislation, I've tried to strike a delicate balance between protecting the unborn 'in utero' while not wandering into the divisive, highly-charged, emotional battleground of abortion. My interest lies in protecting women, protecting the unborn and holding criminals accountable—not sparking a political and ideological fight which will not be settled by this Congress.

    Under my legislation:

 Page 29       PREV PAGE       TOP OF DOC
  A woman's ability to obtain an abortion is not affected. The bill specifically states that prosecutions are not permitted ''for conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency.''

  Medical professionals are specifically exempted from criminal liability if problems arise during pregnancy. The bill states, ''Nothing in this section shall be construed to permit the prosecution of any person for any medical treatment of the pregnant woman or her unborn child.''

  The woman cannot be held criminally liable for problems which arise during pregnancy. The bill states, ''Nothing in this section shall be construed to permit the prosecution of any woman with respect to her unborn child.''

  Federal law does not supersede state law and the federal death penalty is not expanded. Only criminals who commit an already-defined federal crime of violence (e.g. Oklahoma City bombing) may be charged with a second offense on behalf of the second victim, the unborn child. The bill states ''The punishment for that separate offense is the same as punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother, except that the death penalty shall not be imposed.''

    While no piece of legislation is perfect, this bill is a reasoned approach to protecting the unborn.

    Again, I would like to thank Chairman Canady for holding this hearing, all the supporters of the bill and the witnesses who are here today to share their stories and opinions on the legislation.
 Page 30       PREV PAGE       TOP OF DOC

    Mr. CANADY. Thank you. Other members wishing to make an opening statement?

    Mr. CONYERS. Mr. Chairman, may I be recognized?

    Mr. CANADY. The gentleman from Michigan is recognized for 5 minutes.

    Mr. CONYERS. Thank you very much. There are at least two questions procedurally that I want to raise. The first is that here in the Constitution Subcommittee we are considering a bill that would amend the criminal code, and I find that highly unusual. I question whether this bill was appropriately referred to the correct committee.

    Now, with reference to the presence of Colonel Roberts, I just lately found out that there has been a lot of discussion about that back and forth, even to include the discussion of the issuance of a subpoena. I need to find out who Colonel Roberts is representing. I understand that the Pentagon policy is not to send over an officer of your rank that does not represent the military view, and I question Colonel Roberts' inclusion on this panel as a witness in the first instance, but I will investigate that further.

    Now, to not realize that this bill is a transparent attempt to disaggregate the interests of the fetus from those of the motion is rather, I think, missing the point. By identifying the fetus rather than the woman as the locus of the injury when there is no live birth, this legislation constitutes a very dangerous conceptual move. This form of legal recognition has the potential to create, obviously, future expansion of fetal rights in a way that conflict with women's interests. It is obvious, it is simple, it is undeniable.
 Page 31       PREV PAGE       TOP OF DOC

    There can be no argument that a pregnant woman and her fetus should be both protected from criminal attack through the aggressive use of our criminal laws. But I noticed that I have been trying to get my measure, the Violence Against Women Act, H.R. 357, before a hearing in the proper subcommittee, which expands protection for women against callous acts of violence regardless of their pregnancy status, and I notice it is not doing very well.

    And, so, a majority of States have statutes or decisions in court that allow criminal prosecution or sentencing enhancement for causing death or injury to a fetus. Holding third parties responsible for the negligent or criminal destruction of fetuses is consistent with, and even enhances the protection of pregnant women's interests.

    However, this may not be the intent of this legislation for the bill would change subtle lines of precedent where law recognizes the fetus only in those cases where it is necessary to protect the interests of the subsequently born child and her or his parent. Rather, this legislation confers rights upon the fetus as fetus. Conceptualizing the fetus as an entity with legal rights independent of the pregnant woman makes it possible to create future fetal rights which could be used against the pregnant woman, and maybe this is another intent of this bill.

    The creation of fetal rights that can be used to the detriment of pregnant women is a recent but growing phenomenon. Absent an increased awareness of the costs to women's autonomy, these rights will almost certainly continue to expand. Given the fetus' complete physical dependence and inter-relatedness with the body of the woman, virtually every act of the pregnant woman has some effect on the fetus. A woman could be held civilly or criminally liable for fetus injuries caused by accidents resulting from maternal negligence such as an automobile or household accident.
 Page 32       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.

    Mr. CONYERS. Thank you, Mr. Chairman. I will try not to use the whole 2 minutes.

    She could be held liable for any behavior during her pregnancy having potential adverse effects on her fetus, including failing to eat properly or using prescriptions or illegal drugs, smoking, drinking, exposing herself to infectious disease or to work place hazards, or even using general anesthetic or drugs to induce rapid labor during delivery. Indeed, we have already seen some of these measures introduced at the State level, and if the trend continues, pregnant women will live in fear that any accident or error in judgment could be deemed unacceptable and become the basis for a criminal prosecution.

    Perhaps the most foreboding aspect of allowing increased State involvement in this subject in the name of the fetus, is that the State may impose direct injunctive regulation of women's actions. So I feel that the welfare of the unborn can not be separated from that of the mother. If you care about protecting the fetus, you must care about protecting the mother. This bill does not enhance the welfare of mothers, rather it creates a climate of intrusive Government intervention in a matter that is, I think, utterly private.

    I thank the chairman for the additional time.

    Mr. CANADY. Thank you, Mr. Conyers.
 Page 33       PREV PAGE       TOP OF DOC

    Other members wishing to make an opening statement? The gentleman from New York is recognized for 5 minutes.

    Mr. NADLER. Thank you. First, Mr. Chairman, let me repeat what I started saying before, and which you, sir, answered but not responsively. Yes, this bill has been in print for about 2 weeks. This hearing was noticed yesterday apparently. The markup is tomorrow morning. This hearing is a sham, not because of the lack of notice of the hearing, we got the witnesses here and the members are here, but because of what happens with the result of the hearing.

    The point of a hearing is to have witnesses and the members discuss the merits of a bill, the potential problems, drafting errors, unanticipated problems, and then to give the members and staff the opportunity and the time to review the testimony of the witnesses, to confer with each other, and to make changes, if necessary, in the bill, which, of course, can't happen between tonight and tomorrow morning.

    The normal practice is that a hearing happens a week at least before the markup. Obviously, the intent is to ram this bill through the subcommittee tomorrow morning, and I fail to see why we are wasting our time or the time of the witnesses, since everything they say is irrelevant, since the bill is going to be pushed through the subcommittee tomorrow morning. So why are we wasting that time?

    That was my protest. The fact that the bill has been in print for several weeks, so what? This hearing is still a sham because we are going through the motions, and we will be very polite, and we will listen to what they say, and we will ask them questions, they will give us answers, and then we will ram the bill through the subcommittee tomorrow morning as written. What is the point of the hearing? The answer is to make it look proper, as if we are just going through the motions. So I will go through the motions, at least as far as an opening statement.
 Page 34       PREV PAGE       TOP OF DOC

    Mr. Chairman, I strongly oppose the bill in front of us today, H.R. 2346, the Unborn Victims of Violence Act of 1999. The bill is an attempt to undermine the Roe v. Wade decision and to thwart a woman's right to safe and legal abortion services.

    Since time immemorial the law has recognized that you can damage a fetus and pay damages for this. The Bible in Exodus says that if you assault a woman or a man and you kill them, there is a death penalty, but if you assault a woman and she, therefore, suffers a miscarriage, you pay monetary damages. They didn't have jails in those days. You pay monetary damages, it is not the same as killing a person.

    If the goal here is to enhance penalties and to say that we really ought to recognize that there is a real interest in the potential life of the fetus, and that people suffer when you damage the fetus, the parents suffer if, God forbid, the fetus dies as a result of an assault. The fetus suffers, or the person who results from the fetus suffers if, God forbid, because of an assault, the person is born with birth defects or with other damage later.

    There is real interest in preventing that, obviously. There ought to be criminal penalties for that. There ought to be tortious penalties, as there are. The law has recognized tort penalties for many years. It is easy to do that, we could expand the Violence Against Women Act. Mr. Conyers has the Violence Against Women Act II, which would do this. We could do that without our upending our entire tradition of common and statutory law by suddenly recognizing a fetus as a person and saying that for purposes of the statute, the penalties are exactly the same as for a born person.

 Page 35       PREV PAGE       TOP OF DOC
    Now, this bill, which I just saw for the first time last night, which says that, ''Whoever engaged in conduct that violates any of the provisions of law listed in Subsection (b),'' and then lists a long series of sections, and unless you have the cross-reference to know what you are talking about, which I don't happen to have with me, and which the committee hasn't thoughtfully provided, I don't know what you are talking about, but I assume it is a lot of criminal sections.

    But it raises a lot of questions. What if you didn't know the person was pregnant? How do you guarantee that the person was pregnant? Now, does this mean that you have the same punishment for a zygote as for an eighth term or ninth term pregnancy, that seems to go against the traditions of the law, against common sense and, frankly, against, I think, any concept of proper weight in punishment or in justice.

    Secondly, I would raise other questions, which may or may not be answered by this list of sections.

    Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.

    Mr. NADLER. Thank you, Mr. Chairman. But, of course, that is a mystery since we don't know what these sections are.

    But, for example, are you guilty of manslaughter? Is the mother guilty of criminally negligent homicide because she is 3 months pregnant, plays in a soccer game and suffers a miscarriage? Is the employer guilty of criminally negligent homicide because the mother or the woman, she is not a mother yet, the woman works at a textile machine in a textile factory, and he knew or should have known she was pregnant, and she worked at this work and the employer let her work at it, and she suffered a miscarriage, and now, since you are treating the fetus as a person, that is homicide, or criminal manslaughter, at the least?
 Page 36       PREV PAGE       TOP OF DOC

    Are we now going to go down the road of telling women that the woman is guilty of homicide if she drinks too much alcohol, or takes some drugs or does some other thing and the result is that the fetus is injured or the fetus dies? Are we now going to start imposing tremendous limits on the conduct of a woman in terms of acts that would otherwise be legal, but because of the impact on the fetus, are now going to be criminally actionable? We are going to say that women, for the 9 months they are pregnant, are not free human beings, they are held within very tight limits of their activity under penalty of criminal law?

    This is the road we start traveling down when we say that the fetus is recognized as a person and anyone who damages it is punished in exactly the same way.

    Now, the real motive behind the bill, obviously, it is transparent, is to undermine Roe v. Wade and perhaps to start putting women in a tight net of restrictions. But that legislation, frankly, is more worthy of an Iranian legislature than of this Congress.

    I yield back the balance of my time.

    Mr. CANADY. Thank you. The gentleman from Arkansas, Mr. Hutchinson, is now recognized for 5 minutes.

    Mr. HUTCHINSON. Thank you, Mr. Chairman. And I am anxious to hear these witnesses, but I just wanted to respond to the gentleman from New York who expressed some concern about the hearing. I just wanted to assure the witnesses and express my view that this hearing is very important, that if and when this legislation is marked up, that I am interested in any drafting problems. I am interested in any difficulties that might be alerted, and, certainly, that is the purpose of a markup is to offer amendments which would improve or correct the legislation. Also, it helps us determine how to vote on the issue. And I guess we all come in here with the view that we have an inclination for or against, but I don't think anything is locked solid.
 Page 37       PREV PAGE       TOP OF DOC

    Now, the gentleman from New York indicated he is opposed to the legislation, but this hearing is important to me and I just wanted to assure the witnesses that this is critical to our moving toward considering this legislation fairly, determining how to consider it, as well as how to amend it if necessary. And so I want to thank the witnesses for being here, and I yield back the balance of my time.

    Mr. CANADY. I thank the gentleman from Arkansas.

    The gentleman from North Carolina has suggested, due to the fact that we have been delayed here, and I think it is a good idea, that we combine the first and the second panel. This may take us a moment to reconfigure, but out of respect for the time of the folks on the second panel, I think that will ensure that everybody can meet their time to catch planes and so on. Again, I apologize for not getting to the witnesses a little sooner, but sometimes that happens. And I want to thank all the witnesses for being here.

    So we will take a recess, subject to the call of the Chair, within about 2 minutes, or a minute and a half while the additional table is brought forward and the witnesses are rearranged slightly.

    The subcommittee will stand in recess for just a moment.

    [Recess.]

    Mr. CANADY. The subcommittee will be in order. This afternoon we will first hear testimony from Michael Lenz of Choctaw, Oklahoma, who will share his own personal experience in losing his wife and child in the bombing of the Murrah Federal Building in Oklahoma City.
 Page 38       PREV PAGE       TOP OF DOC

    Following Mr. Lenz will be Lt. Colonel Keith L. Roberts, who is the Deputy Chief, Military Justice Division for the Air Force Legal Services Agency at Bolling Air Force Base in Washington, D.C. Lt. Colonel Roberts has also served as Military Judge for the Air Force Legal Services Agency on the Eastern Judicial Circuit at Bolling Air Force Base, and worked as a Staff Judge Advocate for the Air Force Reserve Office Training Corps at Maxwell Air Force Base in Alabama, the 384th Bombardment Wing at McConnell Air Force Base in Kansas, and for the Joint Task Force 160 at Guantanamo Bay, Cuba.

    We will also hear testimony from Pamela B. Stuart, an attorney currently practicing civil and white collar criminal trial law. Ms. Stuart has also worked as a Senior Trial Attorney in the Office of Internal Affairs in the U.S. Department of Justice, and has also served as an Assistant United States Attorney in the U.S. Attorney's Office for the District of Columbia.

    The subcommittee will also receive testimony from Ronald Weich, a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker. Mr. Weich, an expert on Federal sentencing policy, has served as General Counsel to the Labor and Human Resources Committee in the United States Senate and as Chief Counsel for the Senate Judiciary Committee under Senator Kennedy. He was recently elected to serve on the Criminal Justice Council for the American Bar Association.

    Next, we will hear from Judge Terry M. Dempsey, a District Court Judge in the 5th Judicial District in St. James, Minnesota. Judge Dempsey sits on the Board of Judicial Standards and is a former member of the Minnesota House of Representatives where he served as minority leader from 1991 to 1992. He also practices law with the law firm of Thompson, Dempsey and Shea, and has worked as a 5th Judicial District public defender.
 Page 39       PREV PAGE       TOP OF DOC

    Next, we will hear from Hadley Arkes, who is the Edward Ney Professor of Jurisprudence in American Institutions at Amherst College. He has been teaching there for 33 years and has also visited on leave from Amherst at the Brookings Institution, the Woodrow Wilson Center at the Smithsonian Institution and Georgetown University. Professor Arkes has written several books and numerous articles on political philosophy, public policy and constitutional law.

    Following him will be Juley Anna Fulcher, who is currently the Public Policy Director for the National Council Against Domestic Violence. Ms. Fulcher has also been a visiting professor to the Georgetown University Law Center, Domestic Violence Clinic, and has served as a consultant to the National Organization for Women, Legal Defense and Education Fund in the area of violence against women.

    Also giving testimony will be Peter J. Rubin, a Visiting Professor of Law at Georgetown University Law Center. Professor Rubin has served as an attorney specializing in constitutional law, representing such clients as the Employee Assistance Professionals Association and Planned Parenthood in the U.S. Supreme Court. He has also worked as a clerk to U.S. Supreme Court Justice David H. Souter.

    Finally, testifying today will be Gerard Bradley, who is currently a Professor at Notre Dame Law School, teaching courses in legal philosophy, constitutional theory, first amendment, trial advocacy and legal ethics. Professor Bradley has also taught at the University of Illinois College of Law and served as an Assistant District Attorney in the Trial Division in New York Country. Professor Bradley has written extensively on constitutional law and legal philosophy.
 Page 40       PREV PAGE       TOP OF DOC

    I want to thank all of you for being with us here this afternoon. I would ask that you please summarize your testimony in 5 minutes or less. Observe the light, when it is green, there is time remaining. When it is red, the time has expired. I don't think we are going to insist on strict observance of the 5 minutes, but due to the lateness of the hour, please do your best to summarize in 5 minutes. And without objection, your full written statements will be made a part of the permanent record of this hearing.

    We will now go to our first witness, Mr. Lenz.

STATEMENT OF MICHAEL LENZ, CHOCTAW, OK

    Mr. LENZ. Thank you, Mr. Chairman, members of the subcommittee. I would like to give you some background on myself and my late wife, Carrie Lenz.

    We met in the spring of 1986, I had recently moved from the city of Tulsa to Oklahoma City. Carrie was a high school senior at Moore, Oklahoma. We began dating, she graduated high school and went on to college, and I took a job back in Tulsa and then in Ponca City. All the way we maintained our relationship.

    I eventually took a job that required extensive travel around the country, and although it was difficult at times, our long distance relationship worked because we were both committed to the same ideas and goals. Our plan, first, she would graduate from college, I would get promoted over the State of Oklahoma, then we would get married, and when we thought we were mentally and financially prepared, we would have children.
 Page 41       PREV PAGE       TOP OF DOC

    While Carrie was attending college, she took a part-time position with the Bureau of Alcohol, Tobacco & Firearms under the ''stay in school'' program. As the Oklahoma City ATF office grew, their need for a full-time position grew as well. Carrie then transferred to a position with the U.S. Secret Service Administration under the same program until she graduated from college.

    After graduation she accepted a position with the Drug Enforcement Administration through EBON, a company contracted with the Department of Justice to assist in the Asset Forfeiture Program.

    Since her first job with Federal law enforcement, Carrie was always extremely proud to be a part, albeit it a small part, of our Government. Our plans all came together in the fall of 1991 when we were finally married. Married, yes. Financially ready to raise a family? No, not yet. That didn't come until 1993. Seven years after we first met we believed we were finally ready to start our family.

    I am telling you all of this to give you some background on our relationship and our goals, and maybe give you some insight on what it might be like to have a 7-year plan blown up in your face. We began trying to have children in 1993. After several months with no success, we sought assistance from a fertility doctor who put Carrie on some medication and we continued our efforts at beginning a family. With no success, in early 1994 the doctor recommended exploratory surgery, which she underwent.

    A few months later she informed me that she was pregnant. We were so thrilled. But our excitement would not last long. With weekly monitoring, the doctor discovered that Carrie had an ectopic pregnancy and that the fetus had died. In November of that same year, Carrie again informed me that she was pregnant, and we both prayed that this would prove a better pregnancy than the first. The doctor confirmed our hopes by telling us everything appeared to be healthy and normal at our first ultrasound.
 Page 42       PREV PAGE       TOP OF DOC

    In the months that followed, we prepared our home for the new baby. We purchased a changing table, a baby bed, and Carrie was trying to get the nursery ready when we decided it would be easier if we knew the sex of our child. We didn't have a set name if the child was a girl, but if we were having a boy, we had both agreed that his name would be Michael James Lenz, III. So on the afternoon of April 18, 1995, we met at the hospital for an additional ultrasound to determine the sex of our baby.

    Carrie was so nervous, as I held her hand, the pictures on the monitor came into view, the little heartbeat, a little hand, an arm, and then you could see the face of our child. Finally, the baby moved a little and the nurse said, congratulations, you are having a baby boy.

    We looked at each other simultaneously, Michael James Lenz, III. He had his name. Then with a kiss and ''I love you,'' I left the room. We were so happy we even paid for extra ultrasound pictures so we could show them off at work the next day.

    When we arrived home that evening we called all of our friends and relatives to tell them the news. We didn't know it at that time, but that would be last time Carrie spoke to the people she loved most. The next morning, Carrie, who was usually 15 to 20 minutes late for work, left the house early to show everyone the pictures at work of our son Michael.

    I left for work around 8:30 that morning a happy, expectant father of my first child, my son Michael. At 9:02 a.m. on April 19, 1995, it all shattered when the Alfred P. Murrah Building was blown up. A 7-year plan gone, just blown up. At 9:03 that morning I was no longer an expecting father or a husband. At 28 years old, I was a widower.
 Page 43       PREV PAGE       TOP OF DOC

    I don't care to go into the details of what happened to me in the months following the bombing, but please ask yourself, would having a part of your loved one in the form of a child make your grieving easier? I think it would. Therefore, the loss of that potential life is worth an immeasurable amount to me.

    Let us say for the sake of argument that Carrie was not killed by that act of violence, but that shrapnel entered the womb and killed Michael. Is it safe to assume that would have an ill effect on her child-bearing capacity not only physically but emotionally for the rest of her life? I am not a doctor, but I think it would. In this scenario, a 7-year plan is still gone and possibly any future plans.

    Should we as a people allow that act of violence 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 died 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 actions to gain that life. A violent criminal act that result in the death of a potential life is worth prosecution on its own merits, regardless of the other counts against the defendant.

    As the only survivor of a family of three, in my case it would only be right. Regardless of your vote on this, in my mind 171 people lost their lives that day, and three daddies-to-be became widowers. Thank you very much for your time.
 Page 44       PREV PAGE       TOP OF DOC

    [The statement of Mr. Lenz follows:]

PREPARED STATEMENT OF MICHAEL LENZ, CHOCTAW, OK

    Committee members, I would like to give you some background on myself and my late wife Carrie Lenz.

    We met in the spring of 1986. I had recently moved from the City of Tulsa to Oklahoma City. Carrie was a high school senior at Moore, OK. We began dating, she graduated high school and went on to College, and I took a job back in Tulsa and then in Ponca City. All the while, we maintained our relationship. I eventually took a job that required extensive travel around the country, and although it was difficult at times, our long distance relationship worked because we were both committed to the same ideas and goals. (Our plan) First, she would graduate from college. I would get promoted over the State of Oklahoma. Then we would get married, and when we thought we were mentally and financially prepared, we would have children.

    While Carrie was attending college, she took a part time position with the Alcohol, Tobacco and Firearms under the ''Stay in School'' program. As the Oklahoma City ATF office grew, their need for a full time position grew as well. Carrie then transferred to a position with the U.S. Secret Service Administration under the same program until she graduated from college. After graduation, she accepted a position with the Drug Enforcement Administration through EBON, a company contracted with the Department of Justice to assist in the Asset Forfeiture program. Since her first job with Federal Law Enforcement, Carrie and I were always extremely proud to be a part, albeit a small part, of our government.
 Page 45       PREV PAGE       TOP OF DOC

    Our plans all came together in the fall of 1991 (September 14) when we were finally married. Married...Yes. Financially ready to raise a family? Not Yet. That didn't come until 1993. Seven years after we first met, we believed we were finally ready to start our family.

    I'm telling you all of this to give you some background on our relationship and our goals, and maybe to give you some insight on what it might be like to have a seven-year plan blown up in your face.

    We began trying to have children 1993. After several months with no success, we sought assistance from a fertility doctor who put Carrie on some medication, and we continued our efforts at beginning a family. With no success, in early 1994 the doctor recommended exploratory surgery, which she under went. A few months later, she informed me that she was pregnant. We were so thrilled, but our excitement would not last long. With weekly monitoring, the doctor discovered Carrie had an ectopic pregnancy and that the fetus had died. In November of that same year, Carrie again informed me that she was pregnant, and we both prayed that this would prove a better pregnancy than the first. The doctor confirmed our hopes by telling us everything appeared to be healthy and normal at our first ultrasound.

    In the months that followed, we prepared our home for the new baby. We purchased a changing table and baby bed, and Carrie was trying to get the nursery ready when we decided it would be easier if we knew the sex of our child. We didn't have a set name if the child was a girl, but if we were having a boy, we had both agreed his name would be Michael James Lenz, III. So on the afternoon of April 18, 1995, we met at the hospital for an additional ultrasound to determine the sex of our baby. Carrie was so nervous. As I held her hand, the pictures on the monitor came into view. The heart beat, a little hand and arm, and then you could see the face of our child. Finally the baby moved a little, and the nurse said ''Congratulations! You're having a boy!'' We looked at each other and said simultaneously, ''Michael James Lenz, III.'' He had his name. Then, with a kiss and ''I Love You,'' I left the room. We were so happy we even paid for extra ultrasound pictures to show off. When we arrived home that evening, we called all of our friends and relatives to tell them the news. We didn't know it at the time, but that would be the last time Carrie spoke to the people she loved most.
 Page 46       PREV PAGE       TOP OF DOC

    The next the morning Carrie, who was usually 15 to 20 minutes late to work, left the house early to show everyone at work the pictures of our son, Michael. I left for work at about 8:30 that morning, a happy, expectant father of my first child . . . my son . . . Michael. At 9:02 A.M. on April 19, 1995, it all shattered, when the Alfred P. Murrah Federal Building was blown up. A seven-year plan, gone. Just Blown up. At 9:03 A.M. that morning I was no longer an expecting father or husband. At 28 years old, I was a widower.

    I don't care to go into the details of what happened to me in the months followings the bombing, but please ask yourself, ''Would having a part of your loved one in the form of a child would make your grieving easier?'' I think it would. Therefore, the loss of that potential life is worth an immeasurable amount to me. Let's say for the sake of argument that Carrie was not killed by that act of violence, but that shrapnel entered the womb and killed Michael. Is it safe to assume that would have an ill effect on her child bearing capacity, not only physically, but emotionally, for the rest of her life? I am no doctor, but I would have to think it would. In this scenario, a seven-year plan is still gone and possibly any future plans. Should we as people allow that act of violence to remain a victimless crime? No Michael the 3rd ever mentioned? I don't think that would be right. In any case, I lost the two people I loved 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 that died. Three babies.

    Passing this bill won't bring my wife and son back to me, but it would go along way toward at least recognizing Michael's life and the loss of seven years of responsible actions to gain that life. Violent criminal acts that result in the death of a potential life is worth prosecution on its own merits, regardless of the other counts against the defendant. As the only survivor of a family of three, in my case, it would only be right. Regardless of your vote on this, in my mind 171 people lost their lives that day, and three ''Daddies to be'' became widowers.
 Page 47       PREV PAGE       TOP OF DOC

    Thank You for your time.

    Mr. CANADY. Thank you Mr. Lenz.

    Lt. Colonel Roberts.

STATEMENT OF LT. COLONEL KEITH ROBERTS, DEPUTY CHIEF, MILITARY JUSTICE DIVISION, AIR FORCE LEGAL SERVICES AGENCY, BOLLING AIR FORCE BASE, WASHINGTON, DC

    Mr. ROBERTS. Thank you, Mr. Chairman and members of the committee. My name is Lieutenant Colonel Keith Roberts and I am the active duty Air Force Judge Advocate currently serving as the Acting Chief of the Air Force Military Justice Division, out of the United States Air Force Judiciary at Bolling Air Force Base, Washington, D.C. The Military Justice Division is responsible for all military policy matters in the Air Force. I have been a Deputy Chief of the Division approximately 4 years and my previous assignments, as you said, Mr. Chairman, including duty as a Military Judge, three assignments as a Staff Judge Advocate, and two other base level assignments.

    I am appearing today at the request of the subcommittee for the purpose of presenting the facts in the court martial case of United States v. Airman Gregory A. Robbins, and the application of the Assimilative Crimes Act to that case. Neither my testimony or appearance here today should be construed as an endorsement of H.R. 2436 by me, the Air Force, the Department of Defense or the Executive Branch. It is my understanding that neither DOD nor the Executive Branch has completed its review of this legislation.
 Page 48       PREV PAGE       TOP OF DOC

    While I had no personal involvement in the case, in preparation for these hearings, I reviewed the court martial of Airman Gregory A. Robbins. My statement includes a brief summary of the case that I took primarily from a stipulation of facts signed by Airman Robbins, and his guilty plea discussion with a Military Judge conducted under oath at his trial.

    My statement also includes a discussion of one particular charge that assimilated an Ohio statute. Airman Robbins and his wife Karlene were married on 28 December 1995. In February 1996, Airman Robbins arrived at Wright-Patterson Air Force Base, Ohio, his first permanent duty assignment, and the couple began living together as husband and wife. The same month Mrs. Robbins became pregnant.

    In mid-March of 1996, they moved into military base housing located at 137 Trunk Drive, an area of exclusive Federal jurisdiction on Wright-Patterson Air Force Base, Ohio. Mrs. Robbins' anticipated delivery day was 26 October 1996.

    Shortly after the couple moved into base housing, Airman Robbins began beating his wife. The abuse always occurred within the confines of the house. It began with pushing, then escalated into open-handed hitting, then punching and finally kicking. During these episodes, Airman Robbins struck Mrs. Robbins on various parts of her body, including her legs, her side, her back, her hand and her face. Sometimes he hit her with enough force to drop her to her knees.

    A variety of factors reportedly motivated Airman Robbins' assaults. At times he was angry with his wife for not cleaning the house or not letting the couple's two dogs out. At other times he was angry about her care of their pet birds. Sometimes he was angry about his wife's long distance phone calls to her mother in Chicago and the expenses incurred from them.
 Page 49       PREV PAGE       TOP OF DOC

    There is no evidence that Mrs. Robbins brought any of these instances of physical abuse to the attention of military authorities prior to the September incident. After the episodes described above, Mrs. Robbins periodically packed her bags with the thought of leaving her husband and returning to Chicago. However, she always changed her mind and stayed.

    On 12 September 1996, Mrs. Robbins was approximately 34 weeks pregnant. The fetus had no known abnormalities. Airman Robbins came home that evening, noticed one of the dogs had defecated on the floor near the bathroom door and became enraged. Airman Robbins then began yelling at his wife as she tried to defend the dog. Next he pushed her causing her to fall to her knees.

    When she tried to escape, he pursued her down the stairs and cornered her against a wall. He then wrapped his fists in a uniform T-shirt and began repeatedly punching Mrs. Robbins in the face with a closed fist, breaking her nose and battering her eye. He then began punching her in the abdomen while she attempted to shield herself with one hand on her back and the other on her stomach.

    The blows to Mrs. Robbins' abdomen were so severe that they ruptured her uterus and caused the placenta to separate from the uterus. Mrs. Robbins was eventually able to escape to a neighbor's house. The neighbors immediately called for an ambulance, and Mrs. Robbins was taken to the base medical center.

    On her arrival, Mrs. Robbins' face was swollen and bruised, her right eye was swollen shut, and she was losing blood internally in the abdominal area. An ultrasound detected no amniotic fluid and no fetal heart tones. The doctors determined that immediately surgery was needed. Mrs. Robbins had lost two liters of blood from the rupture and the placenta was entirely torn from her uterine wall. Doctors estimated had she not reported the assault, Mrs. Robbins would have died of loss of blood within hours.
 Page 50       PREV PAGE       TOP OF DOC

    After 8 days of inpatient care, Mrs. Robbins was flown by medical air evacuation to her home in Chicago for further recovery. A forensic pathologist performed an autopsy on the fetus and a local deputy coroner opined that the cause of fetal demise was placental abruption and uterine rupture due to maternal blunt abdominal trauma.

    I will now discuss the prosecution of Airman Robbins for the attacks on his wife. Any time a commander becomes aware of possible misconduct by a member under his or her command, the commander has the responsibility to review all available evidence and decide whether any type of disciplinary action is appropriate.

    As is typical in cases such as this, Special Agents from the Air Force of Special Investigations investigated the incident. After they completed their report, they forwarded it to Airman Robbins' commander, who reviewed the report and consulted with his Staff Judge Advocate, who was a Senior Legal Advisor to the commander. As part of that process, the Judge Advocate reviews the report, determines whether any of Airman Robbins' actions violated the UCMJ, the Uniform Code of Military Justice, and makes recommendations on how Airman Robbins' commander should handle the matter.

    The Judge Advocate's recommendations are strictly recommendations and the commander has the final say on what action, if any, to take. His commander decided that the incident was serious enough to warrant criminal charges. A Judge Advocate prepared the charge sheet, which the commander signed to initiate the criminal prosecution. This step is known as preferral of charges.

 Page 51       PREV PAGE       TOP OF DOC
    The convening authority, a commander senior to the commander who preferred the charges, determined additional investigation was appropriate. He appointed a Judge Advocate to conduct a pretrial investigation of the charges then pending against Airman Robbins. This Judge Advocate had nothing to do with the case previously and could not be further involved in the case after the investigation was completed.

    The charge sheet listed all the offenses that Airman Robbins' commander had reason to believe he committed. Offenses under the UCMJ are codified in Title 10, United States Code, Chapter 47. They are either listed in Articles 80 through 132, commonly referred to as the enumerated articles, or contained in Articles 133 or 134.

    Article 133 applies to conduct unbecoming an officer, it is not more specifically defined. Article 134 is the general article and includes ''disorders and neglects to the prejudice of good order and discipline in the armed forces,'' Clause 1 offenses; ''conduct of a nature to bring discredit upon the armed forces,'' Clause 2 offenses; ''crimes and offenses not capital,'' Clause 3 offenses.

    Clause 3 encompasses the Federal Assimilative Crimes Act of 18 United States Code, section 13. In this act, Congress incorporated State criminal laws for areas of exclusive or concurrent Federal jurisdiction, provided Federal criminal law, including UCMJ, has not defined an applicable offense for the misconduct committed as offenses under the UCMJ.

    Airman Robbins was initially charged with two specifications or counts of assault against his wife under Article 128, maiming under Article 124 by rupturing her uterus with repeated punches to her abdomen with his fists, and with murder and involuntary manslaughter under Assimilative Crimes Act provisions of Article 134.
 Page 52       PREV PAGE       TOP OF DOC

    The murder and involuntary manslaughter offenses were charged by assimilating an Ohio statute, and that statute is listed in my statement. As this committee may be aware, this State law created a series of criminal offenses for causing the unlawful termination of another's pregnancy. The term ''unlawful termination of another's pregnancy'' was defined as, ''causing the death of unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and continues unless and until live birth occurs.''

    The military court determined that since there was no comparable UCMJ offense, the State law could be assimilated into the Federal law and could be prosecuted under Article 134 of the UCMJ.

    After the pretrial investigation, the investigating officer prepared a report that was forwarded through command channels and the charges were ultimately referred to a general court martial on the 16th of October 1996. A general court martial is the highest court martial forum in the military. It can adjudge any authorized punishment up to and including death.

    The trial was held on 9 December 1996 and Airman Robbins asked to be tried by a military judge alone. At that trial, the maiming charge was merged with one of the assault charges, and Airman Robbins pled guilty to assaulting his wife. He also pled guilty to involuntary manslaughter by causing the unlawful termination of his wife's pregnancy. The murder charge was dismissed pursuant to a pretrial agreement, the military equivalent of a plea bargain.

    The military judge sentenced Airman Robbins to be dishonorably discharged from the Air Force, to be reduced to the grade of E-1, the lowest enlisted grade from his previous grade of E-2, and to be confined for 8 years. Airman Robbins' conviction has been reviewed and upheld on appeal by the Air Force Court of Criminal Appeals. We are awaiting a decision by the U.S. Court of Appeals for the Armed Forces on his appeal to that court.
 Page 53       PREV PAGE       TOP OF DOC

    [The statement of Lt. Colonel Roberts follows:]

PREPARED STATEMENT OF LT. COLONEL KEITH ROBERTS, DEPUTY CHIEF, MILITARY JUSTICE DIVISION, AIR FORCE LEGAL SERVICES AGENCY, BOLLING AIR FORCE BASE, WASHINGTON, DC

    My name is Lieutenant Colonel Keith Roberts and I am an active duty Air Force Judge Advocate currently serving as the Acting Chief of the Air Force Military Justice Division of the United States Air Force Judiciary at Bolling Air Force Base, Washington, D.C. The Military Justice Division is responsible for all military justice policy matters in the Air Force. I have been the Deputy Chief of the Division approximately four years, and my previous assignments included duty as a military judge, three assignments as a Staff Judge Advocate and two other base-level assignments.

    I am appearing today at the request of the Subcommittee for the purpose of presenting the facts in the court-martial case of United States v. Airman Gregory A. Robbins, and the application of the Assimilative Crimes Act to that case. Neither my testimony or appearance here today should be construed as an endorsement of H.R. 2436 by me, the Air Force, the Department of Defense or the Executive Branch. It is my understanding that neither DoD nor the Executive Branch have completed their review of this legislation.

    While I had no personal involvement in this case, in preparation for these hearings I reviewed the court-martial record of Airman Gregory A. Robbins. My statement includes a brief summary of the case that I took primarily from a Stipulation of Fact signed by Airman Robbins and his guilty plea discussion with the military judge conducted under oath at his trial. My statement also includes a discussion of one particular charge that assimilated an Ohio statute.
 Page 54       PREV PAGE       TOP OF DOC

STATEMENT OF FACTS

    Airman Robbins and his wife, Karlene, were married on 28 December 1995. In February 1996, Airman Robbins arrived at Wright-Patterson Air Force Base, Ohio, his first permanent duty assignment, and the couple began living together as husband and wife. The same month, Mrs. Robbins became pregnant. In mid-March 1996, they moved into military base housing located at 137 Trunk Drive, an area of exclusive federal jurisdiction on Wright-Patterson Air Force Base, Ohio. Mrs. Robbins' anticipated delivery date was 26 October 1996.

    Shortly after the couple moved into base housing, Airman Robbins began beating his wife. The abuse always occurred within the confines of the house. It began with pushing, then escalated to open-handed hitting, then punching, and finally kicking. During these episodes, Airman Robbins struck Mrs. Robbins on various parts of her body, including her legs, her side, her back, her head, and her face. Sometimes, he hit her with enough force to drop her to her knees.

    A variety of factors reportedly motivated Airman Robbins' assaults. At times, he was angry with his wife for not cleaning the house or not letting the couple's two dogs out. At other times, he was angry about her care of their pet birds. Sometimes he was angry about his wife's long-distance phone calls to her mother in Chicago and the expenses incurred from them. There is no evidence that Mrs. Robbins brought any of these instances of physical abuse to the attention of military authorities, prior to the September incident.

    After the episodes described above, Mrs. Robbins periodically packed her bags with the thought of leaving her husband and returning to Chicago. However, she always changed her mind and stayed.
 Page 55       PREV PAGE       TOP OF DOC

    On 12 September 1996, Mrs. Robbins was approximately 34 weeks pregnant. The fetus had no known abnormalities. Airman Robbins came home that evening, noticed one of the dogs had defecated on the floor near the bathroom door, and became enraged. Airman Robbins then began yelling at his wife as she tried to defend the dog. Next, he pushed her, causing her to fall to her knees. When she tried to escape, he pursued her down the stairs, and cornered her against a wall. He then wrapped his fist in a uniform tee shirt and began repeatedly punching Mrs. Robbins in the face with a closed fist, breaking her nose and battering her eye. He then began punching her in the abdomen, while she attempted to shield herself with one hand on her back and the other on her stomach. The blows to Mrs. Robbins' abdomen were so severe that they ruptured her uterus and caused the placenta to separate from the uterus. Mrs. Robbins was eventually able to escape to a neighbor's house. The neighbors immediately called for an ambulance and Mrs. Robbins was taken to the base medical center.

    On her arrival, Mrs. Robbins' face was swollen and bruised, her right eye was swollen shut, and she was losing blood internally in the abdominal area. An ultrasound detected no amniotic fluid and no fetal heart tones. The doctors determined that immediate surgery was needed. Mrs. Robbins had lost two liters of blood from the rupture, and the placenta was entirely torn from her uterine wall. Doctors estimated that, had she not reported the assault, Mrs. Robbins would have died of blood loss within hours. After eight days of inpatient care, Mrs. Robbins was flown by medical aero-evacuation to her home in Chicago for further recovery. A forensic pathologist performed an autopsy on the fetus and the local Deputy Coroner opined that the cause of fetal demise was placental abruption and uterine rupture, due to maternal blunt abdominal trauma.

 Page 56       PREV PAGE       TOP OF DOC
PROSECUTION OF THE CASE

    I will now discuss the prosecution of Airman Robbins for the attacks on his wife. Any time a commander becomes aware of possible misconduct by a member under his or her command, the commander has the responsibility to review available evidence and decide whether any type of disciplinary action is appropriate. As is typical in cases such as the Robbins case, Special Agents from the Air Force Office of Special Investigations investigated the incident. After the investigators completed their report they forwarded it to Airman Robbins' commander who reviewed the report and consulted with his Staff Judge Advocate, who is the senior legal advisor to the commander. As part of this process, a Judge Advocate reviews the report, determines whether any of Airman Robbins' actions violated the Uniform Code of Military Justice (UCMJ), and makes recommendations on how Airman Robbins' commander should handle the matter. The Judge Advocate's recommendations are strictly recommendations and the commander has the final say in what action, if any, to take.

    His commander decided that the incident was serious enough to warrant criminal charges. A Judge Advocate prepared the Charge Sheet, which the commander signed to initiate the criminal prosecution. This step is known as preferral of charges. The convening authority, a commander senior to the commander who preferred charges, determined additional investigation was appropriate. He appointed a Judge Advocate to conduct a pretrial investigation of the charges then pending against Airman Robbins. This Judge Advocate had nothing to do with the case previously, and could not be further involved in the case after the investigation was completed.

    The Charge Sheet listed all the offenses that Airman Robbins' commander had reason to believe he had committed. Offenses under the UCMJ are codified in Title 10 U.S.C., Chapter 47. The offenses are either listed in Articles 80 through 132, commonly referred to as the enumerated Articles, or contained in Articles 133 or 134. Article 133 applies to conduct unbecoming an officer, and is not more specifically defined. Article 134 is the general article and includes ''disorders and neglects to the prejudice of good order and discipline in the armed forces'' (clause 1 offenses), ''conduct of a nature to bring discredit upon the armed forces'' (clause 2 offenses) and ''crimes and offenses not capital'' (clause 3 offenses). Clause 3 encompasses the Federal Assimilative Crimes Act (18 U.S.C. Section 13). In this Act, Congress incorporated ''state criminal laws for areas of exclusive or concurrent federal jurisdiction, provided federal criminal law, including the UCMJ, has not defined an applicable offense for the misconduct committed'' as offenses under the UCMJ.
 Page 57       PREV PAGE       TOP OF DOC

    Airman Robbins was initially charged with two specifications (counts) of assault against Mrs. Robbins under Article 128 of the UCMJ; maiming under Article 124 by rupturing her uterus with repeated punches to her abdomen with his fist; and with murder and involuntary manslaughter under the Assimilative Crimes Act provision of Article 134. The murder and involuntary manslaughter offenses were charged by assimilating an Ohio statute, the Amended Substitute Senate Bill No. 239, codified in §2903.02 and 2903.04 of the Ohio Revised Code, that went into effect on 6 September 1996. As this Committee may be aware, this state law created a series of criminal offenses for causing the ''unlawful termination of another's pregnancy.'' The term ''unlawful termination of another's pregnancy'' was defined as ''causing the death of an unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues unless and until live birth occurs.'' Ohio Revised Code §2903.09(A).

    The court determined that, since there is no comparable UCMJ offense, the state law could be assimilated into the federal law and could be prosecuted under Article 134 of the UCMJ.

    After the pretrial investigation the Investigating Officer prepared a report that was forwarded through command channels, and the charges were ultimately referred to a general court-martial on 16 October 1996. A general court-martial is the highest court-martial forum in the military. It can adjudge any authorized punishment up to and including death. The trial was held on 9 December 1996, and Airman Robbins asked to be tried by military judge alone. At trial, the maiming charge was merged with one of the assault charges and Airman Robbins pled guilty to assaulting his wife. He also pled guilty to involuntary manslaughter by causing the unlawful termination of his wife's pregnancy. The murder charge was dismissed, pursuant to a pretrial agreement, the military equivalent of a plea bargain. The military judge sentenced Airman Robbins to be dishonorably discharged from the Air Force, to be reduced to the grade of E–1 (the lowest enlisted grade from his previous grade of E–2) and to be confined for 8 years.
 Page 58       PREV PAGE       TOP OF DOC

    Airman Robbins' conviction has been reviewed and upheld on appeal by the Air Force Court of Criminal Appeals. We are awaiting a decision by the U.S. Court of Appeals for the Armed Forces on his appeal to that court.

    Mr. CANADY. Thank you, Lt. Colonel Roberts.

    Ms. Stuart.

STATEMENT OF PAMELA B. STUART, ATTORNEY AT LAW

    Ms. STUART. Good afternoon, members of the committee. My name is Pamela Stuart. I am attorney in private practice here in Washington, and apropos the remarks of Mr. Watt, I was called yesterday to assist you in this effort. I do appreciate the opportunity to appear before you to discuss this bill. I come at it from the point of view of one who has served daily in the Federal and local courts here in the District of Columbia as a Federal prosecutor. I am a member of the bar of the State of New York, of the District of Columbia, Florida, Maryland and Virginia.

    Since the object of the bill under consideration would be to amend the Federal criminal laws to add a new separate offense for the criminal acts that cause the death of or bodily injury to a fetus, I hope to be able to impart this afternoon the real world perspective that will face a Federal prosecutor if you enact this bill and a Federal prosecutor is called upon to either indict or try to win a conviction under this law before a jury.
 Page 59       PREV PAGE       TOP OF DOC

    We in the current and former prosecutor community are well aware of the problem of violence, particularly domestic violence, that is perpetrated against women. Most of the criminal acts such as those described here this afternoon do not involve interstate activity or other activities that are usually the subject of Federal legislation, other than the use of a firearm. The criminal activities that would be addressed by this bill are already the subject of either State or Federal criminal laws, or both, so that as the bill is drafted, no additional criminals would be prosecuted as a result of the enactment of this legislation. By definition, if you kill or assault the mother of a fetus, you have committed a criminal act that is punishable.

    So the question before you seems to be, what, if anything, would this legislation add to the enforcement scheme that presently exists, and what damage, if any, might it do to the ability of prosecutors to secure convictions on the underlying charges against the person who has committed the criminal acts?

    I am very sympathetic to the goal of trying to curb violence against women through the use of the criminal laws, but I fear that this bill as drafted will hurt the ability of Federal prosecutors to secure convictions against those who perpetrate this type of violence. Obviously, such an outcome would be exactly the opposite of what I believe to be your intended result.

    I think in assessing my comments, it would be helpful to you to know something about my background. I spent actually 6-1/2 years being a Federal prosecutor here in the District. And as you know, since the United States prosecutes both the local and the Federal crimes here, I basically had the experience of both a State and a Federal prosecutor. I appeared daily in the local and Federal courts. I prosecuted everything from misdemeanor thefts to murders, to complex Federal fraud cases. I tried approximately 50 jury trials, and with the concurrence of Grand Juries, obtained indictments in hundreds, if not thousands, of felony cases, and I argued the appeals in the Courts of Appeals. So I think in bringing you my comments this afternoon, I am bringing the perspective of somebody who is going to actually take this bill and essentially run with it and do what you want to happen with it. I have been in private practice since 1987, and I have had a bipartisan practice. I represented Senator Packwood before the Senate Ethics Committee, among others.
 Page 60       PREV PAGE       TOP OF DOC

    In all my years as a prosecutor, and I think this is of some comfort to us this afternoon, I do not recall handling a case in which a victim of crime was pregnant at the time of the commission of the offense. I may have done so and I just may have forgotten of it. But from my personal experience, I would extrapolate that these kinds of cases are rare.

    Last night I tried to do some research to discover in what context this might actually come up in the real world, and it appeared that in most of the cases they were vehicular homicides. This is an area of particular interest to me because I prosecuted one of those cases. I should add that I appear here only representing myself and not the interests of any organization.

    As I indicated, this legislation would not result in the apprehension of one additional criminal, because in order to be guilty of the bill as you have drafted it, one would have had to have already committed a Federal crime. In thinking about this possibility, I am mindful that we are concerned in the former prosecutor and criminal defense community that those on Capitol Hill are over-federalizing the criminal law because many of these offenses could be handled, and are being handled, as some of you have indicated, in the State courts.

    The problem is when you add another statute of this type, it means that the Federal judges, prosecutors, U.S. Marshals, probation officers, court personnel, all have to pay attention to something that could be handled in the State courts, therefore, being, in my view, a waste of some scarce resources that could be devoted more profitably to Federal crimes that should be handled in Federal court.

 Page 61       PREV PAGE       TOP OF DOC
    The result of creating new offenses that take additional time to handle in Federal court is that other cases get delayed, particularly civil cases, and to the extent that these cases that we are talking about could be handled in State court, I would urge you to consider that as a possibility.

    The practical implications of this bill for a prosecutor, I am hoping will resonate with at least three members who of this committee. Mr. Hutchinson served as a United States Attorney, Mr. Graham served as a working prosecutor for the Air Force, and Mr. Barr served also as United States Attorney.

    While it is definitely the prerogative of the Congress to enact the legislation, ultimately, the prosecution will be left to those under the charge of persons like Mr. Hutchinson, and I am afraid that in the real world, a prosecution under this statute might become a prosecutor's nightmare.

    There are some proof problems that I see with this legislation. As worded, a prosecutor who is trying to obtain a conviction under this statute must prove:

(1) that the defendant engaged in conduct that violated the specified sections of Title 18 that was directed at the woman who was pregnant at the time of the offense;

(2) that the criminal conduct, whatever it was, caused the death of or the bodily injury to the fetus beyond a reasonable doubt;

(3) that the defendant had a culpable mental state, that is, he knowingly and intentionally caused the death or bodily injury to the fetus;
 Page 62       PREV PAGE       TOP OF DOC

(4) that the defendant was not at the time of the offense engaged in conduct relating to an abortion that was consensual, and that the defendant was not at the time of the offense engaged in providing any medical treatment to the woman or her unborn child, and that the defendant was not engaged in conduct directed at her own unborn child at the time of the offense.

    Unlike the civil justice system, the criminal law demands a culpable state of mind. There is no strict liability in criminal matters. You can't be put in jail for committing a crime unless you intended that the crime occur. Therefore, instead of just being able to convict a criminal for knowingly causing an assault on the woman, in this case the prosecutor would be called upon to prove that he knew or had reason to know that the woman was pregnant at the time. This may be more difficult to prove than might meet the eye.

    The possibility then exists that a perfectly good criminal prosecution might ultimately be lost if the jurors or other finders of fact got bogged down in trying to determine whether or not the woman was pregnant at the time and the criminal intended to harm the fetus by his acts.

    Beyond the debate over the defendant's lack of knowledge about the victim's condition, the requirement of proving that the criminal conduct caused the death or bodily injury of the fetus beyond a reasonable doubt would, in my opinion, be an evidentiary nightmare. I do some medical malpractice cases in my practice, and I can tell you that there is no end of creative ways of defending those on the grounds that other things other than birth injury caused the death of a fetus, and I would hate to see Federal juries getting caught up in deciding whether or not periventricular leukomylasia caused the death of the fetus, or an assault. But that is the kind of debate that you may be subjecting jurors to if we go down the line that you are suggesting.
 Page 63       PREV PAGE       TOP OF DOC

    Mr. CANADY. Ms. Stuart, I think you have had about 10 minutes now.

    Ms. STUART. I'm sorry.

    Mr. CANADY. Could you wind it up?

    Ms. STUART. My worst nightmare, and I think this is the one that you should be concerned about, is that a jury called upon to decide a case like this would end up debating in the jury room whether or not the fetus was alive at the time of the event, whether or not the fetus was an unborn child, whether or not it was an embryo, and that sort of thing, in other words, bringing the national debate on abortion that we are all so painfully engaged in into a jury room where it really doesn't belong, when it would prevent them from focusing on the criminal activity that could be easily proved against the person who assaulted the woman.

    The objectives of this committee I believe can better be achieved by looking on the sentencing side where the proof problems aren't so difficult, looking at the enhancements that are available under the Federal Sentencing Guidelines, which I have mentioned in my testimony, and also considering amending the sentencing statute to provide for an enhanced sentencing under these circumstances. But I urge you, please, do not leave prosecutors with the nightmare of having to try and prove this kind of case when it wouldn't advance the cause of getting the criminal.

 Page 64       PREV PAGE       TOP OF DOC
    [The statement of Ms. Stuart follows:]

PREPARED STATEMENT OF PAMELA B. STUART, ATTORNEY AT LAW

I. INTRODUCTION

    Good Afternoon. I am Pamela Bruce Stuart. I am an attorney in private law practice but I am here today to speak from the perspective of a former federal prosecutor. I am a member of the bar in New York, the District of Columbia, Florida, Maryland and Virginia. I appreciate the opportunity to assist the Constitution Subcommittee as it considers H.R. 2436, the Unborn Victims of Violence Act of 1999.

    I have been asked to appear this afternoon because I served as an Assistant United States Attorney and later as a trial attorney in the Office of International Affairs of the Criminal Division of the United States Department of Justice for eight and a half years. Since the object of this bill would be to amend the federal criminal laws to add a new separate offense for criminal acts that cause the death of or bodily injury to fetuses, I hope to be able to impart the ''real world'' perspective of a working prosecutor who might be called upon to indict a case under this proposed law and try to win a conviction before a jury.

    We in the current and former prosecutor community are well aware of the problem of violence, particularly domestic violence, that is perpetrated against women. Most of these criminal acts do not involve interstate activity or other concerns that typically invoke the interest of federal authorities, other than the use of a firearm. The criminal activities that would be addressed by this bill are already the subject of either state or federal criminal laws, or both, so that no additional criminals would be prosecuted as a result of the enactment of this legislation. By definition, if you kill or assault the mother of a fetus, you have committed a criminal act that is punishable under state and/or federal law. So, the question then is what, if anything, would this legislation add to the enforcement scheme that presently exists and what damage, if any, might it do to the ability of prosecutors to secure convictions on the underlying charges against the person charged?
 Page 65       PREV PAGE       TOP OF DOC

    I am very sympathetic to the goal of trying to curb violence against women through the use of the criminal laws, but I fear that this bill as currently drafted will hurt the ability of federal prosecutors to secure convictions against those who perpetrate violence against women who happen to be pregnant at the time that they become victims of crime. Obviously, such an outcome would be exactly the opposite of the intended result.

II. PERSONAL BACKGROUND

    I think it would be helpful in assessing my comments for you to know something about my background. I graduated from Mount Holyoke College in 1970 and the University of Michigan Law School in 1973. I arrived in Washington during the summer of the Watergate hearings and then spent 5 1/2 years prosecuting consumer fraud cases at the Federal Trade Commission. From 1979 to 1985, I served as an Assistant United States Attorney for the District of Columbia. I appeared daily in the local and federal courts of the Nation's Capital. I prosecuted everything from misdemeanor thefts up through complex federal fraud cases. I tried approximately 50 jury trials and, with the concurrence of grand juries, obtained indictments in hundreds of felony cases. I argued appeals of criminal cases before the District of Columbia Court of Appeals and the US Court of Appeals for the District of Columbia Circuit. In 1985, I joined the Office of International Affairs of the Criminal Division of the US Department of Justice where I assisted prosecutors all over the United States and abroad in prosecuting cases that required international extradition or sharing of evidence. In 1987, I entered private practice and have been primarily a civil and white collar criminal defense attorney ever since. I have represented some clients in Congressional investigations. For example, I helped represent Senator Packwood before the Senate Ethics Committee.
 Page 66       PREV PAGE       TOP OF DOC

    In all of my years as a prosecutor, I do not recall handling a case in which the victim of the crime was pregnant at the time of the commission of the offense. I may have done so, but I do not recall any such cases. From my personal experience, I would extrapolate that such cases are rare.

    Yesterday, when I learned that I was to testify on this topic, I searched for any relevant cases in Lexis. I discovered that this issue arises primarily in the context of vehicular homicide cases in which the victim of a fatal car collision is pregnant. This was of interest to me as I tried a precedent-setting case of murder while armed with a car here in the District of Columbia.

    In that connection, I should note that while I served last year as the president of the Assistant United States Attorneys Association of the District of Columbia, an organization of current and former federal prosecutors, and am currently a member of the Board of Directors of the Bar Association of the District of Columbia, the views I express here today are entirely my own. I do not represent any organization or special interest.

III. THE UNBORN VICTIMS OF VIOLENCE ACT OF 1999

    I would like to turn now to the proposed legislation that I have been asked to review. H.R. 2436 would amend various sections of Title 18 of the United States Code and the Uniform Code of Military Justice to make it a separate offense to engage in conduct violating the statute which thereby causes the death of or bodily injury to ''a child, who is in utero at the time the conduct takes place.'' It would prohibit the prosecution of any person for conduct relating to a consensual abortion, for medical treatment, and would prohibit prosecution of conduct by the mother with respect to her unborn child.
 Page 67       PREV PAGE       TOP OF DOC

    As I indicated, by definition, this legislation would not apprehend one additional criminal because, in order to be guilty of an offense under this proposed bill, one would already have to have committed an act that violates Title 18. What appears to be the intent of the drafters of the bill is to enhance the punishment that would be given to one who, in the commission of another criminal act, causes the death or injury of a fetus.

    In thinking about this possibility, I am mindful of the concern that has been raised often in the current and former prosecutor community as well as among criminal defense attorneys that the Congress is ''federalizing'' the criminal law. By that I mean that the Congress has legislated into the federal criminal code many criminal offenses that normally would be covered by state criminal laws. The problem with this trend is that it has a tendency to overburden the federal courts with cases that could be efficiently and effectively handled by the state courts. By adding federal offenses that might otherwise be legislated by the states, the judges and prosecutors, probation officers, US Marshals, courtroom clerks and others who work in the federal courts must take time away from other criminal cases in which the federal interest is more apparent—such as interstate kidnapping or cases against organized crime—to handle what are essentially domestic violence cases or cases involving violent crimes that have traditionally been the province of state courts. The result of this trend has been, among other things, to delay civil cases as well as other criminal cases. Because of the federal Speedy Trial Act, criminal cases take priority on the calendar of every federal judge. To the extent that they are getting cases that could otherwise be handled in state courts, this is a waste of precious federal resources and delays justice for other litigants.

    In the case of this particular bill, we are not dealing with a positive enhancement of the ability of federal prosecutors to fight crime such as the money laundering statutes or those that target organized crime. Rather, this bill would merely create a second offense for punishment purposes. More importantly, from my point of view, the bill might have the unintended consequence of making it more difficult to convict the very perpetrators that the members of the Subcommittee wishes to punish more severely!
 Page 68       PREV PAGE       TOP OF DOC

IV. THE PRACTICAL IMPLICATIONS OF THE BILL—WILL PROSECUTORS BE ASSISTED OR THWARTED IN THEIR EFFORTS TO CONVICT CRIMINAL WRONGDOERS

    While it is definitely the prerogative of the Congress to enact legislation, ultimately the prosecution of the proposed criminal statute will be left to the Assistant United States Attorneys all across the country. Will this bill help them or hamstring them? My concern is that the proposed bill would be a prosecutor's nightmare. I am concerned that this proposed statute is open to attack on several fronts.

A. Proof problems

    As worded, a prosecutor trying to persuade a grand jury to indict a case under this statute would have to allege and prove by a preponderance of the evidence to the satisfaction of a majority of the 23 member grand jury and later beyond a reasonable doubt at trial that:

(1) the defendant engaged in conduct that violated the specified sections of Title 18 that was directed at a woman who was pregnant at the time of the offense;

(2) that the criminal conduct (whatever it was) caused the death of or bodily injury to the fetus beyond a reasonable doubt;

(3) that the defendant had a culpable mental state (he knowingly and intentionally caused the death or bodily injury to the fetus)
 Page 69       PREV PAGE       TOP OF DOC

(4) that the defendant was not at the time of the offense engaged in conduct relating to an abortion for which the pregnant woman had given or impliedly given consent;

(5) that the defendant was not at the time of the offense engaged in providing any medical treatment to the woman or her unborn child; and

(6) that the defendant was not engaged in conduct directed at her own unborn child at the time of the offense.

    Unlike the civil justice system, the criminal law demands a culpable state of mind (mens rea) as well as an act in violation of the law. There is no strict liability in crime. One cannot be put in jail for committing a crime unless he or she intended that the crime occur—or at least acted knowingly and willfully. Thus, it would be possible that a perfectly good criminal case against a defendant who, for example, assaulted a woman on a federal reservation, and was charged with the offense of also injuring her unborn fetus, would degenerate into a heated debate among jurors as to whether the perpetrator knew the victim was pregnant and intended to harm the fetus.(see footnote 1)

    Beyond a debate over the defendant's knowledge or lack thereof of the victim's condition (pregnancy), the requirement of proving that the criminal conduct caused the death or bodily injury of the fetus beyond a reasonable doubt would be an evidentiary nightmare. First, the prosecutor would have to prove that the fetus was alive and well prior to the criminal conduct. That would require expert testimony, probably from the mother's gynecologist or an emergency room physician. Unlike forensic pathologists who often work for the government, physicians in private practice are difficult to schedule for testimony. If, as may be the case with assaultive conduct in a remote location, the victim is not found and treated within a few minutes after the event, a perfectly good prosecution for assaultive conduct against the woman would be sidetracked into a raging debate as to whether the assault caused the death of the fetus or whether the child was stillborn.(see footnote 2)
 Page 70       PREV PAGE       TOP OF DOC

    Secondly, the prosecutor would have to show, to the exclusion of all other reasonable causes, that the criminal conduct was the proximate cause of the death or bodily injury to the fetus. With all of the other things that can go wrong in utero (placental abruption, hypoxia, etc.—to name just a few) and in the birth process, it may be difficult to establish, beyond a reasonable doubt, that the criminal conduct caused the injury. Needlessly complex medical testimony would be required and jurors might become overwhelmed and confused.

    Moreover I can easily imagine that if the case ever got to the jury room that well-intentioned jurors might endlessly debate the issue of whether the fetus was an ''unborn child''—that is, whether the fetus had reached the stage where it was viable.

    Because of the raging national debate on what legal rights a fetus has, a jury might be sidetracked into a debate as to what is an unborn child and whether it has to be viable and whether a child created in a petri dish would count. Such a possibility would, to say the least, detract from the ability of a prosecutor to try a clean case and achieve a conviction. It would also result in needlessly protracting jury deliberations which would use up court time.

    I can also foresee endless opportunities for defense attorneys to challenge the constitutionality of the statute and thus delay the swift and sure conviction that is the desired end of the prosecutor. All of this would merely detract from what, by definition, was already a viable criminal prosecution under existing federal law.

    So, in my opinion, this bill would not add anything to existing law and would detract from the ability of federal prosecutors to fight crime.
 Page 71       PREV PAGE       TOP OF DOC

V. OTHER, MORE VIABLE, OPTIONS

    Since the major objective of this bill is to enhance the punishment of persons who commit crimes against pregnant women, the Subcommittee might wish to focus on amending the criminal laws with respect to punishment in order to permit the enhancement of a sentence based upon injury to the fetus carried by a pregnant victim of crime. An amendment to 18 U.S.C. §3558(d) which provides for death or imprisonment for certain crimes against children to provide courts with the authority to impose additional punishment for the death or injury of fetuses resulting from crimes against their mothers might be appropriate. I would suggest that it would be easier for a prosecutor to prove causation in the context of sentencing rather than having to prove it to the satisfaction of a jury beyond a reasonable doubt. By putting the issue in the sentencing phase of a case, it would also remove the possibility that civil liability of others involved in the death or injury of the fetus might be precluded by a finding beyond a reasonable doubt that a particular criminal caused the death.

    In addition, Congress might wish to make known to the U.S. Sentencing Commission, which has already provided for enhancement of punishment (''adjustment'' in their vernacular) for a vulnerable victim that Congress specifically wishes pregnant women included within the category of ''vulnerable'' victims. The federal sentencing guidelines in §3A1.1 provide that if the finder of fact at trial or, in the case of a plea, the court finds at sentencing beyond a reasonable doubt that the defendant selected his victim as the object of the offense because of gender (actual or perceived), the sentencing calculation may be increased by 3 levels. If the court or jury finds that the defendant knew or should have known the victim of the offense was a vulnerable victim, the calculation is to increase by two levels. This enhancement is not applied in the case of a sexual offense because that factor is taken account in determining the base offense level of the applicable guideline. The current definition of a vulnerable victim is (a) a person who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (relevant conduct) and (b) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.
 Page 72       PREV PAGE       TOP OF DOC

    Also, as a result of the Victim Witness Protection Act of 1982, prosecutors and probation officers solicit statements by or on behalf of victims of crime detailing their financial and emotional losses for consideration at sentencing. In this way, the loss of a pregnant woman's fetus may be brought to the attention of the sentencing court.

IV. LEGAL HISTORY

    Not only are there available means for Congress to accomplish the goals of this legislation short of injuring the ability of prosecutors to obtain convictions, but the Congress should bear in mind that the weight of legal authority in history would not support a finding that an unborn child can be a separate victim of a criminal offense. The common law, as far back as 1648, held that an unborn fetus, viable or otherwise, could not be the subject of homicide. State of Connecticut v. Anonymous, 40 Conn. Supp. 498, 516 A.2d 156 (Super. Ct. CT. 1986), citing 3 Coke, Institutes (1648)(''If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprison [i.e., misdemeanor], and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive''). In the 18th century, Coke's requirement that the infant be born alive in order to be the subject of a homicide was reiterated and expanded by both Blackstone in his Commentaries (1765) and Hale, Pleas of the Crown (1778), p. 433; see also, 1 Hawkins, Pleas of the Crown (1762), ch. 31 @ 16. In the mid 19th century, a series of prosecutions in the English courts against women accused of murdering a newborn were brought in which the court instructed that a child had to be ''actually wholly in the world in the living state to be the subject of a charge of murder.'' See Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970).
 Page 73       PREV PAGE       TOP OF DOC

    By 1850, this rule had been long accepted in the United States. As early as 1797, proof that the child was born alive was ruled to be necessary to support an indictment for murder. However, some state legislatures enacted feticide statutes beginning with New York in 1829 which said that the wilful killing of an ''unborn quick child'' by any injury to the mother of such child, which would be murder if it resulted in the death of the mother, would be deemed manslaughter in the first decree. Five other states (Missouri, Arkansas, Michigan, Mississippi, and Wisconsin) enacted statutes declaring feticide to be a crime punishable as manslaughter. The New York Court of Appeal in Evans v. People, 49 N.Y. 86 (1872) restricted the statute to its terms and said that death cannot be caused when there is no life. Almost every state court that has had a homicide statute that did not define ''human being'' as explicitly including a fetus have held that the words ''person'' or ''human being'' would not include the unborn child or fetus. In two state court decisions, the courts recognized that the pre-existing common law did not recognize the killing of an unborn child as ''homicide'' but felt they had the authority to change the law prospectively to recognize modern medical technology. See Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). Some states have imposed criminal liability by statute for causing the death of a fetus.

    In Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973), the Supreme Court held that a nonviable fetus was not a ''person'' for purposes of the Fourteenth Amendment. The overwhelming majority view in the United States is that a nonviable fetus has no right to bring an action for wrongful death. Miccolis v. AMICA Mutual Insurance Co., 587 A.2d 67, 71 (R.I. 1991). It has no property rights until it is born alive.
 Page 74       PREV PAGE       TOP OF DOC

CONCLUSION

    For reasons both practical and legal, the Congress should not enact H.R. 2436. It would have the unintended consequence of taking a clean and neat prosecution of a criminal act and turning it into an opportunity for defense attorneys to inject the national debate over what legal status an unborn child should have into the deliberations of lay jurors with disastrous consequences for a federal prosecutor. Otherwise guilty defendants might go free as a result. I ask you not to favorably report out this bill in its present form.

    Mr. CANADY. Thank you, Ms. Stuart.

    We are now going to go out of order to Ms. Fulcher, who I understand must leave at 4. We are going to hear her testimony, then we will have to be in recess while the votes are going on.

    So, if you would proceed, Ms. Fulcher.

STATEMENT OF JULEY ANNA FULCHER, PUBLIC POLICY DIRECTOR, NATIONAL COALITION AGAINST DOMESTIC VIOLENCE

    Ms. FULCHER. Thank you, Mr. Chairman. I apologize, but I thank you very much for accommodating my prior responsibilities.

 Page 75       PREV PAGE       TOP OF DOC
    My name is Juley Fulcher, and I am the Public Policy Director of the National Coalition Against Domestic Violence. The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters, programs and individual members working on behalf of battered women and their children.

    My role here today is to advocate for increased safety for battered women, which, in turn, will lead to healthier pregnancies and births. Unfortunately, the Unborn Victims of Violence Act does not provide the protection that battered women need to obtain safety.

    Historically, one of the major obstacles to eradicating domestic violence from the lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime. The hard work of dedicated domestic violence advocates on the front lines has slowly brought about a change in the way that we treat the crime of domestic violence. States began toughening their laws and enforcing laws in the late 1980's and, in 1994, Congress gave an important boost to this trend by passing the Violence Against Women Act and committing to a Federal investment in protecting battered women and their children.

    As a result, we have seen increased criminal prosecution of domestic violence nationwide. It is important that we continue this trend and recognize domestic violence threats and assaults and murders as the serious crimes that they are.

    According to the 1994 report from the Centers for Disease Control and Prevention, at least 6 percent of all pregnant women in this country are battered by the men in their lives. As an attorney representing victims of domestic violence, I have seen the effects of this violence firsthand. Several years ago a client of mine lost a pregnancy due to domestic violence. There was a history of domestic violence in her relationship and she had sought assistance from the legal system several times prior to the event. While she was 8 months pregnant, her batterer lifted her up in his arms and held her body horizontal to the ground and then slammed her body to the floor causing her to miscarry.
 Page 76       PREV PAGE       TOP OF DOC

    No matter how many times I hear this kind of story, it never ceases to sicken me. I should note that in this case and the others that I have worked on, it was clear from the batterer's words and actions that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control her.

    We, as a society, are right to want to address this problem and protect women from such a fate. However, our response to the problem should be one that truly protects pregnant women by early intervention before such a tragedy occurs.

    The Unborn Victims of Violence Act is not designed to protect women. The goal of the act is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence, instead, the focus will often be switched to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other kinds of violence against women.

    Moreover, passage of the Unborn Victims of Violence Act would set a dangerous precedent which could easily lead to statutory changes that could hurt battered women. This bill would, for the first time, federally recognize that the unborn fetus could be a victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms and, in fact, some States have already made that leap, and in those States, women have been prosecuted and convicted for acts that infringe on State recognized legal rights of a fetus.

 Page 77       PREV PAGE       TOP OF DOC
    While the Unborn Victims of Violence Act specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for the injury to the fetus, even for violence perpetrated on her by her batterer under a duty to protect theory.

    Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of a miscarriage and, if she is financially or emotionally reliant on her batterer, may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for a crime as serious as murder.

    The long-term public health implications of such a policy would be devastating for victims of domestic violence and for all women. The harmful potential of this bill is unfortunately balanced by little or no additional protections for battered women or other women victimized by violence. The vast majority of domestic violence threats, assaults and murders, like other crimes of violence, are prosecuted by the States. While important Federal laws exist to prosecute interstate domestic violence and interstate violation of a protection order, these are stopgap statutes only, which are appropriately applied in a very small number of cases relative to the incidents of domestic violence nationwide. In fact, in the last 4 years since the passage of these two statutes, there have been less than 200 cases prosecuted for interstate domestic violence or interstate violation of a protection order.

    As the Unborn Victims of Violence Act would only apply in Federal cases, the change in the law would do little if anything to address the crime of domestic violence in our country or other assaults on pregnant women.

 Page 78       PREV PAGE       TOP OF DOC
    I hope you agree with me that the crime of domestic violence is a horrendous one, not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can be no doubt that a pregnancy lost due to domestic violence greatly increases the toll on a battered woman.

    We at the National Coalition Against Domestic Violence wish to fully recognize and respond to that loss, however, the more appropriate means of dealing with this problem with respect to battered women is to provide comprehensive health care, safety planning, and domestic violence advocacy for victims that prevents these things from happening in the first place.

    This solution would maintain the focus of the criminal prosecution on the intended victim of the violence, the battered woman, and make an important affirmative step toward providing safety for her. If Congress wishes to protect the pregnancy, the way to do that is by protecting the woman. Thank you.

    [The statement of Ms. Fulcher follows:]

PREPARED STATEMENT OF JULEY ANNA FULCHER, PUBLIC POLICY DIRECTOR, NATIONAL COALITION AGAINST DOMESTIC VIOLENCE

    Good afternoon. My name is Juley Fulcher and I am the Public Policy Director of the National Coalition Against Domestic Violence. The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters, programs and individual members working on behalf of battered women and their children. My role here today is to advocate for increased safety for battered women, which in turn will lead to healthier pregnancies and births. Unfortunately, the ''Unborn Victims of Violence Act'' does NOT provide the protection that battered women need to obtain safety.
 Page 79       PREV PAGE       TOP OF DOC

    Historically, one of the major obstacles to eradicating domestic violence from the lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime. The hard work of dedicated domestic violence advocates on the front lines has slowly brought about a change in the way we treat the crime of domestic violence. States began toughening laws on domestic violence and enforcing existing, laws in the late 1980s. In 1994, Congress have an important boost to this trend by passing the Violence Against Women Act and committing to a federal investment in protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide. It is important that we continue this trend and recognize domestic violence threats, assaults and murders as the serious crimes that they are.

    According, to a 1994 report from the Centers for Disease Control and Prevention, at least 6% of all pregnant women in this country are battered by the men in their lives. As an attorney representing victims of domestic violence, I have seen the effects of this violence first hand. Several years ago, a client of mine lost a pregnancy due to domestic violence. While she was 8 months pregnant, her batterer lifted her up in his arms and held her body horizontal to the ground. He then slammed her body to the floor causing her to miscarry. No matter how many stories like this I hear, it never ceases to sicken me. I should note that in this case and others I have worked on, it was clear by the batterer's words and actions that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control her. We, as a society, are right to want to address this problem and protect women from such a fate. However, our response to the problem should be one that truly protects the pregnant woman.

 Page 80       PREV PAGE       TOP OF DOC
    The ''Unborn Victims of Violence Act'' is not designed to protect women. The goal of the Act is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence. Instead the focus often will be switched to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other violence against women.

    Moreover, passage of the ''Unborn Victims of Violence Act'' would set a dangerous precedent which could easily lead to statutory chances that could hurt battered women. This bill would, for the first time, federally recognize that the unborn fetus could be the victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms. In fact, some states have already made that leap and, in those states, women have been prosecuted and convicted for acts that infringe on state recognized legal rights of a fetus. While the ''Unborn Victims of Violence Act'' specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for the violence perpetrated on her by her batterer under a duty to protect theory. Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage and, if she is financially or emotionally reliant on her batterer, may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for an offense as serious as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all women.

    The harmful potential of this bill is, unfortunately, balanced by little or no additional protections for battered women and other women victimized by violence. The vast majority of domestic violence threats, assaults and murders—like other crimes of violence—are prosecuted by the states. While important federal laws exist to prosecute interstate domestic violence and interstate violation of a protection order, these are stop-gap statutes which are appropriately applied in a very small number of cases relative to the incidence of domestic violence nationwide. In fact, the federal domestic violence criminal statutes have been called into play less than 200 times in the last four years. As the ''Unborn Victims of Violence Act'' would only apply in federal cases, the chance in the law would do little, if anything, to address the crime of domestic violence in our country or other assaults on pregnant women.
 Page 81       PREV PAGE       TOP OF DOC

    I hope you agree with me that the crime of domestic violence is a horrendous one, not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can be no doubt that a pregnancy lost due to domestic violence greatly increases that toll on a battered woman. We at the National Coalition Against Domestic Violence wish to fully recognize and respond to that loss. However, the more appropriate means of dealing, with this problem with respect to battered women is to provide comprehensive healthcare, safety planning, and domestic violence advocacy for victims. This solution would maintain the focus of any criminal prosecution on the intended victim of violence—the battered woman—and make an important affirmative step toward providing, safety for her. If Congress wishes to protect the pregnancy, the way to do that is by protecting the woman.

    Mr. CANADY. Thank you, Ms. Fulcher.

    The subcommittee will now stand in recess while the members vote. We will return and conclude the hearing.

    [Recess.]

    Mr. CANADY. The subcommittee will be in order. We will proceed.

    Again, I extend my apology to all the members of the panel for the numerous delays this afternoon.

 Page 82       PREV PAGE       TOP OF DOC
    We will now go back to our witnesses in the order in which I have introduced them, and I will ask Mr. Weich to present his testimony.

STATEMENT OF RONALD H. WEICH, PARTNER, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER

    Mr. WEICH. Thank you, Mr. Chairman, members of the subcommittee. My name is Ronald Weich, I am a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor and Kolker. I am pleased to appear before you today to discuss the criminal law and sentencing implications of H.R. 2436. In addition to the credentials that the chairman mentioned, I would just point out that I am also a former prosecutor, having served as an Assistant District Attorney in New York City, and I served as Special Counsel to the United States Sentencing Commission.

    I will summarize my testimony very briefly. I have one fundamental point this bill is unnecessary. Current Federal law provides ample authority for the punishment of criminals who hurt fetuses. H.R. 2436 adds nothing meaningful to the charging arsenal of Federal prosecutors or the sentencing options available to Federal judges. With all due respect to the chairman, every single one of the examples in the chairman's statement and, indeed, the examples offered by witnesses at the hearing can be or were adequately addressed by Federal law, and I would be pleased to detail that in response to questions.

    But because the bill is unnecessary from a criminal law perspective, I suspect that its purpose instead is to score rhetorical points in the never-ending struggle over abortion rights. I am going to briefly describe why I think the bill is unnecessary in light of current Federal law and then explain why I believe it is an unwise addition to Federal law.
 Page 83       PREV PAGE       TOP OF DOC

    In my written testimony, I describe, as Ms. Stuart said, the fact that Federal criminal jurisdiction over violent crimes is very, very limited. There are very few of the cases. They mostly involve Federal enclaves such as Indian reservations. But while there is limited case law on this question that the subcommittee's bill poses, this case law suggests that fetal assault can be adequately punished under existing statutes.

    I would refer the subcommittee to the case of U.S. v. Spencer, a 1988 9th circuit case that I describe in my written testimony, in which a Native American defendant assaulted a pregnant woman on an Indian reservation, kicking and stabbing her in the abdomen. The woman was successfully treated for life-threatening injuries but her fetus was born alive and then died 10 minutes later. The 9th circuit upheld the defendant's conviction under the Federal murder statutes, 18 USC 1111. So even without the help of H.R. 2436, a Federal defendant was successfully prosecuted for murdering a fetus.

    Analytically separate from the question of criminal liability is the issue of punishment, sentencing, and, here again, current Federal law is completely sufficient. I cite in my testimony a number of court cases. Courts have uniformly held that the Federal Sentencing Guidelines allow for a sentencing enhancement based on the pregnancy of the victim or injury to the fetus. Typically, it involves a two level or 25 percent enhancement for physical injury to a pregnant woman. I would note in particular the existence in the Federal Sentencing Guidelines of section 3A1.1 which provides a two-level enhancement based on the vulnerability of the victim, and there are cases that I cite which hold that pregnancy suffices to meet that requirement.

    In sum then, this bill does not add to the well-established common law principles upon which Federal courts have held that criminals can be punished for harming fetuses. But if it were merely unnecessary, that wouldn't be much of an argument against this bill. The members of the committee are well aware that there are redundancies in the Federal Criminal Code. The problem here is that for three reasons, the bill constitutes an undesirable addition to the code.
 Page 84       PREV PAGE       TOP OF DOC

    First of all, it is drafted in a structurally unsound manner. My colleague, Ms. Stuart, has explored that in her testimony and I won't be repetitious, but I do refer the committee to my written testimony in which I point out the issues regarding whether a defendant needs to be convicted separately of the underlying Federal offense before this statute could kick in.

    Second, the bill is extremely over-broad. I note first of all that it references a definition of bodily injury that derives from consumer safety legislation, and applies any time there would be physical pain to the fetus or any other injury to the fetus, no matter how temporary. As Ms. Stuart said, that kind of thing is a charging nightmare for Federal prosecutors and raises significant proof problems.

    But, in addition, this bill would appear to apply to fetuses whether they are viable or not, and that is an extreme departure from the common law rule. The bill, and I obviously defer to Congressman Graham as to his intent, but it says a child ''in utero,'' and I don't know if that is intended to apply, for example, to a first trimester pregnancy. If it does, then the bill is an extreme departure from current law.

    Finally, I must say that, because I find the bill to be unnecessary from a criminal law perspective, I think the bill is a transparently rhetorical exercise in the perennial effort to undermine Roe v. Wade. It is no accident that the bill says nothing about injuries to pregnant women and, instead, the newly created title is styled ''Protection of Unborn Children.'' Of course, there is an explicit exception to the criminal penalties in the bill for conduct relating to an abortion, but make no mistake, the bill is just one more step in the anti-abortion movement's methodical strategy to humanize fetuses, marginalize women, demonize abortion providers and make the image of abortion less palatable to the American people, and the extreme overbreadth of the bill flows from that strategy. So I urge the subcommittee to reject this unwise bill.
 Page 85       PREV PAGE       TOP OF DOC

    [The statement of Mr. Weich follows:]

PREPARED STATEMENT OF RONALD H. WEICH, PARTNER, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER

    Mr. Chairman and members of the Subcommittee: My name is Ronald Weich and I am a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker. I am pleased to appear before you today to discuss the criminal law and sentencing implications of H.R. 2436, the ''Unborn Victims of Violence Act.''

    I bring several qualifications to this task. From 1983 to 1987, I worked as an Assistant District Attorney in New York City, where I prosecuted a wide array of criminal cases. Thereafter I served as Special Counsel to the United States Sentencing Commission and participated in drafting amendments to the federal sentencing guidelines. I then served on the staff of several Senate committees where I assisted in the development of federal crime and sentencing policy. I am now in private practice, but I continue to serve on the advisory board of the Federal Sentencing Reporter, a scholarly journal in which I have frequently published articles on sentencing law and policy. I am also a member of the Criminal Justice Council of the American Bar Association.(see footnote 3)

    After reviewing H.R. 2436 in light of my experience in the criminal justice system, my knowledge of the federal sentencing guidelines and an examination of relevant case law, I reach one basic conclusion: this bill is unnecessary. Current federal law provides ample authority for the punishment of criminals who hurt fetuses. H.R. 2436 adds nothing meaningful to the charging arsenal of federal prosecutors or the sentencing options available to federal judges.
 Page 86       PREV PAGE       TOP OF DOC

    Because the bill is unnecessary from a criminal law perspective, I suspect that its purpose, instead, is to score rhetorical points in the never-ending struggle over abortion rights. But for reasons that I will explain, I strongly object to the use of the federal criminal code as a battlefield in the abortion wars.

    I will first describe why the bill is unnecessary in light of current federal law and then explain why I believe it is an unwise addition to federal law.

I. H.R. 2436 IS UNNECESSARY.

    Current federal law already provides sufficient authority to punish the conduct that H.R. 2436 purports to punish.

    At the outset it should be understood that very few violent crimes are prosecuted in the federal courts. Most street level violent crimes are prosecuted under state law by state prosecutors in state courts. Under our constitutional system, federal criminal jurisdiction only exists if the crime implicates federal civil rights or interstate commerce—which few violent crimes do—or if the crime occurs on a federal enclave such as a federal office building, a military base or an Indian reservation. Thus there are only a handful of federal murder and assault prosecutions each year, and most of those involve Native Americans.

    H.R. 2436 targets relatively rare conduct to begin with, namely criminal assault on a fetus. And in the federal context, that rare conduct is even more unusual. I researched federal case law and found only one reported case in recent years in which the victim of the offense of conviction was a fetus. In that case, US v. Spencer, 839 F.2d 1341 (9th Cir. 1988), the Native American defendant assaulted a pregnant woman on an Indian reservation, kicking and stabbing her in the abdomen. The woman was successfully treated for life-threatening injuries, but her fetus was born alive and then died. The Ninth Circuit upheld the defendant's conviction under the federal murder statute, 18 U.S.C. §1111. Thus, even without the help of H.R. 2436, a federal defendant was successfully prosecuted for murdering a fetus.
 Page 87       PREV PAGE       TOP OF DOC

    The Spencer decision is significant for several reasons. First, it illustrates how rare such cases are in the federal system—the court refers to the issue of federal criminal liability for fetal death as one of ''first impression'' and in the 11 years since it was decided, Spencer has never been cited by another court. While there may be isolated incidents that can be addressed under existing federal or state law, there is no crime wave of federal fetal assaults crying out for a legislative solution. But even should this rare scenario present itself in federal court again, Spencer stands for the proposition that criminal liability may be imposed under current federal statutory provisions. The Spencer court relies on the well established common law doctrine, developed in state courts, that fetal death subsequent to birth due to fetal injuries may be prosecuted as homicide. See, Annotation, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (1998).

    Analytically separate from the question of criminal liability is the question of punishment. Here again, current federal law is sufficient. There is no dispute that causing harm to a fetus during the commission of a federal felony should generally result in enhanced punishment, and courts have uniformly held that such enhancements are available under the current sentencing guidelines. For example, in both U.S. v. Peoples, 1997 U.S. App. LEXIS 27067 (9th Cir. 1997) and U.S. v. Winzer, 1998 U.S. App. LEXIS 29640 (9th Cir. 1998), the court held that assaulting a pregnant woman during a bank robbery could lead to a two level enhancement (approximately a 25% increase) under §2B 1. I (b)(3)(A) of the Guidelines relating to physical injury. In U.S. v. James, 13 9 F.3d 709 (9th Cir. 1998), the court held that a pregnant woman may be treated as a ''vulnerable victim'' under §3A1.1 of the Guidelines, again leading to a two level sentencing enhancement for the defendant. And in United States v. Manuel, 1993 U.S. App. LEXIS 14946 (9th Cir. 1993), the court held that the defendant's prior conviction for assaulting his pregnant wife warranted an upward departure from the applicable guideline range for his subsequent assault conviction.
 Page 88       PREV PAGE       TOP OF DOC

    While there have been no federal death penalty prosecutions of civilians in recent years involving fetal assaults, the military justice system treats the murder victim's pregnancy as an aggravating factor to be considered during the capital sentencing phase of a trial. United States v. Thomas, 43 M.J. 550 (US Navy-Marine Corps Ct. of Crim. App. 1995). This holding follows state law precedents in which the pregnancy of the victim is a statutory aggravator in capital cases. See, e. g., Del. Code Ann. Tit. 11 , §4209(e)(1)(p) (Supp. 1986).

    The federal cases that already treat fetal injury as a relevant factor for establishing criminal liability or enhancing the defendant's sentence are consistent with a much larger body of state cases. Indeed, these state cases, which the Ninth Circuit relies on in Spencer and which are comprehensively collected at Annotation, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (1998), reveal that the issue of criminal liability for fetal injury is one that Anglo-American law long ago addressed and resolved in a common sense way. Several states, such as Georgia and Illinois, have enacted feticide statutes, but in other states the governing common law rule is that assaulting a pregnant woman and thereby causing the death of a viable fetus gives rise to criminal liability.

    In sum, H.R. 2436 is unnecessary because federal case law and the federal sentencing guidelines, building on well-established common law principles, already authorize serious punishment for the harm that the bill seeks to address.

II. H.R. 2436 IS DETRIMENTAL TO THE CRIMINAL JUSTICE SYSTEM.

 Page 89       PREV PAGE       TOP OF DOC
    To say that H.R. 2436 is unnecessary does not end the inquiry. As members of the Judiciary Committee well know, the federal criminal code is characterized by regrettable redundancy, and one more criminal law prohibiting what is elsewhere prohibited would barely add to the thicket. But for three reasons, H.R. 2436 would not only constitute an unnecessary addition to the Code, it would also be an undesirable addition.

    First, the bill has been drafted in a structurally unsound manner and will lead to considerable confusion and litigation. To be convicted under 18 U.S.C. §1841, the new criminal offense created by H.R. 2436, a defendant must have ''engage[d] in conduct that violates'' one of the existing federal crimes enumerated in §1841 (b). But must the defendant be convicted of one of those other offenses before he may be convicted of the separate offense under §1841? I think that is a sound reading of the statutory text, but the language is unclear. There is already considerable controversy and resource-draining litigation in the federal courts over whether various title 18 provisions constitute separate offenses requiring proof beyond a reasonable doubt or sentencing enhancements requiring only proof by a preponderance of evidence, see, eg., Jones v. United States, 119 S. Ct. 1215 (1999). H.R. 2436 would add to this confusion if there were ever a prosecution under the new criminal provision it establishes.

    This problem could be addressed if, instead of creating a new criminal offense, H.R. 2436 merely directed the Sentencing Commission to either establish a new sentencing enhancement when the victim of the crime is a pregnant woman, or make clear that a pregnant woman may be considered a ''vulnerable victim'' under existing §3A1.1 of the Sentencing Guidelines. As demonstrated above, the generic provisions of the Guidelines already accomplish this result. But at least a sentencing enhancement bill would not foster confusion and litigation.
 Page 90       PREV PAGE       TOP OF DOC

    Second, H.R. 2436 is overbroad. To begin with, it incorporates by reference an unduly broad definition of ''bodily injury'' from 18 U.S.C. §1365. Whereas the common law rule applied to termination of the pregnancy, H.R. 2436 would make it a violation of federal law to cause ''physical pain'' to the fetus or ''any other injury to the [fetus], no matter how temporary.'' 18 U.S.C. §1365 (g)(4). That definition may make sense in the consumer safety context from which it derives, but it is bizarre and extreme in the prenatal context of H.R. 2436. Further, H.R. 2436 applies to all fetuses, not merely those that are viable, and applies to unintentional as well as intentional conduct. The common law rule, evolved over centuries of Anglo-American jurisprudence, is that an assault causing the death of a viable (or, in the archaic phrase, ''quickened'') fetus gives rise to criminal liability. The rule in H.R. 2436 is that an assault unintentionally causing ''pain'' to a weeks-old fetus gives rise to criminal liability.(see footnote 4)

    Third, the bill is a transparently rhetorical exercise in the perennial effort to undermine Roe v. Wade. Since H.R. 2436 adds nothing meaningful to substantive federal criminal law, its purpose is purely symbolic: to bestow statutory personhood on fetuses, even those that are not viable.

    It is no accident that the bill says nothing about injuries to pregnant women; instead the newly created title is styled ''PROTECTION OF UNBORN CHILDREN.'' An assault on a fetus cannot occur without an assault on the pregnant woman, but the bill is deliberately framed in terms that ignore the woman. To be sure, there is an explicit exception to the criminal penalties in the bill for ''conduct relating to an abortion'' but make no mistake—this bill is just one more step in the anti-abortion movement's methodical strategy to humanize fetuses, marginalize women, demonize abortion providers, and make the image of abortion less palatable to the American people. The extreme overbreadth of H.R. 2436 flows directly from that strategy.
 Page 91       PREV PAGE       TOP OF DOC

    The validity of the constitutional protections established in Roe v. Wade exceeds the scope of this testimony and is beyond my field of expertise. But as someone who cares deeply about the integrity of the criminal law, I cringe to see a skirmish in the abortion wars flare up unnecessarily in the federal criminal code. The criminal justice system is built on ancient principles such as proportionality of punishment and the requirement that a wrongdoer have acted with intent to cause harm (mens rea). H.R. 2436, crafted as it apparently was with an eye toward public relations rather than public safety, ignores these principles and thereby corrodes respect for the criminal law as a whole.

    Because I believe H.R. 2436 to be both unnecessary and unwise, I urge the subcommittee to reject it.

    Mr. CANADY. Thank you, Mr. Weich. You receive the award for brevity.

    Mr. WEICH. Thank you. [Laughter.]

    Mr. CANADY. Judge Dempsey. Awards are still available, so let's make that clear.

STATEMENT OF TERRY M. DEMPSEY, JUDGE, DISTRICT COURT, 5TH JUDICIAL DISTRICT, ST. JAMES, MN

    Mr. DEMPSEY. Mr. Chairman, members of the committee, my name is Terry Dempsey, and I want to thank you for allowing me to appear before you today. I appear here not on behalf of the judiciary of the State of Minnesota, but as a person who as a member of the Minnesota House of Representatives. A similar issue came to my attention as a member of that House.
 Page 92       PREV PAGE       TOP OF DOC

    What gave rise to it was the tragic accident that involved a woman who was operating a motor vehicle 1 day. A drunk driver was coming in the other direction, collided with her car. She was over 6 months pregnant and the resulting accident caused the death of her unborn child. At that time our statutes did not provide any penalty for someone causing such an injury or even the case of the death of the fetus.

    There was strong outpouring of sentiment that such conduct should be punishable under our criminal law, albeit there is civil liability, the mere result, insurance coverages and other factors come into play, those didn't seem to be an adequate remedy for this.

    So the Minnesota statutes were amended by a bill that I authored. At the outset there was a discussion about the motives for this legislation, as you have heard here today. But it is just something more than just attaching criminal sanctions to the conduct that I was addressing. But the bill did pass and became law.

    There was not a lot of interest in the law until a case was brought in the District Court in Northern Minnesota. The charge seemed to generate some question about the motives of those who supported this legislation. Was there really wrongful conduct warranting criminal prosecution or was it a ruse to somehow confer upon the unborn a standing that might lead to other legislation or even court decisions of a similar nature? It even attracted one major news network to come to Minnesota and do a news story about it, and I was asked in the interview why the legislation was needed. Others were asked similar questions. That was over 15 years ago. Our legislation was remained intact as it was originally passed for that full 15 years.

 Page 93       PREV PAGE       TOP OF DOC
    Those of us who supported the legislation, and even now some of those who at that time did not and had reservations, see this as an appropriate piece of legislation, and they agreed it was not an attempt to erode the Roe v. Wade decision of a person's right to an abortion, but it was the right thing to do.

    As a learned judge I have not seen any attempt to use the law for any purpose except to punish those who break the provisions of the law. Is it an absolute deterrent to crimes? No. Is any law an absolute deterrent to crime? No. But I can say with some degree of certainty and surety that in addition to being enacted and making certain acts criminal, it also kind of closes a glitch in the law. Many persons who have been affected by the actions of people who have caused the death of an unborn child, the fetus, if you will, felt that there was no remedy. This law has now given them that, and I think there is something to meeting that kind of a need.

    Let me tell you that before you consider this bill, I hope you look to the Minnesota experience as a precedent. It is an experience that has had a number of Supreme Court decisions that directly related to the constitutionality of these provisions. It relates to the question of the Roe v. Wade. It relates to the question of foreseeability. It relates to the questions of whether or not a person can be charged with a crime for killing the fetus when you attack the mother.

    In that case, the most recent, one of the best cases that I can cite to you, and I hate to do this, it sounds a little bit like a law school course is State v. Merrill, 450 Northwest 2nd 318. There were 18 separate challenges to the constitutionality of this law. Every one of those were directed to the Supreme Court on the certification, everything from Roe v. Wade down to foreseeability. I can assure you that the decision written by Justice Simonette at that time addressed those very eloquently, and in each case he found that the law was constitutional, that the law did not erode the rights of a person to choose in a Roe v. Wade.
 Page 94       PREV PAGE       TOP OF DOC

    Let me indicate to you one of the things he said, and I will quote in closing, ''Roe v. Wade protects the woman's right of choice. It did not protect, much less confer on an assailant, a third party, the unilateral right to destroy a fetus.'' So, I again want to thank you for the opportunity to address this issue based upon the Minnesota experience and I think our law is one that has withstood the test of time and also the test of constitutionality challenge. Thank you.

    Mr. CANADY. Thank you, Judge Dempsey. You get the green light award for superlative brevity.

    Professor Arkes.

    Mr. ARKES. Are we going to switch? I think we are going to switch and have Professor Bradley go on.

    Mr. CANADY. I think we are okay. You can proceed.

    [The statement of The Honorable Terry M. Dempsey follows.]

PREPARED STATEMENT OF TERRY M. DEMPSEY, JUDGE, DISTRICT COURT, 5TH JUDICIAL DISTRICT, ST. JAMES, MN

    My name is Terry Dempsey, and I want to thank you all for allowing me to appear before this committee to address issues that I feel are important.
 Page 95       PREV PAGE       TOP OF DOC

    As a member of the Minnesota House of Representatives, a similar issue came to my attention, and I felt strongly that it merited a legislative response. What gave rise to the issue was a tragic automobile accident that involved an expectant mother who was operating her vehicle on a normal driving day. Sometime before she could complete her trip, her automobile was involved in a collision. Her car and one being operated by a drunk driver collided. Although the mother wasn't seriously injured, the collision did result in the death of her unborn child. The mother was beyond her sixth month of pregnancy.

    Our statutes at the time did not provide for any penalty for someone causing such an injury—in this case the death of the fetus. There was a strong outpouring of sentiment that such conduct should be punishable under our criminal law. Albeit, that civil liability may result, with insurance coverages and other factors coming into play, that did not seem to be an adequate remedy.

    Minnesota Statutes were amended by a bill I authored. At the outset there was some discussion that the motives for the legislation was something other than to attach criminal sanctions for such conduct, but the bill passed and became law. There was not a lot of interest in the new law until a case was brought in District Court in northern Minnesota. That charge seemed to generate some questions about my motive and those who voted for the legislation. Was it really wrongful conduct warranting criminal prosecution, or was it a ruse to somehow confer upon the unborn a standing that might lead to other legislation or even court decisions of a similar nature. It even attracted one major news network to come to Minnesota to do a short news story about it on network TV. I was asked in an interview about why the legislation was needed; others were similarly asked the same question. That was a number of years ago. The law remains intact today. Those of us who supported the legislation, and now even some of those who at one time had reservations about the precedent that it might set, agree it wasn't an attempt to erode the Roe v. Wade decision of a person's right to an abortion, but was the right thing to do.
 Page 96       PREV PAGE       TOP OF DOC

    As a lawyer and a judge, I have not seen any attempt to use the law for any purpose, except to punish those who break its provisions. Is it an absolute deterrent to the crimes they address? I can't say. But I can say with some degree of surety that for those who are affected by the conduct which this Minnesota statute addressed, agree that it closed a glitch in the law that had existed by making such conduct a criminal offense. To defeat the proposal before you based on some fear that this might be a slippery slope and used to ''confer'' or ''attribute'' rights to the unborn is contrary to the experience in Minnesota. Our statutes do not deal with the right of abortion, nor do they conflict with the U.S. Supreme Court decisions on abortion. In truth and in fact, the legislation in Minnesota addresses the conduct of a person as it affects the lives of others and hasn't been expanded beyond that by our courts, nor have I seen any attempt that it be used for other purposes.

    As you consider the proposal before you, I hope you will look to the Minnesota experience as a precedent. The legislation is similar, and the reasons for passage are evident. The reason for opposing this legislation I feel cannot be on the merits of the proposal, but rather a feeling that there might be some side effects that some may attempt to use this legislation for purpose beyond the sanctions attached to a criminal act. I doubt that such attempts would be successful based upon what has occurred in Minnesota. There is clearly a wrong to be addressed by the bill you are considering.

    Thank you again for letting me discuss my feelings and experiences with you.

STATEMENT OF HADLEY ARKES, EDWARD NEY PROFESSOR OF JURISPRUDENCE AND AMERICAN INSTITUTIONS, AMHERST COLLEGE
 Page 97       PREV PAGE       TOP OF DOC

    Mr. ARKES. Thank you, Mr. Chairman.

    My name is Hadley Arkes. I am the Edwin Ney Professor of Jurisprudence in American Institutions at Amherst College, where I have been for 33 years. The last time I was before the committee I tried to compress these remarks Hebraically by omitting the vowels.

    I am here to support H.R. 2436, titled the Unborn Victims of Violence Act of 1999, and in describing this act I was drawn to some words of Lincoln describing an earlier, very modest measure, running deeply, where he said, ''It comes gently without rending or wrecking anything.'' This bill does not seek to extend Federal jurisdiction, it achieves its end mainly by filling out the authority that is already in place.

    The bill, as I understand it, is carefully cabined to apply only to those acts of killing that arise in crimes that are already covered under Federal jurisdiction. Now, what Federal jurisdiction covers has always been a tangled question among us.

    We have to remind ourselves it is only within our own lifetimes that we thought it necessary to bring forth a distinct Federal authority to protect the President of the United States. At the turn of the century, there were serious arguments on the court as to whether it was necessary or appropriate to protect Justices of the Supreme Court from assaults directed at them. The plausible arguments there were deep and serious concerns about the question of whether the Federal laws could protect private persons assaulted by other private persons. But we passed that threshold in the litigation arising over civil rights, and especially in the case of three civil rights workers murdered in the South in the mid-60's. Without crossing that threshold, it would be hard to account for the accumulation of statues we have seen since that time extending the Federal jurisdiction to drive-by shootings in the cases dealing with drugs, or the obstruction of abortion clinics.
 Page 98       PREV PAGE       TOP OF DOC

    I may point out to my other colleagues that in all these instances involving the predicate of this legislation, those subjects were already covered by local law. You could argue this wasn't necessary and the purpose behind the move to a Federal law was to raise our sense of the seriousness or gravity of the crime, and that would remain, I would submit, that meaning of the law and teaching a lesson would remain even if prosecutors didn't think they had the wit to overcome those problems that were just described here, and didn't even prosecute a case over the next couple of years.

    In order to oppose this current bill, it seems to me that one would have to begin by arguing that the extension of Federal jurisdiction in all these other statutes had been improvidently done. But even so, as I understand it, even so, it would not affect the substance of this bill because the drafters of this bill have tried to keep close to the contours of the Federal law, so that even if we changed our minds, say about drive-by shootings, this bill would simply concentrate on the domain of Federal jurisdiction that remains. Presumably, even the most contracted Federal Government would still have the Federal Government chiefly concerned about the crimes committed in the military. In that case, this law would apply with a dramatic relevance to the case described before about Mr. Robbins, an enlisted man in the Air Force who beat up his wife, but killed the child. I think it does a rather strange rendering of reality to say that we can understand this case only by translating the lethal harm done to the child into some other less than lethal harm done by the mother.

    For cases of this kind, the bill would make a profound difference, but, again, it would not make that difference by extending the Federal jurisdiction into new domains. Its novelty, if we can call it that, would come only by extending the protections of life to innocent human beings who are present on the scene but covered in their mother's womb. Well, that is the point that makes it so unsettling for the proponents of abortion. Yet this bill, I should point out, rests on premises that even the proponents of choice on abortion have been compelled to accept.
 Page 99       PREV PAGE       TOP OF DOC

    In recent years writers like Naomi Wolf and Camille Paglia, pro-choice writers, have insisted to us that it is utterly implausible to make the case for choice by assuming that we have any serious doubts about the species or the human standing of that being in the womb. If we didn't know that there was a child there, the problem of an unwanted pregnancy would simply dissolve in its significance.

    But beyond that, the proponents of choice have supported actions to prosecute or recover damages for the injuries done to unborn children where pregnant women have decided to carry their pregnancies to term, whether children in the womb are regarded as babies wanted by mothers, the proponents of choice are not in a position to deny those understandings of the mothers and deny that those children in utero have no standing in the law.

    In that case there is nothing novel here and this current bill offers nothing that need be unsettling to abortion rights. Well, then why should this bill be supported by those people who are styled pro-life? The bill is carefully limited, but at the same time it plants in the Federal law the premise that unborn children are indeed beings of jural standing, beings who can receive the protections of the law, and that the authority of Congress does in fact reach to the protection of unborn children, at the very least, in the places where Federal Government can now reach.

    I think I can finish in one more minute, Mr. Chairman.

    The law has lived now with contradictions over many years which have not unhinged abortion rights. In some cases we know the child of the womb is given standing as the inheritor of legacies and for claims against negligent drivers and others, where the mother has decided on an abortion, the other child is treated as a legal non-entity with no injuries that the law can recognize.
 Page 100       PREV PAGE       TOP OF DOC

    The opponents of this bill no doubt suspect that the intention of the law is to lend just a bit more weight to the parts of the law that seek to protect the child. But at the same time the bill also works to remind the partisans of choice that they, too, in many ways affirm their understanding that there is nothing other than a human being, a small child in the womb, and I may put the question to them with a wholesome, gentle strain of just how long they could preserve the fiction that they don't know what is in the womb or that killing is taking place.

    In my own judgment, this current bill would find its fuller significance when Congress finally puts into place the understanding that there are limits to the right of abortion, even if only at the point of birth. My own prayer is that Congress will resume its efforts along this very line to put into place those premises running even deeper yet. In the meantime, this bill, even in its limited compass, accomplishes a profound good, it promises to save lives. So I close again with a line, reworking a line from Lincoln, and say as he said of an earlier modest measure, ''May the vast future not have to lament that we have neglected to do this modest but telling thing.''

    [The statement of Mr. Arkes follows:]

PREPARED STATEMENT OF HADLEY ARKES, EDWARD NEY PROFESSOR OF JURISPRUDENCE AND AMERICAN INSTITUTIONS, AMHERST COLLEGE

    Chairman Canady, Members of the Committee:

 Page 101       PREV PAGE       TOP OF DOC
    My name is Hadley Arkes. I am currently the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. I've taught at Amherst for the past 33 years, with the exception of several years in which I have been in Washington on leave and visiting at places like the Brookings Institution, the Woodrow Wilson Center at the Smithsonian Institution, and Georgetown University. My main interests as a writer and a teacher have been focused on political philosophy, public policy, and constitutional law. I have written, in that vein, several books, published by Princeton University Press, including The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). My principal concerns in recent years have been with the so-called ''life issues,'' of abortion and euthanasia, and if it suits the Committee I can append a list of my publications bearing on those issues.

    I am here today to testify on behalf of HR 2436, a bill titled as the ''Unborn Victims of Violence Act of 1999.'' It might be said of this bill what Lincoln said of that rather moderate and modest bill he proposed to encourage the gradual and compensated removal of slavery: that it would come ''gently as the dews of Heaven, not rending or wrecking anything.'' The bill does not seek to extend the federal jurisdiction; it achieves its end mainly by filling out the authority that is already in place. The bill is so carefully cabined or limited that it reaches only the killings that are committed in the course of crimes that clearly fall now within the jurisdiction of the federal government. That question, of what the federal jurisdiction reaches, has been one of the most maddening and vexing questions in our law, and it seems to me bound up with some of the insoluble problems of a national government professing at the same time to be the government of a federal republic. It was only within our own lifetimes that it was thought appropriate to bring forth a distinct federal authority to prosecute for the murder of a president of the United States. We ought to recall that, if Lee Harvey Oswald had gone on trial, he would have been tried for a homicide under the laws of Texas. We ought to recall, too, that there were plausible arguments against the need or justification for that extension of authority, just as there were plausible arguments in the Supreme Court, at the turn of the century, as to whether the federal government could act distinctly to protect justices of the Supreme Court who were threatened or assaulted. [See In re Neagle, 135 U.S. 1 (1890)] And if there were plausible arguments on those points, it was all the more problematic when the federal statutes were extended to cover the assault by private persons on private citizens, holding no office. But a generation ago, the murder of three Civil Rights workers in the South, by thugs allied with a local sheriff, brought us past another threshold here in our understanding of the federal jurisdiction. [U.S. v. Price, 383 U.S. 977 (1966).]
 Page 102       PREV PAGE       TOP OF DOC

    Without the crossing of that threshold, in the cases on civil rights, it would be hard to account for the accumulation of statutes since that time, extending the federal authority to cover drive-by shootings in cases dealing with drugs, or acts of intimidation by private persons who might be obstructing the access to abortion clinics. It would be rather late in the day, then, to invoke concerns about ''States' rights'' and raise an earnest question about the reach of the federal government in these cases. Nor would it be apt to argue that acts of fetal homicide could be covered already under local law, since in virtually all of these other cases, the crimes were already covered by local law. The argument for a federal law had something to do with teaching new lessons about the seriousness of the crime by raising it to the level of a federal offense. That is the only plausible account that may yet be given about the need for the federal government to be addressing ''hate crimes'' and ''sexual harassment.'' In order to oppose the current bill, it seems to me that one would have to begin by arguing that the federal jurisdiction was wrongly extended in any these statutes that provide the ''predicate'' for this bill.

    Those kinds of arguments may always be in season, but even if we changed our minds, say, on the matter of drive-by shootings over drugs [18 U.S.C. Sec. 36], that would not affect the substance of this bill. For this bill seeks to follow, closely, the contours of the federal jurisdiction. Its framers seem content to focus only on the matters clearly within the reach of the federal government, and for them that is already an important scaling down in the name of moderation. Even if we repealed the statutes on drive-by shootings, or the protection of access to abortion clinics, the bill would simply apply to the domain of federal jurisdiction that remained. Presumably, the federal government would continue to bear a distinct responsibility, say, for crimes committed within the military. And so this bill could bear, with a dramatic relevance, on the recent case of an enlisted man in the air force who beat his wife and caused the death of the child she was carrying (U.S. v. Robbins, argued before the Court of Appeals for the Armed Forces in May, 1999).
 Page 103       PREV PAGE       TOP OF DOC

    In that case, Gregory Robbins was charged with several offenses, but prosecutors for the Air Force did not think they could charge him for the killing of the unborn child who had already been given the name of Jasmine. For cases of this kind, this bill would make a profound difference. But again, it would not make that difference by extending the federal jurisdiction into new domains. Its ''novelty,'' if we could call it that, comes by only by extending the protections of life to the innocent human being who is present on the scene, but covered in her mother's womb. Yet, that is to say, the federal law would be filled out by adding what we should have understood to have been there all along. For we would simply adjust the federal law more precisely to the understanding of the Founders, as reflected, for example, in James Wilson, one of the framers of the Constitution and a member of the first Supreme Court. In his first lecture on jurisprudence in 1790, Wilson reminded his audience that the purpose of the government was to secure and enlarge our ''natural rights,'' and if there were natural rights, the question was, When did they begin? Wilson's answer was that they began as soon as we ourselves began to be:

  In the contemplation of law, [wrote Wilson] life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger. [James Wilson, ''Of the Natural Rights of Individuals,'' in The Works of James Wilson (Cambridge: Harvard University Press, 1967; originally published in 1804), Vol. 2.]

    This understanding is, of course, quite unsettling to the partisans of the ''right to abortion,'' and yet this bill rests on premises that even the proponents of ''choice'' on abortion have been compelled to accept. In prominent articles in recent years, ''pro-choice'' writers like Naomi Wolff and Camille Paglia have insisted that the pro-choice argument cannot plausibly begin with the claim that we have any doubts about the species, or the human standing, of the child in the womb. If we did not know that there was indeed a child there, the problem of an ''unwanted pregnancy'' would dissolve. If that organism was a bird or an orange, there is less moral difficulty in disposing of an unwanted bird or orange. But beyond that, the proponents of ''choice'' have supported the actions to prosecute, or recover damages, for the injuries done to unborn children. Where pregnant women have decided to carry their pregnancies to term, where their children in the womb are regarded as babies, wanted by their mothers, the proponents of choice seem to have been obliged, by their own principles, to recognize the standing of those unborn children as human beings in utero, whose injuries then have standing in the law.
 Page 104       PREV PAGE       TOP OF DOC

    From that perspective, this current bill offers nothing that need be unsettling to the proponents of ''abortion rights.'' And in fact, the bill makes it clear, in two places, that it does not threaten Roe v. Wade, or call into question the ''right to abortion.'' That must be taken as a sign of the prudence shown by the drafters of the bill: They knew that they would be inviting a sweeping rejection of this measure in the courts if this bill were thought to be a device for making a nullity out of Roe v. Wade. But for the same reason, it should be understandable that this bill would raise concerns among those of us who have sought to extend the full protections of the law to unborn children. It certainly must stand as an exemplary awkwardness here that the law would protect the right of a woman to destroy her unborn child, but that if she is assaulted on the way into the abortion clinic, she could then sue for damages that may be done to that same child! The problem, for some of us, can be crystallized in this way: The bill could have been written only in its current form, with its explicit acceptance of Roe v. Wade; and yet, the law cast in that way threatens to confirm the deeper premises of Roe v. Wade—namely, that the child bears no intrinsic dignity in herself, as a human being with a claim to the protections of the law. The child will be protected by federal law only if her existence accords with the interests or convenience of her mother. She is protected by the law only if the mother is pleased to have her live.

    Why, then, should this bill be supported by those people who are styled ''pro-life''? I would suggest that this bill has a mix of properties we have seen only in rare cases: there is the most limited reach of the bill, staying closely to the contours of what the law permits, but at the same time, as everyone can sense, the bill draws on an understanding of principle running deep. The bill is carefully limited, but at the same time it plants, in the federal law, the premise that unborn children are indeed beings of jural standing—beings who can receive the protections of the law; and that the authority of Congress does in fact reach to the protection of unborn children, at the very least, in the places where the federal government can now reach. The protection of federal law is not confined to ''citizens,'' or ''residents'' or ''inhabitants,'' because it may extend to aliens or visitors. And it is not confined to ''persons'' because it may be extended to cover animals or ''endangered species.'' It is hardly a stretch then for the law to encompass, in its protections, those human beings who are as yet strangers because they have not yet left the womb—but whose faces and features may be known already to their parents and families through sonograms.
 Page 105       PREV PAGE       TOP OF DOC

    On the other side, the people who style themselves ''pro-choice'' may find consolation in the fact that the law has lived now, for many years, with contradictions of this kind, without undoing the right to abortion. Several years ago a judge in Washington, D.C. confined a woman in prison because, as a ''crack'' addict, she was endangering her unborn child. The irony, however, quite hard to miss, was that this woman could not have been divested of her constitutional ''right'' to an abortion; and so at any moment she could have removed the very ground of her incarceration by ordering up the surgery that would have removed, in a stroke, the object of the court's concern. In other parts of the law, we have seen unborn children in the womb invested with ''standing'' in courts as the inheritors of legacies, or as victims, with a claim to recover against negligent drivers. That is to say, our law has remarkably managed to preserve itself in this world of assumptions radically in conflict: On the one hand, the child in the womb is treated as a victim, with standing in the law to vindicate its injuries. On the other hand, when a woman elects an abortion, that same child is regarded as a legal nonentity, with no standing, or no ''injuries'' that the law can recognize. The opponents of this bill no doubt suspect that the intention of the law is lend just a bit more weight to the parts of the law that seek to protect the child. The current bill, H.R. 2436, simply reflects the anomalies that run through the law, and it can do nothing itself to dissolve them. But the bill also works to remind the partisans of ''choice'' on abortion that they too, in many ways, affirm their understanding that there is nothing other than a human being, a small child, in the womb; and it may put the question to them, with a gentle but wholesome strain, of just how long they can preserve the fiction for themselves that they don't know what is in the womb, or that killing is taking place.

    For those of us on the other side, the bill bears the promise of teaching something and lending a certain added, moral weight to the parts of the law that seek the protection of the child. Still, it is worth cautioning again that this bill would protect only those unborn children somehow caught up in those actions marked off, with clear boundaries, as federal crimes. It goes without saying that these unborn children are not the objects of intimidation, say, in preventing people from voting, serving on juries, filing claims under federal law. They may be only the closest relatives or people suffering those assaults, or they may be the victims of collateral damage. But here they are covered by the axioms of the law: If the federal government can protect presidents and congressmen, that authority must extend to those who would assault presidents and congressmen by assaulting their relatives or taking them hostage. If a person has no ''right'' to engage in shooting at a Post Office, he cannot be curiously insulated from any charges of wrongdoing, under the same statutes, if he happens to kill innocent bystanders.
 Page 106       PREV PAGE       TOP OF DOC

    My own hope is that the significance of this legislation may be enlarged, or come to its fuller meaning, when unborn children can become in themselves the objects of federal protection: The deprivation of ''life'' without due process of law, already contained in the Constitution, could be understood, once again, to apply to all human beings, as it was understood at the time of our Founding.

    Yet, as everyone knows, we are distant from that state of affairs right now. We can make a first step in that direction only when the Congress is able to establish, finally, that there is some limit on the right to abortion, even at the point of live birth. In my own judgment, the bill before us today would reach its fuller significance when Congress resumes its effort to put in place those premises, running even deeper yet.

    But that for another day; I don't mean to mix my missions. I am here today to support this bill, which in itself, in its own limited compass, accomplishes a profound good. For this modest measure may actually succeed in saving lives, and so I'd rework a line of Lincoln's and say—as he once said of another modest measure, running deep—may the vast future not have to lament that we have neglected to do this modest, but telling thing.

    Mr. CANADY. Thank you, Professor.

    Professor Rubin.

STATEMENT OF PETER J. RUBIN, VISITING PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER
 Page 107       PREV PAGE       TOP OF DOC

    Mr. RUBIN. Thank you, Mr. Chairman and members of the committee. My name is Peter Rubin and I am a Visiting Associate Professor of Law at the Georgetown University Law Center, where I teach constitutional law and criminal procedure. I am honored to have been invited here today by the subcommittee.

    Where an act of violence against a pregnant woman results in a miscarriage, that act of violence has wrought a distinct and unique harm, in addition to the harm it would have done had the woman not been pregnant. Similarly, injury to a baby that may result from unlawful violence perpetrated upon its mother when it was a fetus in utero is something from which Government may properly seek to protect the woman and the child.

    Consequently, some States have enacted laws that penalize conduct that may kill or, in some cases, injure a fetus in utero. For example, North Carolina law provides, and I quote, that ''a person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which injury results in a miscarriage or stillbirth by the woman, is guilty of a felony that is one class higher than the felony committed.''

    If the Members of Congress conclude that causing injury in this way during the commission of a Federal crime warrants additional punishment, it, too, could adopt such a provision. Indeed, it seems as though this is one area on which both sides of the debate about abortion might be able to find common ground in supporting a properly worded statute that might give additional protection to women and their families from this unique class of injury.

    As currently drafted, however, H.R. 2436 differs from some State laws on this issue in two critical respects. These will affect both its practical effectiveness and its usefulness as a tool for finding common ground on this issue.
 Page 108       PREV PAGE       TOP OF DOC

    To begin with, the proposed law refers to a, ''child who is in utero at the time the conduct takes places.'' Because it uses these words, the proposed law will likely result more in useless litigation than in prevention and punishment of conduct that results in fetal injury or death. This is not the way statutes ordinarily refer to fetuses in utero. This language may give a defendant an argument that the statute is ambiguous, that he lacked notice of what acts are criminal. Does it mean the statue applies only to the injury or death of a child, that is, one who is subsequently born but who was injured in utero? Does it refer to a fetus past the point of viability? Does it refer to a single cell fertilized ova that is not yet implanted in the uterine wall? The statute does not tell us.

    Second, the bill treats the fetus solely as a separate victim of certain Federal crimes, including fetuses within the universe of persons who may be protected from injury or death resulting from violations of other Federal criminal laws. Many States laws address fetal injury and death only in certain circumstances and, reflecting the unique nature of the developing fetus, many provide some penalty that is different from the penalty that would have applied had the defendant killed or injured a person who was already born. They tend also to take account of the fetus' stage of development.

    This law's approach, by contrast, may lead to some unintended consequences. Under the proposed law, for example, an anti-abortion protester who knocked a woman to the ground, in violation of the Freedom of Access to Clinic Entrances Act, would be subject to life imprisonment if she consequently had a miscarriage, even if he didn't know she was pregnant, instead of the 1 year he would otherwise face.

 Page 109       PREV PAGE       TOP OF DOC
    In addition to being far more practical in terms of preventing and punishing conduct that causes fetal injury or death, it would be far easier to reach common ground on this issue with adoption of a statute similar to those State statutes providing for enhanced punishments that I have described. The use of a statutory framework that seeks to achieve its result through treating all fetuses at all stages of development as persons distinct from the women who carry them unnecessarily places Federal statutory law on the path toward turning the pregnant woman into the adversary rather than the protector of the fetus she carries.

    The approach taken by the proposed law is also at variance with the American legal and constitutional tradition with respect to the treatment of the fetus. As the Supreme Court has described, the unborn have never been recognized in the law as persons in the whole sense, and, of course, the Court has held that fetuses are not persons within the meaning of the 14 amendment, a position with which even so staunch an opponent of Roe v. Wade as Justice Antonin Scalia agrees.

    Finally then, by treating the fetus as a separate person regardless of its stage of development, the proposed law would also unnecessarily set Federal statutory law on a conceptual collision course with the Supreme Court's abortion decisions. Whatever one may think of those decisions, an unnecessary conflict about them would not contribute to the important work of healing, where possible, the country's division over abortion. Thank you.

    [The statement of Mr. Rubin follows:]

PREPARED STATEMENT OF PETER J. RUBIN, VISITING PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER

 Page 110       PREV PAGE       TOP OF DOC
    I have been asked by this subcommittee to review and comment upon H.R. 2436, which would create a separate federal criminal offense where criminal conduct prohibited under a list of over sixty federal statutes, in the words of the proposed law ''causes the death of, or bodily injury . . . to a child, who is in utero.'' I am honored to have the opportunity to convey my views to the subcommittee.(see footnote 5)

    Where an act of violence against a pregnant woman results in a miscarriage, that act of violence has wrought a distinct and unique harm in addition to the harm it would have done had the woman not been pregnant. Similarly, injury to a baby that may result from unlawful violence perpetrated upon its mother when it was a fetus in utero is something from which government may properly seek to protect the woman and the child.

    Consequently, although many states adhere to the traditional rule that the criminal law reaches only conduct against a person already born alive, some states have enacted laws that penalize conduct that may kill or, in some cases, injure, a fetus in utero. One example is North Carolina's state statute which provides that

A person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which injury results in a miscarriage or stillbirth by the woman is guilty of a felony that is one class higher than the felony committed.

N.C. Gen. State. §14–18.2.

    If the members of Congress conclude that causing injury in this way during the commission of a federal crime warrants additional punishment, it, too, could adopt such a provision. Indeed, it seems as though this is one area on which both sides of the debate about abortion might be able to find common ground in supporting a properly worded statute that might give additional protection to women and their families from this unique class of injury.
 Page 111       PREV PAGE       TOP OF DOC

    As currently drafted, however, the proposed statute differs from some state laws on this issue in two critical respects. First is its use of the phrase ''child, who is in utero'' to describe the fetus. This is not the ordinary way statutes refer to fetuses in utero. Indeed, the proposed law appears to be unique in its use of this formulation. The use of this language will likely subject H.R. 2436 to legal challenge, and will likely render the proposed law ineffective in preventing and punishing acts that harm or kill fetuses being carried by pregnant women.

    Second is the bill's treatment of the fetus solely as a separate victim of certain federal crimes. This approach is different from that taken by some states that have enacted criminal laws addressing fetal injury or death in that it fails to focus at all on the woman who is the victim of the violence that may injure or kill the fetus. It would be far easier to reach common ground with an approach that takes account of the place of the pregnant woman when acts of violence against her lead to fetal injury or death. Indeed, the approach taken by the current statute may lead to some unintended results, and is not consistent with the treatment of the fetus in the American legal tradition.

    To begin with, the proposed law refers to ''a child, who is in utero at the time the conduct takes place.'' Because it uses these words, the proposed law would likely result more in useless litigation about the statute's meaning than in the prevention and punishment of conduct that results in fetal injury or death. It's use of the phrase ''child, who is in utero'' may give a defendant an argument that the statute is ambiguous, and that he lacked the notice of what acts are criminal that is required by the Due Process Clause of the Fifth Amendment.(see footnote 6) Does it mean the statute applies only to the injury or death of a ''child,'' that is one who is subsequently born, but who was injured in utero? Does it refer to a fetus past the point of viability? Does it refer to a single-cell fertilized ova that has not yet implanted in the uterine wall? The statute does not tell us.
 Page 112       PREV PAGE       TOP OF DOC

    Even if the law is not held inapplicable because of unconstitutional vagueness, the Supreme Court has articulated a doctrine known as the doctrine of ''lenity.''(see footnote 7) Rooted in part in separation of powers concerns, this doctrine means that an ambiguous federal criminal statute must be construed in the way most favorable to the defendant, lest an individual be criminally punished for conduct that Congress did not intend to criminalize.(see footnote 8) At best, the phrase ''child, who is in utero'' is ambiguous here, and a defendant is likely to be able to avoid prosecution for whatever conduct it is that the drafters of this law intend to criminalize.

    In addition, this statute operates in a very unusual manner. It does not just increase the penalty for unlawful violence against a pregnant woman that results in the death of or injury to a fetus, nor does it criminalize injuring or killing a fetus if one has the requisite mental state and is aware of the woman's pregnancy. Rather it includes fetuses within the universe of persons who may be protected from injury or death resulting from violations of other federal criminal laws.

    Many state laws address fetal injury and death only in certain circumstances, and, reflecting the unique nature of the developing fetus, many provide some penalty that is different from the penalty that would have applied had the defendant killed or injured a person who was already born. They tend also to take account of the fetus's stage of development. State feticide laws often do not treat even the intentional killing of a fetus through violence perpetrated upon the pregnant woman as murder equivalent to the murder of a person who has been born. Some, like North Carolina, enhance the penalty for the underlying criminal conduct. Others treat even intentional feticide only as manslaughter. Thus, in Mississippi, for example, the law provides that
 Page 113       PREV PAGE       TOP OF DOC

The wilful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be manslaughter.

Miss. Code. Ann. §97–3–37.

    The proposed law by contrast says that whenever causing death or injury to a person in violation of a listed law would subject an individual to a particular punishment, he shall be subject to the same punishment if he causes death or injury to a fetus. This is true regardless of the stage of fetal development. Whatever its rhetorical force, the proposed law would lead to some unusual, and probably unintended, results. To give just one example, under the Freedom of Access to Clinic Entrances Act (''FACE''), 18 U.S.C. §248, one of the statutes listed in H.R. 2436, if an individual who is engaged in obstructing access to an abortion clinic knocks a pregnant woman to the ground during a demonstration, he is liable to imprisonment for up to one year. If he causes her ''bodily injury'' when he knocks her down, he would be subject under FACE to a ten-year term of imprisonment. Under the proposed law, however, if she miscarried as a result of being knocked down, he would be subject to life imprisonment, the same as if his action had caused the death of the woman herself.

    In addition to being far more practical, it would be far easier to reach common ground on this issue with adoption of a statute similar to those state statutes providing for enhanced punishments that I have described. For in addition to the practical consequences, the use of a statutory framework that seeks to achieve its result through treating all fetuses at all stages of development as persons distinct from the women who carry them unnecessarily places federal statutory law on the path toward turning the pregnant woman into the adversary rather than the protector of the fetus she carries. For although this law contains exceptions for abortion, for medical treatment of the woman or the fetus, and for the woman's own conduct—exceptions that are both wise and constitutionally required—if the fetus were truly a ''person,'' there would be no principled reason to include such exceptions. Yet of course a law that did not contain them would be shocking to most Americans and both obviously and facially unconstitutional.
 Page 114       PREV PAGE       TOP OF DOC

    Finally, then, in failing to take account of the woman, the proposed statute also sets federal law apart from the American legal and constitutional tradition with respect to the treatment of the fetus. As the Supreme Court has described, ''the unborn have never been recognized in the law as persons in the whole sense.''(see footnote 9) At common law, the destruction of a fetus in utero was not recognized as homicide unless the victim was born alive.(see footnote 10) And, of course, the Supreme Court has held that fetuses are not persons within the meaning of the Fourteenth Amendment.(see footnote 11) This is a position with which even as staunch an opponent of Roe v. Wade as Justice Antonin Scalia agrees.(see footnote 12)

    In addition, therefore, to the practical and political considerations that counsel in favor of an alternative approach, the proposed law would also unnecessarily set federal statutory law on a conceptual collision course with the Supreme Court's abortion decisions. Whatever one may think of those decisions, an unnecessary conflict about them would not contribute to the important work of healing where possible the country's division over abortion.

    Mr. CANADY. Thank you, Professor Rubin.

    We will now go to our final witness of the day, Professor Bradley.

STATEMENT OF GERALD V. BRADLEY, PROFESSOR, NOTRE DAME LAW SCHOOL
 Page 115       PREV PAGE       TOP OF DOC

    Mr. BRADLEY. Thank you, Mr. Chairman. I am pleased to offer to the committee today my opinion that the Unborn Victims of Violence Act of 1999 is constitutional and to briefly explain the reasons for my opinion. I should like to add, perhaps in the interest of full disclosure, that I, too, am a former prosecutor, a species which seems to be in ample supply hereabouts today, and I served, as did Mr. Weich, in what seemed to me to be the belly of the beast, the Manhattan Criminal Courts as an Assistant Prosecutor to the Honorable Robert Morgenthau, the District Attorney of New York County.

    The first question about this act, as any act of Congress, is whether there is an enumerated power in the Constitution which authorizes the protections accorded the unborn by the act. Now, with the recent revival in the Supreme Court of judicially enforceable federalism limits on Congress' commerce power and with the Court's narrow reading of Congress' power under section 5 of the 14 amendment in Boerne v. Flores, it would seem that there might be some real question about the constitutionality, the enumerated basis for the act.

    But not so; the act does not engage these recent developments. It is subject to no doubt of its constitutionality because of these recent cases. That is because the act, as Professor Arkes said, does not extend Congress' reach. No conduct which is presently free of Federal regulation will in the future be regulated if the act becomes a law. No conduct which was lawful is to be unlawful.

    For this reason, there is an important sense in which the act is effectively, functionally a punishment enhancement statute. Like RICO, for instance, it picks up what might be called predicate offenses, that long list of provisions of 18 USC that Representative Nadler referred to earlier, and adds to them an additional, distinct punishment. The act, therefore, relies upon predicate acts, one might say, for its constitutional hook. If there is any question, therefore, about the constitutionality of the act, one would have to argue that the predicate acts themselves are unconstitutional.
 Page 116       PREV PAGE       TOP OF DOC

    Now, the act, of course, is not literally a punishment enhancement provision. It sets up a separately indictable offense, and some of the witnesses who have spoken before me have suggested that in light of this it is probably more appropriate to follow those legal authorities which would simply take this phenomenon under consideration and actually make it into a punishment enhancement provision, to add to punishment otherwise due for breaking the specified provisions, some additional factor due to the additional harm.

    I think this route is a mistaken one for this simple reason. As Representative Conyers so correctly pointed out, this act aims to disaggregate the interests of the woman and the unborn. This is surely the point of view of the drafters of this bill. But from this point of view, there is a separate offense, a separate victim, not just an additional harm to the same victim. As a matter of general criminal law practice, it seems to me, where there is a separate victim who is harmed, there ought to be either a separate offense, or at least an additional indicted count of the same offense.

    Another witness has referred to the problems of proof in connection with prosecuting cases under the act. As I read the statute, however, an offender is strictly liable for the harm caused to an unborn child. If this reading is correct, no problem of proving either intent or knowledge should arise.

    Another witness referred to the possibility, or projected the possibility in the future, of great confusion, perhaps protracted debate, among jurors considering charges under this statute. I don't think that is realistically in the offing. I would rather presume that jurors will follow the instructions of the court, and if the statute is clear, so will be the instructions, and so will be the jurors' duty. It seems to me also that we need not rely upon speculation in this area at all. Thirty-or-so States have statutes like this one, or have adopted provisions like this as extensions or interpretations of their ordinary homicide statutes. It seems to me the experience of those 30-or-so States is the place to look for solid information to gather an expectation about how jurors will contend with this provision.
 Page 117       PREV PAGE       TOP OF DOC

    Well, how about the constitutionality of this act in light of Roe v. Wade in the cases following it? Nothing in the act affects, much less constitutionally restricts an expectant mother's right to terminate her pregnancy. The current expression of the relevant constitutional standard is from Planned Parenthood v. Casey: it is the undue burden test.

    I can scarcely imagine language more adequate to the preservation of the right to abortion than the language found in section C of this act. The expectant mother and all those cooperating with her in securing an abortion are completely immunized against all potential liability under this act.

    Now, there is, of course, a more subtle line of argument which raises an objection, a constitutional objection to this act, and it is an argument that relies upon Roe, and here is what I think that argument is. Is there no difference really between what the act says and a flat Congressional declaration that the unborn are persons, or at least that the unborn are human beings with a right to life? Is not that declaration simply inconsistent with Roe and the cases following it?

    Now, the answer to this challenge would very likely have to be yes if the Supreme Court in Roe, or in another case, held that the unborn are not persons, or at least human beings with a right to life. The Court has never so held. The Roe Court said expressly that it need not resolve the difficult question of when life begins. The Court said in Roe that the judiciary is not in a position to speculate as to the answer to that question. All that the Court held in Roe was that Texas could not override the rights of the pregnant woman by adopting an answer to the question of when life begins. The Roe Court did say that the unborn are not persons in a whole sense, but read in context that clearly means simply that Texas could not adopt a view of the personhood of the unborn, which (again) conflicted with the liberty rights of the pregnant woman.
 Page 118       PREV PAGE       TOP OF DOC

    It is consistent with Roe to say the following: as to the rest of the world, that is to all persons, all individuals other than the pregnant woman and those cooperating with her, a legislature is entitled to recognize the unborn as a person with a right to life. Again, as to the rest of the world, apart from the woman and those cooperating with her in securing an abortion, it is consistent with Roe to take the view of this act.

    This understanding of Roe was explicitly confirmed by the Supreme Court in 1989 in the Webster case. There the State of Missouri said in legislation, ''The life of each human being begins at conception.'' The legislation also said, ''Unborn children have protectable interests in life, health and well being.'' The circuit court, the 8th circuit court seems to have adopted the view of Roe which I held up a few minutes ago as a possible objection. The 8th circuit overturned this part of the Missouri law saying that it had impermissibly adopted a theory of when life begins. But the Supreme Court reversed this act of the 8th circuit. The Supreme Court said, citing its own prior decisions, including Roe, that the relevant passages in Roe meant, and I quote the Supreme Court of the United States, ''only that a State could not justify an abortion regulation otherwise invalid under Roe on the ground that human life begins at conception.'' My translation; so long as the woman's right to an abortion is preserved, the States are free to adopt the view that life begins at conception.

    Now, in Casey v. Planned Parenthood, 1992, the three writers of the joint opinion, Justices Kennedy, O'Connor and Souter, called upon all parties to the abortion debate to accept a common mandate rooted in the Constitution. The drafters of this bill have heeded that call. But the members of the Casey Court and the Roe Court did not call for an end to all legislation on abortion, did not even ask that legislatures stop acting where they were free to act. The Roe and Casey Courts did not ask all parties to accept the philosophical presuppositions about when life begins of those who favor abortion rights, or who see abortion as morally unobjectionable. Roe and Casey do not cast such a giant shadow over this important part of our common affairs.
 Page 119       PREV PAGE       TOP OF DOC

    [The statewment of Mr. Bradley follows:]

PREPARED STATEMENT OF GERALD V. BRADLEY, PROFESSOR, NOTRE DAME LAW SCHOOL

    I am pleased to address the question of the constitutionality of the Unborn Victims of Violence Act of 1999. [Hereafter, ''Act''.]

    The first question about the constitutionality of the Act is not whether it violates a right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade. That would be the first, and only interesting, question where a government of general jurisdiction, like our state governments, passed a law like this Act. About half the states have effectively done so, either by separate enactment or by subsuming harm to the unborn within homicide protections of murder or manslaughter. Courts throughout the country have found these laws to be compatible with the right articulated in Roe.

    Our national government possesses extensive but not indefinite powers, large but not unlimited jurisdiction. Ours is a national government of specific and enumerated powers. It possesses no general power to protect persons, including unborn persons, against private violence. The closest the national government comes to such an authority is the power conferred by the Fourteenth Amendment's guarantee to all ''persons'' of the ''equal protection'' of state laws, including state laws against assault and homicide. Upon an appropriate finding of fact by Congress that some identifiable class of persons—say, a racial or ethnic minority, or a particularly vulnerable and politically powerless group, like the infirm or unborn—is, on a widespread basis, unequally exposed to private violence by exclusion from, or lax enforcement of, state homicide laws, direct federal protection against such discrimination would be constitutional.
 Page 120       PREV PAGE       TOP OF DOC

    The first question is whether there is an enumerated power which authorizes the protections accorded the unborn by the Act. With the recent revival of judicially enforceable limits upon Congress's commerce power—see U.S. v. Lopez—and the narrow reading of Congress's ''enforcement'' power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, one might expect some debate about the enumerated bases for the Act. Not so. The Act does not engage recent developments, and is subjected to no doubt of its constitutionality because of them. For the Act does not extend Congress's reach; no conduct whatsoever which is presently free of federal regulation will be regulated if the Act becomes law. No conduct which was lawful is to be unlawful; no conduct which was legal is to be illegal. The Act is essentially a punishment enhancement provision.

    The Act is perhaps best compared in this regard to the Racketeer Influenced and Corrupt Organizations Act—RICO. RICO, too, relies upon (what it expressly calls) ''predicate'' offenses—and then lists them, as does the Act—in order to set up what, like the Act, is essentially an enhanced punishment statute. The Act relies upon predicate acts for its constitutional hook, one might say. If there is any question about the constitutionality of its reach, then, it is a question of the constitutionality of the ''predicate'' offense, and not about this Act.

    (There is one question to be taken up concerning the constitutionality of the reach of this Act, where federal authority is predicated entirely upon the identity of an individual attacked. I postpone it until later, for reasons that I believe will be more clear then.)
 Page 121       PREV PAGE       TOP OF DOC

    The Act relies upon established criminal law principles of transferred intent to affix the enhanced penalty to an already criminal act. The basic idea is simple: a bad actor with the requisite malice to, in the language of the bill, ''violate [] any of the provisions of law listed in subsection (b)'', may be charged with an additional violent offense, without evidence of malice towards or even knowledge of, the baby in utero where the malefactor in fact causes harm to it. This established principle is perhaps classically illustrated in felony murder statutes, where the malice manifested in the commission of a felony is transferred to what may be even an accidentally caused death. So, for example, an arsonist who honestly believes the building he torches is unoccupied is nonetheless indictable for felony murder if, by chance, someone is inside, and is killed.

    Nothing in the Act affects, much less unconstitutionally restricts, the mother's right to terminate her pregnancy. (The current expression of the constitutional standard is the ''undue burden'' test of Casey v. Planned Parenthood.) I can scarcely imagine language more adequate to the preservation of the right to abortion than that found in section (c) of the Act. Not only is the mother and all those cooperating with her in securing an abortion completely immunized against all potential liability. No woman may be prosecuted under this Act ''with respect to her unborn child.'' No woman engaged in predicate criminal conduct may be prosecuted for harm to her child, even where she did not intend to abort. So, a woman engaged in a hijacking or assault upon a federal juror or in animal terrorism or in any covered activity and who, as a result (of flight or some mishap) causes harm or death to her own fetus, is beyond prosecution under this Act, even though she may be liable for hijacking or assault upon a juror or animal terrorism. The Act simply does not inhibit the woman's freedom to choose whether to bear a child or not.
 Page 122       PREV PAGE       TOP OF DOC

    In fact, one of the state interest which might be said to be promoted by the Act is precisely the liberty articulated in Roe. A woman's freedom to carry a baby to term is inhibited or denied by conduct which results in harm or death to her unborn child.

    Someone might object that nevertheless the Act, in its protection of what the Act calls ''unborn children'' to practically the same extent as other persons is somehow inconsistent with Roe, or its progeny. Is there no difference, the objection might hold, between this Act and a flat Congressional declaration that the unborn are persons? And is not that declaration inconsistent with Roe, or it progeny.

    The answer to this challenge would very likely have to be yes if the Supreme Court in Roe or some other case held that the unborn are not persons. But the Court has never so held. The Roe court said that it did not ''need [to] resolve the difficult question of when life begins'' (410 U.S. at 159). The Court there said the ''the judiciary . . . is not is a position to speculate as to the answer.'' (Id.) In no general or broad way, moreover, did the Court hold that the states or the Congress operated under a similar disability. All that the Court held in this regard was that Texas (and thus any other governmental body, including for argument sake, the Congress) ''could not override the rights of the pregnant woman'' by adopting an answer to the question of when life begins, that she could not be deprived of all freedom of choice by the consequences of legislation regarding the beginning of life. (See 410 U.S. at 162). But this Act does not affect, much less ''override,'' the rights of any pregnant woman. The Roe court opined that the unborn were not to be considered persons in the ''whole'' sense, an opinion consistent with treating the unborn as persons for some purposes, like inheritance and tort injury, purposes which the Roe court itself recognized as legitimate.
 Page 123       PREV PAGE       TOP OF DOC

    This understanding of Roe was explicitly confirmed by the Supreme Court in the 1989 Webster decision. There the state of Missouri had legislated that the ''life of each human being begins at conception'', and the ''unborn children have protectable interests in life, health, and wellbeing.'' The 8th Circuit Court of Appeals seems to have adopted the view of Roe stated as an ''objection'' here, that the state had, in light of Roe, ''impermissibl[y]'' adopted a ''theory of when life begins.'' But the Supreme Court reversed this part of the 8th Circuit holding, stating that its own prior decisions, including Roe, meant ''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''. (emphasis added). Since this Act is no way is questionable under roe apart from the viewpoint issue, the matter is settled: congress is as free as was the state of Missouri to conclude and to enforce outside the parameters of Roe its view that life begins at conception. If there remains something anomalous about the situation, it is an anomaly engendered by Roe, and not by this Act.

    Now, the postponed question. What if federal jurisdiction is predicated entirely upon the identity of a particular individual, say the President or a cabinet officer or foreign dignitary? Is there a satisfactory basis for enhanced punishment of a violator of, for example, 18 U.S.C. 1751, one who attacks the President and, who as a result of that felonious conduct, injures or kills her unborn child?

    The answer must start with the recognition that, strictly speaking, it is only the discharge of federal functions, and not persons just as such, which grounds federal criminal jurisdiction even in cases like our example. Protection of federal officers and jurors and foreign visitors of a certain rank is justified by virtue of the national interest in protecting the functions which those persons perform, or (to put it differently) the offices whose duties they discharge. These functions are impeded by assaults upon the person of the various officers, as well as by threats to them and even to their families. So, it would in my judgment be constitutional to extend federal protection to the entire families of at least certain federal officers, to insure that nothing distracted them or caused them to be derelict in their duty. It seems a reasonable judgment for Congress to make that there is a distinct, punishable harm to the discharge of federally imposed duties where the unborn child of a protectable person is harmed or destroyed. This would seem to exactly the reasoning behind 18 U.S.C. 115, which protects members of the immediate family of a United States official or law enforcement officer against assault, murder and kidnapping.
 Page 124       PREV PAGE       TOP OF DOC

    Mr. CANADY. Thank you, Professor Bradley. I again want to thank all of the members of the panel for your testimony, it has been very helpful to the subcommittee, very instructive.

    I now recognize the gentleman from South Carolina, Mr. Graham, for 5 minutes.

    Mr. GRAHAM. Thank you, Mr. Chairman. I would like to thank the panel. It has very enlightening and instructive. The purpose of legislation, to me, is to take the real world and the law and try to make the real world a better place. I am going to talk a little bit about the real world as I believe it to be and the way I would like it to be.

    Sentence enhancement versus separate offenses. Here is the real world I think a prosecutor lives with. Give me as many tools as possible to get bad guys and I am a better prosecutor and the world is better. Sentence enhancement takes the underlying offense and throws a little something on top of it. Give me the Robbins case in the Air Force, give me a statute where I can get to the bad guy and say you can go to jail for life because you killed a kid in addition to beating this woman half to death. Because the worst I could do to him, to the mother, is charge him with maiming and assault under Article 128, the other article for maiming.

    But when he killed the kid through the assault of the mother, if I have got a murder charge over his head, in the real world, I have got a better chance to get the bad guy, and I think that is why he pled guilty. I would like to take the Ohio statute and make it part of Federal law, and make it part of the UCMJ, because in the real world, Mr. Lenz, what happened to you, I would like the person who parked the truck in front of the building and tried to kill everything and everybody, to be punished to the full extent of the law to recognize what really happened in the real world that you live in.
 Page 125       PREV PAGE       TOP OF DOC

    Constitutionally, I believe this is extremely sound, because the abortion debate has limits, constitutionally. I have excepted from this statute the abortion issue. I have excepted the cases in State court where you can prosecute the mother who becomes a drug addict and hurts the child. I have tried to focus on the bad guys and the bad women who assault women carrying children and, as a result of that assault, there is damage, because I think the real world is a better place, and I have learned a lot here.

    Ms. Stuart, I disagree with you, I think I could prosecute Airman Robbins and win before a jury without much of a problem. I think if I catch the guy that blew up the building, that I can convict him under this statute and it wouldn't take very long, because he meant to kill everything and everybody.

    Thank you very much for coming. I hope we can come together as a Nation on this issue and make the real world a little better place. Thank you, all.

    I yield back the balance of my time.

    Mr. CANADY. Thank you.

    The gentleman from North Carolina, Mr. Watt, is recognized.

    Mr. WATT. Thank you, Mr. Chairman. I want to pick up where I was in my opening statement, not the part fussing about the process, but the part where I implied that we should take this proposed legislation seriously and give it the kind of respect that Mr. Graham has just made a compelling case for. I think the person who gives me the opportunity to do that on this panel more than anybody else is the comments of Mr. Rubin, Professor Rubin, who says that there are existing statutes out there, including one in North Carolina, that goes somewhere up the road in this direction, but that this particular statute has some serious concerns about it. So I am going to try to see whether we can address those concerns and see if everybody is approaching this issue with the same philosophy that Mr. Graham says he is approaching it.
 Page 126       PREV PAGE       TOP OF DOC

    I have already approached Mr. Graham and said to him privately, if this is a good idea, it should apply whether the woman is pregnant 1 day, 10 days or 8 months. It should not be a question of viability because then you are into the abortion debate. That is what Professor Arkes and Professor Bradley I think were saying.

    But the wording of this statute as it is proposed now gets you right into that debate by starting in the title of the bill using ''unborn children'' rather than fetuses. Throughout the bill, on page 2, line 10; page 2, line 16; page 3, line 19, 20, 21; page 4, line 12, 16 and 17; page 5, lines 6, 7 and 8, you are in the middle of the debate about what a child is as opposed to what a fetus is. If this is a good idea, it applies outside the context of whether this is a child viable, legal long-term tied up in court forever versus what is a fetus.

    So I guess the first question I want to ask, is there anybody on this panel who thinks that the word ''child'' ought to be—there is something sacrosanct about the word ''child'' being in this bill, as opposed to the word ''fetus'' being in the bill?

    Mr. WEICH. Well, I am prepared to say, Congressman, that I think that the fact the word ''child'' was chosen reflects——

    Mr. WATT. I understand that. I understand that. I guess I would go to Professor Arkes and Professor Bradley, in particular. Is there something in this bill, is there something critical to this bill that the word ''child,'' as opposed to ''fetus'' is important?

 Page 127       PREV PAGE       TOP OF DOC
    Mr. ARKES. It may not make much of a difference, Congressman, unless there is——

    Mr. WATT. Well, it makes a lot of difference to me.

    Mr. ARKES. Well, if I can finish the sentence.

    Mr. WATT. All right.

    Mr. ARKES. Unless it strains the coherence of what you are doing, which is why you protect——

    Mr. WATT. Unless it is what?

    Mr. ARKES. It strains the coherence of what you are doing. Are you assuming that it is an animal protected by the Endangered Species Act, or are you not protecting it precisely because you are aware that it is a human being? If it is a human being, it may not really matter whether you call a human fetus or a child. That rather begs the question. So I think it is perhaps important for you to understand why are you protecting it.

    Mr. WATT. Well, Mr. Arkes, if you are not going to be serious with me, I am not talking about animals.

    Mr. ARKES. I am quite serious.

 Page 128       PREV PAGE       TOP OF DOC
    Mr. WATT. I am not talking about dogs, I am not talking about cats. I am talking about human fetuses.

    Mr. ARKES. That is fine.

    Mr. WATT. The question I asked is, is there anything that is magic about the word ''child'' here versus the word ''fetus''? The answer to that can be either yes or no. Then you may elaborate, if you would like, but please answer the question.

    Mr. ARKES. I did answer the question.

    Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.

    Mr. ARKES. If you wish to say ''human fetus,'' I think that is fine. The point is I think somewhere along the way, you are putting in the predicate that you are addressing some being who claims the protection of the law.

    Mr. WATT. Well, you are saying if I don't use the word ''human,'' there is going to be some question in the courtroom about whether I am referring to a dog or a cat or somebody?

    Mr. ARKES. No. Well, you offered the term, I didn't. You offered it and I said I think that would be fine.

 Page 129       PREV PAGE       TOP OF DOC
    Mr. WATT. Mr. Bradley, maybe I can get a serious response out of you.

    Mr. BRADLEY. Well, here goes. I think either way it should be defined somewhere in the statute. Whatever you call it, whether you call it a fetus, child, living human individual, it should be made explicit whether you are talking about it from the moment of conception, the moment of implantation or viability. I agree with you that it ought to be from the moment of conception forward, because I think it is a good idea. But I think that needs to be made clear no matter what you go on to call it in the body of the act.

    Mr. WATT. Mr. Rubin, let me hear from you on this. I am not excluding you all on this end, I mean I think I know where all stand. I am just trying to get a straight answer to what I thought was a straight question.

    Mr. RUBIN. Of course I agree with you that the use of the word ''fetus'' rather than ''child'' is not only equally good, but better, for some of the reasons that I described in my testimony. I should say that I disagree, I am not completely sure about what you meant 1 day after conception, 10 days, viability, whatever. It may be that there is an injury to a woman from the loss of a fetus she carries starting at the moment of conception. I think that, like the many State laws that take account of gestational age, any law that the Congress passes on this subject should take account of the increased development and attachment of the pregnant woman and the expectant father to the fetus and recognize that there is some difference between a 9-month gestated, about to be born fetus and if the word ''fetus'' even applies, some people use the word ''embryo'' during a preliminary period of pregnancy, but a fetus, for example, of which the woman might not even be aware.
 Page 130       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentleman's time has expired. Would you like to speak?

    Mr. WATT. Let me just have one additional minute, if you don't mind.

    Mr. CANADY. Without objection, the gentleman will have one additional minute.

    Mr. WATT. I guess my next question and comment to Mr. Rubin, Professor Rubin, I take it if we are going to treat this seriously, what you are saying is that some of these things really need to be fleshed out and, you know, these are serious issues, a lot more serious than having a hearing one day, marking up a complex bill the next day. It is a lot more serious than at first blush would meet the eye.

    Mr. RUBIN. I don't know if I want to get involved in the debate about the timing of the markup. [Laughter.]

    Mr. WATT. Get involved in the debate about the seriousness of it. You can stay out of the timing issue.

    Mr. RUBIN. I think it is obviously a difficult question. I don't believe that the injury that is done through destruction of a fetus through causing a miscarriage in a wanted pregnancy magically arises at the moment of viability, so I am not saying that for, you know, for rigid Roe-related reasons, one must not protect in some way even before that point. But I do think that there is a common sense recognition that the fetus is unique and it is unique at each stage, and it develops, and attachments to it develop, and so on.
 Page 131       PREV PAGE       TOP OF DOC

    Many State laws deal with this is a way. I think the North Carolina one I read has the word ''quick''—no, no, the North Carolina law doesn't have that limitation, the Mississippi law talks about it.

    Mr. WATT. The North Carolina law says, ''a person who in the commission of a felony causes injury to a woman knowing the woman to be pregnant.''

    Mr. RUBIN. Yes. Another example, and that is the knowledge part. Another example, in Mississippi, ''the willful killing of an unborn quick child . . . which would be murder if it resulted in the death of the mother, shall be manslaughter.'' That is how Mississippi does it. I think there are problems with that model. But the idea of acknowledging something that I think common sense is aware of, that there are distinctions between stages of fetal development, is an important thing to include and at least think about. I guess your question is, should you think about it? Yes.

    Mr. WATT. I just want to say in yield back that I believe actually the North Carolina approach, I am sure they didn't do it for this reason, knowing my good friends in North Carolina. But the North Carolina approach would certainly address the concern that Ms. Fulcher expressed about putting the emphasis on the mother and the damage to the mother, as opposed to the fetus, child, human fetus, whatever term, embryo, whatever term you applied.

    Mr. CANADY. The gentleman's time has now once again expired.

    Mr. ROBERTS. Mr. Chairman, could I just, if I may, just add something?
 Page 132       PREV PAGE       TOP OF DOC

    Mr. CANADY. Okay. I'm sorry. Would you like some more time for Colonel Roberts?

    Without objection, the gentleman will have one additional minute.

    Mr. ROBERTS. It won't take me that long, I promise.

    Mr. WATT. I promise not to ask another question.

    Mr. ROBERTS. The question about using the term ''child'' or ''fetus,'' I just want to make it clear for the record that, coming today, I am providing a factual statement about a particular case, and that the bill has just recently come to the Air Force and DOD, and that DOD and the Air Force does not have a position on the bill itself.

    Mr. WATT. I heard that loud and clear in your statement. I heard that you were here under some duress.

    Mr. ROBERTS. Thank you.

    Mr. CANADY. So the gentleman's time has now expired. I will now recognize myself for 5 minutes and yield such time as he may consume to the gentleman from South Carolina.

    Mr. GRAHAM. Thank you. Along the line of Mr. Watt, I am very serious about this. This is a very serious matter to me and I want to get it as right as we can and be as correct as we can.
 Page 133       PREV PAGE       TOP OF DOC

    I share your belief that it doesn't matter if it is 1 day or 9 months. That is what I am trying to do, Mel, I am trying to make it a separate offense, whether you agree with that or not, that if you unlawfully terminate a pregnancy through an act of violence against the mother, that you can be tried separately for that offense. I don't think sentence enhancement is the debt I want society to have to be repaid by the criminal actor.

    However, here is the way we define ''unborn child,'' it means a child in utero. The Ohio statute has a lot of appeal to me because I think it covers the debate you guys were trying to raise, and here is the way they define it in the Ohio statute. Unlawful termination of another's pregnancy, the term ''unlawful termination of another's pregnancy'' was defined as ''causing the death of an unborn member of the species homo sapiens,'' make sure it is not a cat or a dog, ''who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins,'' this is where we agree, ''with fertilization and that continues unless and until live birth occurs,'' which covers the period of time from fertilization all the way up to birth and that is where we seem to have a common interest, that is what I am trying to do. In the sense that the word ''child'' obscures that and creates some vagueness, I think the Ohio statue probably better defines, and I will sit down and talk with you about that.

    Mr. WATT. If the gentleman would yield just for a second, I will just remind him that that is not what this proposal says.

    Mr. GRAHAM. Yes, I understand. I understand. Maybe we can talk about it.

 Page 134       PREV PAGE       TOP OF DOC
    Mr. WEICH. May I just observe that section 29.0301 of the Ohio Revised Code says ''for purposes of this offense, a person includes an individual who is not yet born, but is viable.'' Viability is built into the Ohio statute, and I think, with all due respect to Congressman Watt, that the concept of viability actually is very important here constitutionally and symbolically.

    Roe v. Wade is built on the premise that there is a legal difference between the viable fetus and the unviable fetus, and to say that a 10 day old fetus, or indeed an embryo, is to be treated as an independent person with the full protection of Federal law is an extraordinary departure from that constitutional doctrine, and it is exactly why Professor Arkes wants this bill to pass.

    Mr. CANADY. Let me reclaim my time.

    Ms. Stuart, do you agree with that perspective? Do you believe that it is constitutionally suspect to provide any protection before viability in a penalty enhancement or any other way?

    Ms. STUART. Congressman, I am not going to give any constitutional opinions here. My concern is the proof problem and that is, remember that we are talking about prosecuting somebody and proving that they knew that the person was pregnant. In listening to your conversation, I was envisioning a prosecutor getting back autopsy reports showing that there was a fetus in a person who was murdered or something like that, and all of a sudden, an additional criminal charge is being placed as a result of the post-mortem discovery of a fetus of which the individual who is being charged had no reason to know.
 Page 135       PREV PAGE       TOP OF DOC

    Mr. CANADY. Thank you. Thank you, Ms. Stuart. That is something you have gone over and I appreciate your perspective on that.

    I have got one question I want to ask of Mr. Lenz, and I have thanked all the witnesses. I want to particularly thank Mr. Lenz for being here today. I know this is not an easy subject to discuss.

    Mr. WATT. I join with you on that.

    Mr. CANADY. We are grateful for your taking the time to be with us and relate your family's tragedy.

    But it is my understanding that in the list of victims in the indictment of Timothy McVeigh and Terry Nichols for the bombing of the Federal building there, your wife was listed but not your unborn son. Do you know if the prosecutors ever had discussions among themselves or considerations about whether or not your unborn son was to be included on the list?

    Mr. LENZ. No, I don't have firsthand knowledge of whether or not that ever took place. But I guess for the purposes of the actual prosecution of Mr. Nichols and Mr. McVeigh, my case is maybe a little bit irrelevant because they were never prosecuted for the murder of my wife. They were prosecuted for the murder of the eight Federal law enforcement agents that were killed in the Murrah bombing, eight or nine. Okay.

    I guess since you have been gracious enough to give me this time, you know my concern with this, and why I think this is a good idea is real simple, for people such as myself who have invested the time to make sure that their family situation is right, gone through the challenges, become pregnant, I am not a constitutional expert, but to me, if my wife goes to the store, and we have been working for 3 years to have a child, and maybe a store is a bad idea, maybe she needs to be in a post office, but somebody, through a violent criminal act, injures my child or my wife, I think that that needs to be punished.
 Page 136       PREV PAGE       TOP OF DOC

    Mr. CANADY. Thank you. I will yield myself two additional minutes and yield those to the gentleman from South Carolina.

    Mr. GRAHAM. This has been a good hearing. I want to ask you very directly, Mr.—is it Weich?

    Mr. WEICH. Yes.

    Mr. GRAHAM. Is it your opinion that Roe v. Wade says that as to the rest of the world, no legislative activity can occur unless the fetus is viable?

    Mr. WATT. No, I don't believe that is true, Congressman.

    Mr. GRAHAM. Okay. Now, this, Mr. Weich, deals as to the rest of the world. I have exempted any prosecutions or activity regarding an abortion, any activity regarding medical professionals. As to criminals, as to the Airman Robbins of the world, do you agree with me that we could pass a statute that would pass constitutional muster under Roe v. Wade that would hold him separately liable for terminating that pregnancy through an act of violence?

    Mr. WEICH. Yes. I believe there is a statute that is constitutional that could be passed here. But I think this bill is too broad and, moreover, the bill is unnecessary. For example, Lt. Colonel Roberts' description of his case shows that the Assimilative Crimes Act provided for prosecution of that case. Since it is unnecessary, Congressman, I can only conclude that there is another motive here and that is to confer personhood on the unviable fetus.
 Page 137       PREV PAGE       TOP OF DOC

    Mr. GRAHAM. Let's go back and explore the unnecessary part. Is it your testimony here that Federal law already allows you to prosecute separate criminal offenses for an assault on the mother where the pregnancy is terminated without any existing Federal statute?

    Mr. WEICH. Yes. United States v. Spencer, 839 F.2nd 1441.

    Mr. GRAHAM. Was that child born?

    Mr. WEICH. It is actually a very interesting case. The woman was hospitalized and treated successfully for her injuries, so it is exactly the case that we are looking at. The fetus was delivered and lived for 10 minutes before dying.

    Mr. GRAHAM. But isn't this true, that that statute, that case, Federal common law dealt with a pregnancy that was brought to term, lived for 10 minutes under the definition, and this is totally a different case where his child, or Mrs. Robbins' fetus never was born at all but was killed in utero, are you saying that case applies to this situation?

    Mr. WEICH. The Anglo-American legal traditions which were reflected in this 9th circuit Spencer decision make common sense distinctions between the situation you described——

    Mr. GRAHAM. Mr. Weich, I don't buy at all there is existing common law, Federal offenses pulling out of the air that you can prosecute somebody for terminating a pregnancy without the child being born. I don't buy that one bit.
 Page 138       PREV PAGE       TOP OF DOC

    Mr. WEICH. I would urge you to read the Spencer case.

    Mr. GRAHAM. Thank you.

    Mr. CANADY. Well, my time has expired and there are votes, a vote taking place.

    Mr. WATT. Mr. Chairman.

    Mr. CANADY. The gentleman from North Carolina.

    Mr. WATT. I ask unanimous consent to submit for the record a statement from the Center for Reproductive Law and Policy, a statement of Planned Parenthood Federation of America, a statement of American Civil Liberties Union and a statement of NARAL.

    Mr. CANADY. Without objection, the gentleman from South Carolina also asks unanimous consent to insert in the record a statement from Walter Baker.

    Without objection, that statement will be made part of the record.

    Mr. WATT. Mr. Chairman, could we leave the record open. I understand that Justice may be working on a statement and I would like the opportunity to submit it for the record.
 Page 139       PREV PAGE       TOP OF DOC

    Mr. CANADY. Without objection, if timely received.

    Again, I thank all the members of this panel for being here. The subcommittee stands adjourned.

    [Whereupon, at 4:54 p.m., the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record

PREPARED STATEMENT OF THE CENTER FOR REPRODUTIVE LAW AND POLICY (CRLP)

    The Center for Reproductive Law and Policy opposes the ''Unborn Victims of Violence Act of 1999.''

    By proposing to extend to unborn children the same legal protections of living persons, this Act constitutes a blatant effort to create fetal rights equal to those of women. The U.S. Supreme Court has explicitly rejected recognition of fetal rights, holding that constitutional protection for all citizens begins at birth.

    This legislation would recognize and endow a fetus with rights apart from a woman, ignoring the fact that any injury to a fetus is first an injury to a woman. Pregnant women can suffer great injury due to fetal loss, however instead of addressing this issue, the sponsors have proposed a statute that creates additional injury to women. Any effort to address fetal loss must focus on the woman.
 Page 140       PREV PAGE       TOP OF DOC

    Rather than asserting that injury to a fetus is a separate crime, the Act's sponsors would make genuine progress by addressing the real problem of violence against women. Yet none of the Act's sponsors have taken a role in addressing this public health issue or have even supported the Violence Against Women Act.

    If Congress is to ensure healthy, violence-free pregnancies, the top priority must be taking action to give greater protection to women. Women must live free from violence and have greater access to contraception and improved reproductive health services so that healthy, wanted pregnancies are a possibility for every woman in America.

     

PREPARED STATEMENT OF PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

PLANNED PARENTHOOD OPPOSES H.R. 2436

    Planned Parenthood Federation of America (''Planned Parenthood'') opposes H.R. 2436. On its face, this bill creates a penalty for violation of a number of criminal statutes if, in the course of commission of these crimes, an ''unborn child'' is injured or killed. The sentence this bill would be equal to that which would be imposed had the injury or death been to the woman rather than the ''unborn child.'' However, in practice, this bill:

 would create fertile ground for litigation as courts attempt to determine what constitutes an ''unborn child'';
 Page 141       PREV PAGE       TOP OF DOC

 shifts the focus off of violence against women, which continues to be a significant problem in America, not yet fully addressed by Congress;

 elevates a two-week embryo to the status of the woman carrying it;

 equates a two-week embryo with an eight-month fetus;

 equates harm to a woman who is visibly pregnant with harm to a woman whom herself may not be aware that she is pregnant.

    Planned Parenthood fully supports a woman's right to choose, including a woman's right to choose to carry a wanted pregnancy to term. The loss of a wanted pregnancy is a tragedy, but solutions should be real, not political. H.R. 2436 is not the right solution.

    Rather than create a separate offense that suffers from the infirmities listed above, a more workable and effective approach is an alternative that would create a sentencing enhancement, increasing the penalty for causing injury to or death of a pregnant woman that results in the interruption or termination of a wanted pregnancy. A sentencing enhancement would address the real harm that a woman and her family suffer at the loss of a wanted pregnancy. It would be highly inappropriate to minimize the primary harm to the woman herself.

The Legal Distinction Between An Offense and A Sentence Enhancement

    Under federal law, there are important differences between a substantive offense and a sentence enhancement, including:
 Page 142       PREV PAGE       TOP OF DOC

 The elements needed to enhance a sentence need to be proven only by a preponderance of the evidence, whereas the elements of a substantive offense must be proven beyond a reasonable doubt. This means that it would be easier to impose a higher penalty for harm to a pregnant woman by means of a sentence enhancement than with a substantive offense.

 Hearsay evidence may be used to prove the elements of a sentence enhancement, whereas it may not be used to prove the elements of a substantive offense. Again, this would make it easier to obtain an increased penalty.

 Sentencing issues need not be presented to a grand jury or charged in an indictment. Therefore, even if evidence of interruption or termination of an injured woman's pregnancy is not discovered until after the grand jury, it can be introduced at sentencing. Again, this would make it easier for prosecutors to obtain this increased sentence.

    Creating a separate offense, or even a civil cause of action, that punishes harm to a fetus as equal to harm to the adult woman is not the answer. Any such attempt will elevate the fetus—even an embryo only weeks old, perhaps even before its existence is known to the woman—to a status equal with that of the adult woman who suffers the primary harm, along with the additional harm of losing a wanted pregnancy.

Examples of the Bill's Flaws

    In fact, H.R. 2436 leads to some absurd results, granting victimhood to an embryo or fetus even when the pregnant woman is not harmed other than by the interruption or unwanted termination of her pregnancy. For example,
 Page 143       PREV PAGE       TOP OF DOC

 Property Crimes: A perpetrator bombs an airport. Although the pregnant woman is not physically harmed, she miscarries due to the stress of the event. The defendant may be charged under 18 U.S.C. §37(a)(2) for damage to the facilities of an airport, and may be charged under H.R. 2436 with the separate offense of causing the death of an ''unborn child,'' which would carry the same penalty as if the bombing had caused the death of the pregnant woman herself. This is so even if the woman was only two weeks pregnant, even if she intended to have an abortion, and even if the embryo carried a genetic abnormality that would have made it incapable of sustaining life outside the womb.

 Crimes by Law Enforcement: A state police officer wrongfully conducts a search of a motor vehicle, as well as the person of the driver, a pregnant woman. The driver was pulled over based on an illegal profile that was based on the race of the driver. The police officer causes no immediate physical harm to the driver, who is not visibly pregnant, and does not inform the police officer of her pregnancy. However, the search was invalid under the Fourth Amendment and constituted a deprivation of rights under color of law due to the racial profiling, in violation of 18 U.S.C. §242. In the course of the search of the driver's person, the officer jostled the driver. That, along with the stress of the incident, results in a miscarriage. Under H.R. 2436, the police officer may stand trial for causing the death of the ''unborn child,'' and may be punished to the same extent as if she caused the death of the driver.

    It is all too easy to construct these nonsensical hypotheticals. The ease with which these examples can be generated is itself an indication that the bill, as currently drafted, is fatally flawed.

 Page 144       PREV PAGE       TOP OF DOC
    A sentencing enhancement avoids all of these pitfalls by allowing a judge who can consider the particular facts of the case—including whether the defendant knew the woman was pregnant, as well as the gestational age of the embryo or fetus—to tailor the degree of enhancement based on those facts. This approach is more sensible, and would result in better public policy.

     

PREPARED STATEMENT OF THE NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE (NARAL)

CONGRESS SHOULD NOT DEPLOY FEDERAL PROSECUTORS ON BEHALF OF THE UNBORN

    For the first time, Congress is poised to hold hearings on a ''fetal protection'' bill, H.R. 2436. The bill, entitled the ''Unborn Victims of Violence Act of 1999,'' would amend the criminal code and the Uniform Code of Military Justice to create new federal crimes for bodily injury or death of an ''unborn child'' who is ''in utero'' at the time the act took place. ''Bodily injury'' is defined by reference in such a sweeping manner that it would encompass even such speculative harms as ''fetal pain.'' Although the bill properly includes exceptions for consensual or emergency abortions, medical treatment and the woman's conduct, it nonetheless forges new ground in attempting to recognize the fetus as a person with the same legal status as the woman or anyone else who has been born. H.R. 2436 opens the way to litigation over when life begins and minitrials on fetal pain embedded within criminal prosecutions. It marks a major departure from existing federal law and threatens to erode the foundations of the right to choose as recognized in Roe v. Wade, 410 U.S. 113 (1973).

 Page 145       PREV PAGE       TOP OF DOC
    We recognize that intentional criminal acts that cause a miscarriage or interrupt normal fetal development are indeed tragedies for the woman and her family that are worthy of redress. But the approach taken by H.R. 2436 is misguided and threatening to women's rights. Congress should instead enact the Violence Against Women Act II and support a range of programs that promote healthy childbearing. In the criminal arena, it should the enhance penalties imposed for a range of federal crimes when the crime results in a miscarriage or an interruption of normal fetal development.

Reject the Agenda of the Bill's Sponsors.

 The sponsors of this bill are not supporters of a woman's right to choose. Roe v. Wade rejected the suggestion that ''by adopting one theory of life, '' that is, granting personhood to the fetus, ''Texas may override the rights of the pregnant woman that are at stake.'' 410 U.S. at 162. It 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.'' Id. Yet Roe and the state cases liberalizing abortion rights that preceded it sparked a movement to grant the fetus legal recognition as full persons. H.R. 2436 is a manifestation of this effort to endow fetuses themselves with rights—such as recognition as being a victim of a crime—and to thus erode the foundational premise of Roe v. Wade.

 At a rhetorical level, the current version of H.R. 2436 reveals its intent to endow fetuses with rights by calling the fetus—and perhaps even an embryo—a ''child.'' it thus elevates the fetus to the status of a person, attacking the premise of Roe v. Wade. And this rhetoric renders the bill vague, perhaps in some instances unconstitutionally so. It is unclear as to when during pregnancy these new felonies may arise—at fertilization? implantation? when the woman realizes she's pregnant? when the defendant realizes the woman is pregnant? when the fetus is viable? At a legal minimum, this ambiguity should be clarified, and rhetorically, the embryo or fetus should be called its medical term, not an ''unborn child.''
 Page 146       PREV PAGE       TOP OF DOC

 Pro-choice groups are properly concerned with legislation like this that recognizes fetal rights because of our experience in the states with state action to protect fetuses and fetal protection statutes, most of which significantly infringe upon public health and women's rights. That is, H.R. 2436 takes a first step down a slope we already know to be slippery.

— For instance, South Carolina now prosecutes women whose babies are found to have drugs in their system. Whitner v. State, 492 S.E.2d 777 (S.C. 1997), cert. denied, 118 S. Ct. 1857 (1998). Such prosecutions deter women from seeking prenatal care, and, according to the General Accounting Office (GAO), such prosecutions will discourage women from seeking care during delivery. Women using drugs fear that medical professionals will discover their drug use and turn them over to the authorities for prosecution. Lack of prenatal care or assistance in delivery dramatically increases the dangers for both the mother and the baby.

— Other state statutes, creating civil causes of action that may be brought by persons other than the woman when she miscarries due to negligence or recklessness, could result in trimming pregnant women's liberty. That is, if an airline feared that it would be subject to a complaint for allowing a pregnant woman who miscarried to travel, airlines would be reluctant to sell tickets to pregnant women. Similarly, gyms might refuse to allow pregnant women to work out, fearing that any miscarriages would be attributable to them. Very quickly, pregnant women would become ''protected'' in a cage of restrictive private rules.

— The situation only worsens if the woman herself can be sued by the ''father'' of the fetus or other third parties. Then all her conduct during and perhaps even before pregnancy become subject to judicial scrutiny. Whether she works or stays in bed, exercises or doesn't exercise, takes medicine or toughs out an illness—all her conduct could be second-guessed in a court of law when such civil actions arising from harms or death of a fetus are recognized.
 Page 147       PREV PAGE       TOP OF DOC

— In other instances, judges and prison officials have elevated the fetus to a status on par with or above the woman—denying women abortions, incarcerating them to prevent possible harm to the fetus, and coercing sterilization or long-term contraception. See The NARAL Foundation, Unjust Punishment, Forced Contraception, and Poor Treatment of Women by the Courts and Prisons. (Copy attached).

Intentional Harms Against A Pregnant Woman that Result in Harm to or Death of a Fetus are a Proper Subject of Punishment, but the Focus must be on the Harm to the Woman.

 Society is of course properly concerned with assaults and murders, and this is reflected in our criminal code. These crimes are particularly offensive to Americans when they are committed upon a pregnant woman, causing her to miscarry or to deliver an injured baby. To address this problem, Congress should focus on the fact that the principal harm arising from such acts is to the woman who was pregnant. Instead, by creating a new criminal statute such as in H.R. 2436, it makes the government the protector of ''unborn children'' a role with troublesome ramifications for a woman's right to choose.

— Violence Against Women. To deter crimes against pregnant women and provide punishment for those who commit assaults or murders upon pregnant women, thereby causing the death of or injury to a fetus, Congress should pursue other avenues that focus on the harm to the woman. One limited step Congress has commendably taken already was enacting the Violence Against Women Act (VAWA), 18 U. S.C. §2261. It is well known that domestic abuse in particular often escalates when a woman is pregnant. ''Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy.'' Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 889 (1992) (citing expert witness testimony).
 Page 148       PREV PAGE       TOP OF DOC

     Congress should follow up on this 1994 law by enacting VAWA II, H.R. 357, which, among other things, would continue the commitment of VAWA I by providing grants for law enforcement and prosecution to combat violent crimes against women and expanding victims' services. In fact, co-sponsoring VAWA II would be an important first step to take by the sponsors of H.R. 2436, Representatives Graham, Smith of New Jersey, and Canady, who have not signed on to VAWA II as of July 19, 1999.

— Augment Sentences in the Event of Miscarriage or Interruption of Normal Fetal Development. Congress could bolster its efforts on behalf of pregnant women—without upending years of law on personhood—by enhancing the penalties provided for the underlying crime against the woman if she suffered injury to her fetus or a miscarriage.

     Enhancing the penalty would recognize that the harm from the underlying offense was indeed greater as a result of the injury or death to the fetus, and the enhanced penalty could steepen as the pregnancy progressed. By contrast, under the current version, it appears that the crime is of the same magnitude regardless of whether the pregnancy is visible and known—or hidden and unknown—to the perpetrator. Defendants will inevitably lodge due process challenges as a result. Instead, judges could and should enhance the penalty as the pregnancy progresses. And the penalty should be very harsh indeed at the later stages of pregnancy.

     In fact, if protecting the woman's interest in her developing fetus is accomplished through sentencing enhancements, prosecutors would actually be more likely to bring such matters to justice and to prevail. That is, if a separate crime is charged, as is proposed in H.R. 2436, it must be presented to a grand jury or otherwise indicted and charged separately, and each element of the offense must be proven beyond a reasonable doubt, generally without using hearsay testimony. On the other hand, if the penalty were simply enhanced, prosecutors could prove the death or injury of the fetus under a preponderance of the evidence standard at a sentencing hearing and any pertinent facts would be easier to prove because hearsay evidence could be admitted. In fact, prosecutors might well shy away from prosecutions under current version of H.R. 2436, because complicated—and sometimes constitutional—issues of what an ''unborn child'' is, for instance, could muddle the central issues in the case. Jurors would get tangled up in questions of whether the defendant knew the woman was pregnant, whereas if a sentence is enhanced, the judge alone can consider the scope of harms to the woman and enhance the sentence accordingly.
 Page 149       PREV PAGE       TOP OF DOC

If Congress Wants to Protect the Unborn, it Should Focus on Giving Babies a Healthy Start by Protecting Women's Health.

 Other policies that do not break new ground in recognizing ''fetal rights'' would surely benefit the health of pregnant women and the fetuses they carry. Pregnancies are healthier and babies are healthier when pregnancies are planned. So Congress should do everything in its power to ensure access to contraception, such as by enacting the Equity in Prescription Contraceptive Coverage Act (EPICC), to ensure equitable treatment by insurers of women's contraceptive needs. Title X—which not only funds contraception but also a range of reproductive health services—has for years been grossly underfunded and could serve far more low-income women with better funding. Approximately 43 million Americans are uninsured; of these, women of childbearing age and their fetuses are thus at risk. In addition, it is well known that women with addictions to drugs or alcohol who seek treatment while they are pregnant face grave problems in locating such treatment programs. Funding voluntary treatment programs could help to alleviate this problem. In sum, in addition to enacting VAWA II, Congress could take a range of steps to promote women's reproductive health, thereby helping to ensure a healthy start for millions of babies.

     

PREPARED STATEMENT OF THE AMERICAN CIVIL LIBERTIES UNION

H.R. 2436—''THE UNBORN VICTIMS OF VIOLENCE ACT'' THREATENS REPRODUCTIVE RIGHTS

 Page 150       PREV PAGE       TOP OF DOC
    Introduced by Lindsey Graham (R–SC), Chris Smith (R–NJ) and Charles Canady (R–FL), H.R. 2436 would amend the federal criminal code to create a separate, second offense if, during the commission of a federal crime, an individual causes the death of, or bodily injury to, a fetus. The American Civil Liberties Union fully supports efforts to punish acts of violence against women that injure or terminate a wanted pregnancy. H.R. 2436 is an inappropriate method of imposing such punishment, however, because it dangerously seeks to separate the woman from her fetus in the eyes of the law. Such separation is merely the first step toward eroding a woman's right to determine the fate of her own pregnancy and to direct the course of her own health care. For this reason, the ACLU opposes this bill, but supports alternative approaches to punishing violence against pregnant women.

H.R. 2436 Dangerously Separates the Rights of the Fetus and the Woman.

    The ACLU recognizes that a woman may suffer a serious physical and emotional injury if her pregnancy is ended or harmed by an assault, a drunk driving accident, or other criminal acts. This injury often amounts to more than the harm to the woman herself precisely because, during pregnancy, the woman is so intimately connected with the fetus she is carrying. H.R. 2436 ignores this inextricable link between the woman and her fetus and attempts to endow the fetus with distinct rights by creating a ''separate offense*' for injury to a fetus. This legislation would change the existing legal framework by elevating the fetus to an unprecedented status in federal law.

    Such a legal shift is not merely a matter of semantics. It would undermine the constitutional foundations of reproductive choice—a result that is the clear aim of the sponsors of H.R. 2436. It is no accident that anti-choice groups like Americans United for Life have drafted and circulated similar legislation all across the country. In a 1984 presidential election debate, Ronald Reagan, a well-known opponent of choice, cited a California feticide law as support for regarding abortion as murder, asking, ''Isn't it strange that that same woman could have taken the life of her unborn child and it was abortion, not murder, but if somebody else, does it, that's murder?'' These words demonstrate that H.R. 2436 is in irreconcilable tension with the right of reproductive choice.
 Page 151       PREV PAGE       TOP OF DOC

H.R. 2436 Lacks a Necessary Mens Rea Requirement.

    Because it lacks a mens rea requirement, H.R. 2436 disregards the Constitution's promise that citizens are entitled to due process of law. Due process requires that criminal laws contain a mens rea provision, which specifies that the perpetrator of the crime must have a criminal—and not an innocent—intent in committing the crime. Courts have struck down criminal statutes on the grounds that they lack this requisite mental intent element, and thus punish conduct engaged in innocently.

    But under H.R. 2436 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. Thus, this legislation permits a person to be prosecuted and punished for a crime that he or she did not intend to commit. Such a result violates the Constitution's due process guarantees.

Enhanced Punishment for Injury to a Pregnant Woman Can Be Achieved through Properly Crafted Legislation.

    The ACLU supports properly crafted legislation aimed at punishing violence against pregnant women, recognizing the additional and significant injury a woman may suffer from loss of, or harm to, a wanted pregnancy. Criminal interference with a woman's right to bear a child should be prevented and punished.

    Legislation that imposes enhanced penalties for criminal acts against pregnant women resulting in harm to their fetuses appropriately punishes the additional injury that such acts cause without recognizing the fetus as a legal entity separate and distinct from the woman. Such legislation focuses the criminal law where it should be: on the especially devastating loss or injury to the woman that occurs when her pregnancy is compromised.
 Page 152       PREV PAGE       TOP OF DOC

    H.R. 2436 ignores the unity between the pregnant woman and the fetus she carries. Penalty enhancements appropriately punish criminal behavior while embracing that unity.

     


Walter Baker,
July 20, 1999.
Hon. LINDSEY GRAHAM,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR CONGRESSMAN LINDSEY GRAHAM: On December 3, 1997 my sister, Tammy Lynn Baker, was brutally murdered by some type of explosive device. At the time of my sister's death she was approximately eight months pregnant. From what little information I have been given on the case both my sister and the unborn child were killed instantly. When this tragedy happened I lost my only full sibling, my best friend, and the opportunity to become an Uncle. When I was four years old and my sister was two we lost our father to a construction accident so growing up we leaned on each other a lot. This allowed us to go beyond just being siblings and become the best of friends. I can remember the day she told me she was pregnant, she had a really hard time telling me because she was so concerned how I would react. Of course I was extremely happy for her and even happier that she was so willing to take on such a huge responsibility as a single parent. From this day on I was involved with this pregnancy in some form or fashion. Beyond all the material things I began to purchase for the baby I can remember the wonderful feelings I began to feel as this baby was already consuming a big place in my heart. As months went on and all the doctors' appointments began to come I remember how my sister was torn about finding out the sex of the unborn child. After much thought she decided she wanted it to be a surprise. In her words, ''as long as it is healthy I don't care which sex it is''. Several more months passed and I became about as excited as she was about the baby's arrival. We discussed names for the baby and whenever she was not around I began to contact people about having a baby shower. I had no idea that all these plans were about to come to tragic end. On December 2, 1997 my sister called my grandmother's house, where I was living at the time, to say good night and make sure everybody was all right. I did not speak with her on that night because I was feeling ill and had already gone to bed. If I had only answered the phone at least I could have heard her voice one last time. At approximately 4:00 am on December 3, 1997 I heard a call for a rescue squad on my sisters street. I immediately jumped up and got dressed and waited to hear if they were going to her apartment. In about 5 minutes or less they returned the squad to headquarters and there was no more traffic. I lay back down on my bed and waited to see if I heard anything else but there was nothing. I got up at 5:30 am that morning and assumed everything was ok and headed into work. At about 10:00 am that morning my best friend, who I worked with at the time, called me into the managers office and told me there had been an accident and I needed to call home ASAP. When I called home my Aunt informed me that my sister had been in an accident and I needed to get home right away. Once I got home I was told what had happened and I remember such a feeling of helplessness. It has been 1 year and 7 months now and I still think of both of them every day and often find myself dreaming about how things should be right now and not how they really are. Although I still struggle with my emotions on a daily basis, the good Lord has blessed me with a strong family, a loving and supporting wife, and some close friends to help me see this thing through.
 Page 153       PREV PAGE       TOP OF DOC

    Tragedy is tragedy and it changes ones life when it happens. There are a couple of ways to deal with tragedy, one being faith in God and the other in our judicial system. My faith in God is on a personal level but faith in the judicial system is on a public level. Our country has established a court of law for a reason and if for nothing else to deter people from taking the law into their own hands. For many of us we rely on our judicial system as a method of closure, knowing that no matter what happens our loved ones will not be brought back, but a criminal conviction may keep that person or persons from harming anyone else. I can only hope that one day I will be able to achieve some type of closure on a judicial level. Any bill that may come before you on this subject may be to late to aid my sisters case, if or when it does go to trial, but it would give me some piece of mind knowing someone else may get the benefit of such a bill becoming law. In closing let me say thank you for time and I hope that you folks will give this bill a chance so that someone in the future may be able to achieve closure through our judicial system.

Regards,
Walter Baker.












(Footnote 1 return)
There is a possible ''transferred intent'' that would assist in these circumstances.


(Footnote 2 return)
I have represented a number of plaintiffs in brain-damaged baby cases stemming from medical malpractice at birth and it is astonishing the number of theories defense experts can come up with to explain the death of a newborn due to pre-natal injuries rather than the negligence of health professionals.


(Footnote 3 return)
I wish to make clear that I am not testifying on behalf of the American Bar Association or any other entity with which I am affiliated. Nor am I testifying on behalf of any of my law or lobbying clients. For example, it is a matter of public record that I have represented Planned Parenthood Federation of America (PPFA) with respect to pharmaceutical pricing issues, but I do not represent PPFA at this hearing. The views I express herein are strictly my own.


(Footnote 4 return)
The bill's new §1841 (d) defines the term ''unborn child'' tautologically as ''a child in utero.'' Unless the drafters of H.R. 2426 intend the word ''child'' to imply viability, the bill would apply to conduct that impacted a first trimester pregnancy. Whether an ''unborn child'' of such gestational age constitutes a human being raises constitutional issues beyond the scope of this testimony.


(Footnote 5 return)
My testimony is provided in the public interest; I do not speak on behalf of any client or organization.


(Footnote 6 return)
See, e.g.,Giaccio v. Pennsylvania, 382 U.S. 399, 402–403 (1966).


(Footnote 7 return)
See, e.g., United States v. Bass, 404 U.S. 336, 347 (1971).


(Footnote 8 return)
See id. at 347–349.


(Footnote 9 return)
Roe v. Wade, 410 U.S. 113, 162 (1973).


(Footnote 10 return)
See Commonwealth v. Cass, 467 N.E. 2d 1324, 1328 (Mass. 1984) (describing the common law).


(Footnote 11 return)
Roe, 410 U.S. at 157.


(Footnote 12 return)
See Webster v. Reproductive Health Services, 492 U.S. 490, 535 (Scalia, J., concurring in part and concurring in judgment) (stating that the legality of abortion is ''a political issue'' that should be decided by the states, a position dependent upon an implicit conclusion that fetuses are not ''persons'' within the meaning of the Fourteenth Amendment).