[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
    UNBORN VICTIMS OF VIOLENCE ACT OF 2003 OR LACI AND CONNER'S LAW
=======================================================================


                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 1997

                               __________

                              JULY 8, 2003

                               __________

                             Serial No. 39

                               __________

         Printed for the use of the Committee on the Judiciary






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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                   Crystal M. Roberts, Chief Counsel
                        Paul B. Taylor, Counsel
                     D. Michael Hurst, Jr., Counsel
                  Mindy Barry, Full Committee Counsel
           David Lachmann, Minority Professional Staff Member












                            C O N T E N T S

                              ----------                              

                              JULY 8, 2003

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable Melissa A. Hart, a Representative in Congress From 
  the State of Pennsylvania......................................     5
The Honorable Steve King, a Representative in Congress From the 
  State of Iowa..................................................     8
The Honorable Tom Feeney, a Representative in Congress From the 
  State of Florida...............................................     9

                               WITNESSES

Mrs. Tracy Marciniak, Mother of Victim, Mosinee, Wisconsin
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Ms. Juley Fulcher, Director of Public Policy, National Coalition 
  Against Domestic Violence
  Oral Testimony.................................................    15
  Prepared Statement.............................................    17
Ms. Serrin M. Foster, President, Feminists for Life of America
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22
Professor Gerard V. Bradley, University of Notre Dame School of 
  Law
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from Laci Peterson's family submitted by Representative 
  Hart...........................................................    44
Documents submitted by Chairman Chabot...........................    46
Response submitted by Representative King to Representative 
  Nadler's Opening Statement.....................................    60














    UNBORN VICTIMS OF VIOLENCE ACT OF 2003 OR LACI AND CONNER'S LAW

                              ----------                              


                         TUESDAY, JULY 8, 2003

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 2:05 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot 
(Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    This is the Subcommittee on the Constitution. This 
afternoon the Subcommittee convenes to consider H.R. 1997, the 
``Unborn Victims of Violence Act of 2003'' or ``Laci and 
Conner's Law.''
    I want to first thank Congresswoman Hart for her leadership 
on this issue. When Congresswoman Hart and I reintroduced this 
bill in May, it received increased attention because of the 
welcome support from Laci Peterson's family. It is important to 
remember, however, that there are many other similarly 
disturbing cases across the country which have occurred over 
time.
    Unfortunately, violence against women and their unborn 
children is a far too common occurrence in our society. In 
fact, recent studies in Maryland, North Carolina, New York 
City, and Illinois indicate that homicide is the leading cause 
of death of pregnant women in those areas of the country. Yet 
there remains a gaping hole in Federal law which would allow an 
unborn child to be killed or injured during the commission of a 
violent Federal crime without any legal consequences 
whatsoever. A remedy to this deficiency is desperately needed 
now more than ever.
    The Unborn Victims of Violence Act was designed to address 
this current inadequacy in Federal 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. This legislation is vitally 
important to expectant mothers and their families, serving as a 
deterrent to anyone who thinks that they can injure or kill an 
unborn child with minimal consequences.
    This legislation is also important to a broad majority of 
Americans. A recent poll conducted by Newsweek and Princeton 
Survey Research Associates notes that 84 percent of Americans 
believe that prosecutors should be able to bring a homicide 
charge on behalf of an unborn child killed in the womb. Mothers 
and fathers, brothers and sisters, sons and daughters all 
across our Nation are asking an important question: Why does 
the Federal Government refuse to recognize the loss of a 
valuable life when a criminal takes a woman's unborn child away 
from her?
    Contrary to allegations made by opponents of the bill, the 
Unborn Victims of Violence Act has nothing to do with abortion. 
In fact, 28 States have had fetal homicide laws on the books, 
some for over 30 years now, and all of those challenged have 
been upheld as constitutional, coexisting with current abortion 
laws.
    The Unborn Victims of Violence Act will help ensure just 
punishment for criminals like Gregory Robbins, an airman at 
Wright-Patterson Air Force Base in Ohio, just up the road from 
my district in Dayton, Ohio, who wrapped his fist in a T-shirt 
to reduce the chance that he would inflict visible bruises and 
beat his 8-months pregnant wife in the face and abdomen, 
killing their unborn child. Military prosecutors were able to 
charge Robbins for the death of the unborn child by 
assimilating Ohio's fetal homicide law through the Uniform Code 
of Military Justice. Had Mr. Robbins beaten his wife just 
across the Ohio River in Kentucky, for example, a State which 
has no fetal homicide law, he would have received no additional 
punishment for killing this child.
    In the 107th Congress, this Subcommittee heard the 
testimony of William Croston regarding the tragic loss of his 
sister, Ruth. On April 28, 1998, Ruth Croston and her unborn 
child were shot and killed by her husband, Reginald Anthony 
Falice, as she sat at a red light in Charlotte, North Carolina. 
Falice was convicted by a Federal jury 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.
    Mr. Croston's words best speak to the pain experienced by 
his family. Let me read from his testimony: ``Our family will 
forever be mourning the loss of Ruth Croston and our unborn 
niece. Our grief will last a lifetime. The emotional effects of 
the death of our niece resurface each time we hear about 
another unnecessary act of violence against a pregnant women.''
    By enacting the Unborn Victims of Violence Act, Congress 
will ensure that criminals who commit violent acts against 
pregnant women are justly punished for injuring or killing 
unborn children, as well as they are punished if they harm or 
inflict harm on a pregnant women, while affirmatively 
acknowledging to grieving family members that their deceased 
loved ones are recognized under the law.
    Let me make one final observation. I hope everyone here 
will be able to put politics aside and recognize that this is 
an important women's rights issue. We should all be able to 
agree that--regardless of our positions on abortion--that women 
should have the right to see a criminal who injures or kills 
their unborn child brought to justice.
    I know that Laci and Conner's family feel that way, and I 
know that most Americans agree. But without the Unborn Victims 
of Violence Act, Federal crimes against these innocent victims 
will continue to go unpunished and the rights of women and 
their unborn children will continue to be violated.
    Mr. Chabot. I now yield to the gentleman from New York, Mr. 
Nadler, the Ranking Member, for his opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    We are here again to consider the Unborn Victims of 
Violence Act, which has for several years unnecessarily mired 
what should be a laudable and uncontroversial effort to punish 
truly heinous crimes in the emotionally charged and legally 
suspect back allies of the abortion debate. This is 
regrettable, Mr. Chairman, because real people are suffering 
real harm, and this Committee has played abortion politics 
instead of acting to punish truly barbaric crimes.
    For those of us who are pro-choice, the right to choose 
extends not just to a woman's right to have an abortion but to 
a woman's right to carry her pregnancy to term and deliver a 
healthy baby in safety. That is why we supported the Violence 
Against Women Act, that is why we support programs to provide 
proper prenatal care and nutrition to all women, that is why we 
support proper health and nutritional services after a live 
birth, and that is why we support other initiatives like the 
Family and Medical Leave Act.
    Life does not begin at conception and end at birth. We have 
an obligation to these children and their parents. Let there be 
no mistake: Using physical violence against a woman to prevent 
her from having a child she wants is just as much an assault on 
the right to choose as is the use of violence against women who 
exercised their constitutional right to choose to end their 
pregnancies.
    A woman, and only a woman, has the right to decide when and 
whether to bring a child into the world, not an abusive 
partner, not a fanatic, certainly not her Congressman. My 
colleagues should understand that we are talking not just about 
viable healthy fetuses who are ready to be born in this bill, 
as was the case in the grotesque crime committed against 
today's witness. That is not what the bill says. The bill says, 
``in any stage of development.'' Page 4, line 24. I think that 
means any stage, including violence to embryos, violence to 
zygotes, violence to blastocysts. And I do not apologize to my 
colleagues on this Committee who have in the past taken offense 
at the use of the correct medical terms for the subject matter 
we are discussing.
    The defendant need not be aware that the women is pregnant 
or have any intent to harm a fetus. That is on page 3, lines 3 
to 9. We should have no illusions about the purpose of this 
bill, that it is, despite the Chairman's denial, yet another 
battle in a war of symbols in the abortion debate in which 
opponents of a woman's constitutional right to choose attempt 
to establish that fetuses from the earliest moments of 
conception are persons with the same rights as the adult women 
who are carrying them.
    The implication is that anyone who does not share the 
metaphysical slant of the radical anti-choice movement, that a 
one-celled zygote is a person on exactly the same basis and 
with the same rights as a child or an adult, must secretly 
favor infanticide. This bill, by making the destruction of a 
fetus or even of a zygote a crime against a fetus, without any 
reference to the terrible harm suffered by the pregnant woman, 
speaks volumes about that view.
    Recognizing an embryo or a zygote as a legal person is at 
odds with the holdings of the Supreme Court in Roe v. Wade. The 
Court clearly said, ``The unborn have never been recognized in 
the whole sense'' and concluded that person as used in the 
four--and there is a quote again--that, ``person as used in the 
14th amendment of the Constitution does not include the 
unborn.''
    The rhetoric used by proponents of this bill urging that 
the law must recognize the fetus as a victim, as a separate 
victim, is a direct assault on that holding in Roe. Rather than 
debate the abortion issue yet again, we should pass 
Representative Lofgren's legislation that provides for the same 
severe penalties, for the same terrible crimes as does the bill 
before us without getting into the thorny issue of whether an 
embryo at 30 days gestation is a person.
    The Lofgren bill provides for two separate crimes, one 
conviction for the assault and murder of the women and the new 
crime involving injury to the fetus or termination of the 
pregnancy. The major difference is that the Lofgren bill gives 
recognition to and imposes serious penalties for the additional 
and truly grotesque crime against the woman. It recognizes and 
punishes a separate crime. It does not get into the question of 
a separate person.
    Regrettably, the majority is so intent on pursuing the 
abortion issue that Representative Lofgren's legislation on 
which this Committee and the whole House have voted in the past 
was not even made part of this hearing, which it seriously 
should be.
    If we are serious about this problem, we have effective 
remedies at our disposal. If we want to play abortion politics, 
we have the bill on our agenda today. Violence against a 
pregnant woman is, first and foremost, a criminal act of 
violence against a woman that deserves strong preventative 
measures and stiff punishment.
    According to the Journal of the American Medical 
Association, homicides during pregnancy and in the year 
following birth represent a largely preventable source of 
premature mortality among young women in the United States, 
devastating children, family, and communities. While in the 
United States homicide is the leading killer of young women, 
pregnant or not, homicides of pregnant women occurred with much 
greater frequency than did homicides against all women.
    Mr. Chairman, it is a disgrace that while these preventable 
crimes continue to occur Congress fiddles with largely symbolic 
legislation, rather than take affirmative steps to deal with 
the problem. Why, for example, did the Republican majority fall 
$209 million short of President Clinton's request for full 
funding of the Violence Against Women Act? Why, now that the 
Republicans control both Houses of Congress and the White 
House, are we still shortchanging funding for the Violence 
Against Women Act? It appears that many of the Members who have 
signed on to this bill are the same ones who voted to divert 
funds from protecting women from violence to protecting stock 
dividends from taxation.
    No one who listened to the testimony this Subcommittee has 
received in the past and will hear today could have been left 
unmoved by the murders and assaults against women who wanted 
nothing more than to bear a child. This legislation is named 
for one such woman, and we will hear from another victim today. 
We owe it to these women and to those who are closest to them 
to ensure that early intervention is available and that States 
and localities receive the full resources of the Violence 
Against Women Act to prevent violence against women by 
intervening before the violence escalates to that level. We owe 
it to these victims to enact strong penalties, ones which are 
not constitutionally suspect for these heinous crimes.
    Let's not cloud that issue. Let's not fail to enact strong 
penalties that will stand the constitutional test before the 
courts by plunging a legitimate law enforcement effort into the 
murky waters of the abortion debate.
    Finally, this bill opens the door to prosecuting women or 
restraining them physically for the sake of a fetus. Some 
courts have already experimented with that approach.
    The last time we had occasion to consider this bill, the 
Supreme Court had just struck down a practice in the then 
sponsor's home State of South Carolina in which a hospital 
would give the results of a pregnant woman's blood test to 
local law enforcement for the purpose of initiating legal 
action against those women if they used improper drugs.
    Once we recognize a zygote, one cell, as this bill would 
do, as having the same legal status as the pregnant woman, it 
would logically follow that her liberty could be restricted in 
order to protect the zygote and the fetus. The whole purpose of 
Roe and of the Supreme Court holdings in these cases was to 
protect the liberty interests of the woman. This bill would 
undermine it.
    Mr. Chairman, we should deal with the Lofgren bill that 
would protect these women, make it a separate crime, recognize 
a separate crime, and impose the same penalties as the bill 
before us would do without getting into the abortion debate, 
which is wholly unnecessary for this purpose but is the real 
purpose of this bill.
    Thank you, Mr. Chairman, and I yield back the balance of my 
time.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentlelady from Pennsylvania is recognized, and I want 
to thank her for her leadership on this bill. She is the 
principal sponsor of this particular piece of legislation. 
Melissa Hart.
    Ms. Hart. Thank you. I also thank you for holding this 
hearing and for those who are here to testify on this issue 
today.
    When a woman chooses to have a child and then someone 
violently takes that child away from her, I believe there must 
be accountability. This is especially important because that 
unborn child is often the motivator, the motivating factor 
behind the attack on the pregnant woman.
    A Maryland study showed that homicide was the leading cause 
of death for pregnant women in the State, as the Chairman 
referred to earlier. According to the Maryland State Department 
of Health, there were 247 pregnancy-associated deaths between 
the years of 1993 and 1998; 50 of these were homicides.
    This study confirms a trend across the Nation, where 
similar studies in New York and Illinois as well as others have 
shown homicide as a leading cause of death for pregnant women.
    In Cook County, Illinois, 26 percent of the 95 deaths of 
pregnant women recorded between 1986 and 1989 were homicides.
    In New York, 25 percent of the 293 deaths among pregnant 
women between 1987 and 1991 were also homicides.
    The tragic theme here is that pregnant women have become 
targets of what is clearly an extreme pattern of domestic 
violence.
    In my home State of Pennsylvania, we are one of 28 States 
with a fetal homicide law. I was a lead sponsor of this bill 
when I served as a State Senator. Just 2 months ago, that law 
was used to convict a woman who had kicked a pregnant woman in 
the stomach, killing the child. The attacker had dragged the 
victim to the ground by her hair, punching and kicking her 
repeatedly.
    Forensic pathologists ruled that that unborn child died 
because of a blow to the victim's abdomen, to the mother's 
abdomen. Without this type of legislation, that attack would 
merely have been tried as an assault or a battery against that 
mother with little or no jail time for the assailant. Instead, 
because Pennsylvania has a fetal homicide law, the attacker 
faces 20 to 40 years for violently taking the life of the 
unborn child.
    I and the other sponsors of this bill hope to extend this 
necessary and commonsense remedy to Federal law, and I am 
honored that Sharon Rocha, the mother of Laci Peterson and the 
grandmother of Conner, has chosen to back this initiative. In 
fact, Laci Peterson's family wrote to me requesting that this 
bill be named after Laci and her unborn son, Conner: ``Knowing 
that the perpetrators who murder pregnant women will pay the 
price not only for the loss of the mother but for the baby as 
well will help bring justice for these victims.'' I pause 
because it is important to note that there is more than one 
victim. ``And hopefully, also,'' she adds ``that it will act as 
a deterrent to those who would consider such heinous acts.''
    I have met with Sharon Rocha, and she supports this 
legislation specifically and specifically opposes the one-
victim solution. It is clear why she supports this 
legislation--because it recognizes that there are two victims 
in these crimes.
    Her family certainly bears the burden, as do the families 
of others who have faced such tragedy. As she noted in a 
letter, which she asked me to submit for the record today, 
``please understand how adoption of such a single victim 
proposal would be a painful blow to those who, like me, are 
left to grieve after a two-victim crime because Congress would 
be saying that Conner and other innocent victims like him are 
not really victims, that they never really existed at all. But 
Conner did exist. He was loved. And we anxiously awaited 
meeting him. His room was decorated and waiting for his 
arrival. My daughter, Laci, wanted desperately to be a mother. 
His life was violently taken from him, as was Laci's, but 
before they ever even saw him.
    Mr. Chairman, I submit Sharon Rocha's letter.
    Mr. Chabot. Without objection, it will be included in the 
record.
    Ms. Hart. Thank you very much, Mr. Chairman.
    [The information referred to follows in the Appendix]
    Ms. Hart. Laci and Conner's Law will ensure that anyone who 
commits such brutal acts of domestic violence, regardless of 
whether they do so on Federal property, will face the 
possibility of serious jail time for their crimes.
    I yield back, Mr. Chairman.
    Mr. Chabot. Thank you very much.
    The gentleman from Virginia is recognized if he should like 
to make an opening statement.
    Mr. Scott. Thank you, Mr. Chairman.
    I won't make an opening statement, but I would want to, I 
guess, inquire generally to the witnesses whether or not the 
purpose of the bill could be achieved if the bill provided 
additional punishment for criminal attacks when the victim is a 
pregnant woman? I think that kind of bill could pass without 
much problem. You won't get into the constitutional issues of 
the abortion issue or evidentiary issues. And with that, Mr. 
Chairman, I would inquire why this legislation is in the 
Constitution Subcommittee and not the Crime Subcommittee if it 
purports to be a crime bill.
    Mr. Chabot. This was directed from the top, from the Chair 
of the overall Committee to this Committee. I think it is an 
appropriate Committee for it to be in.
    Mr. Nadler. Mr. Chairman, can I comment on that?
    I think it is properly in front of this Committee since it 
obviously raises major constitutional claims against the 
questions given and will face a constitutional attack if 
adopted, given the holding of the Supreme Court in the Roe v. 
Wade case in which it said we have never recognized a fetus as 
a person under the meaning of the 14th amendment.
    I think certainly as--and given the holding of the Court as 
reaffirmed in subsequent cases as to the right of women for 
privacy to have abortions if they wish in the first trimester, 
subject to some regulation in the second trimester, and the 
right of a State to prohibit it if it wishes in the third 
trimester, as applied to--if this bill were to pass as applied 
within the first two trimesters, there would be a serious 
constitutional question on whether the bill is constitutional.
    So I think this is--because it does seem to go exactly 
against the holding of the Supreme Court in Roe v. Wade. It 
does raise the question of why go this route, whereas the 
Lofgren bill would accomplish exactly the same purpose, 
except--that is of punishing the crime, of recognizing it as a 
separate crime, of giving the strong penalty, up to life 
imprisonment for the crime--without getting into that 
constitutional question.
    But because of that constitutional question, I think it is 
properly--and I think the Republican leadership ought to be 
commended for recognizing that they are raising, unnecessarily, 
a major constitutional question with this bill in assigning it 
to the Constitution Subcommittee.
    Mr. Chabot. There clearly is and can always be a 
constitutional challenge to something of this nature.
    I would note that it has been challenged in States that 
have enacted this legislation. It has always been upheld as an 
appropriate piece of legislation for those States and not 
unconstitutional. I fully expect that that would occur in this 
particular instance.
    Our goal is to protect the mother of the child and to 
protect the unborn child as well, and therefore, it should be a 
much stronger penalty, and it should be an additional penalty 
if one harms not only the woman who is carrying the unborn 
child but also the unborn child, him or herself.
    Mr. Nadler. Of course, that is the heart of the debate. No 
one disagrees that we ought to have a much stronger penalty, 
and it ought to be a penalty for harming the fetus, in addition 
to the penalty for harming the child. The question, as I said 
in my opening remarks, is not recognition of a separate crime 
or recognition of a higher penalty up to life imprisonment, as 
the Lofgren bill provides, which we would all support. The 
question is, rather, the different question of recognition of a 
separate victim, of a separate person, of the fetus as a 
person. That is the real debate here.
    It has nothing to do with the penalty. It has nothing to do 
with the recognition of a separate crime. It has nothing to do 
with the crimes in current law being too small because we all 
agree that it should be made up to life imprisonment. The 
question is simply a part of the abortion debate that the one 
bill that is before the Committee would recognize the fetus as 
a separate person; the Lofgren bill would not get into that 
question. That is the only thing that we are a disagreeing on.
    And, frankly, to use the heart-rending victims for one-
sided purposes, because their purposes will be served by 
recognizing the separate crime and by enhancing the penalties 
or by making it a separate penalty, which both bills would do, 
I don't see why we have to subject them and really distort the 
debate by making this sound as if it isn't. The debate is 
really about should we increase the penalties; should we 
recognize the separate crime? We all agree on those questions. 
The question is, should we recognize the fetus as a separate 
person?
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Iowa, Mr. King, is recognized.
    Mr. King. Thank you, Mr. Chairman, and I especially want to 
thank you, and also Ms. Hart, for bringing this before us 
today.
    This is an important piece, and the timing of it is 
something that I think is going to be helpful, that the country 
can look at these issues and be able to better frame the 
reality of the policy that we have and the policy that we have 
before us.
    With regard to the question of whether this should be 
before the Constitution Subcommittee, judging from some of the 
recent decisions of our Supreme Court, this might be a very 
busy Committee indeed if we are to examine some of these things 
that might be considered unconstitutional by our current makeup 
of the Supreme Court.
    Be that as it may, the Unborn Victims of Violence Act of 
2003 or the Laci and Conner's Law would recognize that when a 
criminal commits a Federal crime against a pregnant woman and 
injures or kills her unborn child, he has claimed two victims. 
I firmly believe that if a pregnant woman is murdered, there 
are two victims. We must recognize the value of the life of the 
unborn child by holding the murderer responsible for crimes 
against both the mother and the child.
    To ignore the death of an unborn child is to let the 
perpetrator literally get away with murder. Whether or not a 
pregnant female has a moral right to choose, no one else has 
that right, and taking that life is murder.
    Mr. Chairman, I categorically disagree with the position 
taken in his opening remarks by the gentleman from New York, 
and I would ask unanimous consent to revise and extend my 
remarks, which will be include a full rebuttal of those 
remarks.
    With that, Mr. Chairman, I would yield back the balance of 
my time. Thank you.
    Mr. Chabot. Thank you.
    The gentleman from Florida, Mr. Feeney, is recognized for 
an opening statement.
    Mr. Feeney. Well, thank you. I will be brief. And I respect 
my good colleague from Iowa, but I actually want to associate 
myself with a very small part of the comments of the gentleman 
from New York because I think he is exactly right. But the 
question here today is whether or not there is one victim or 
two.
    Ultimately, though, the gentleman from New York falls back 
on the precedent in Roe, and I think that Congressman King from 
Iowa is correct. This Supreme Court just invited us last week 
to reexamine virtually every precedent they have been involved 
in.
    In the very first paragraph in the Lawrence case, they 
actually take up and reconsider the Court's holding 17 years 
ago in the Bowers case and the Texas sodomy law strike-down; 
and I do believe that fundamentally the constitutional 
integrity of some of the arguments that this Supreme Court is 
making in its cases are not founded in the basis of the 
Constitution. So I think the Constitution Subcommittee is the 
right place to hear this.
    I think that the gentleman from New York is right, that 
their question is whether there is one victim or two. I think 
it is anybody's guess on any given day what five or six members 
of this Court will do with our United States Constitution.
    I yield back.
    Mr. Chabot. Thank you.
    At this time, we will introduce our panel here this 
afternoon. We have really an excellent panel.
    Our first witness will be Tracy Marciniak. She currently 
lives in Wisconsin with her husband, Jeff, and two young 
children. Mrs. Marciniak also has a daughter currently 
attending college. Mrs. Marciniak is a full-time mother and 
wife and survived a violent crime in February 1992. That tragic 
event, which she will be sharing with us today, has led her to 
be a full-time fighter for unborn victims of violence. And we 
thank you for being here.
    Next, we will hear from Juley Fulcher, who is currently the 
Public Policy Director for the National Coalition Against 
Domestic Violence. Ms. Fulcher previously served as Legislative 
Consultant for NOW, Legal Defense and Education Fund; and she 
was a Woman's Law and Public Policy Fellow at the Georgetown 
University Law Center Sex Discrimination Clinic.
    She is a former litigator and has taught as a visiting 
professor at the Georgetown University Law Center Domestic 
Violence Clinic. She also has a Ph.D. in psychology from Johns 
Hopkins University and has been a part-time faculty member in 
the Psychology Department at Towson University for more than 10 
years. And we welcome you here this afternoon.
    Following Ms. Fulcher, we will hear from Serrin M. Foster, 
President of Feminists for Life. Feminists for Life is a 
nonpartisan grassroots organization that seeks equality for all 
human beings and champions the needs of women. They oppose all 
forms of violence against women and children and are a member 
of the National Task Force to End Sexual and Domestic Violence 
Against Women. Ms. Foster has been an outspoken advocate, 
appearing on numerous television programs, before the national 
presidential conventions of both major political parties, and 
throughout many colleges and universities.
    Prior to her work at Feminists for Life, Ms. Foster served 
as Director of Development for the National Alliance for the 
Mentally Ill in Arlington, Virginia, assisting those suffering 
from a no-fault brain disease. Ms. Foster also formerly worked 
at St. Jude Children's Research Hospital and is a graduate of 
Old Dominion University in Norfolk, Virginia. We welcome you 
here this afternoon.
    And our final witness today will be Professor Gerard 
Bradley of the University of Notre Dame Law School in Indiana. 
Professor Bradley specializes in constitutional law as well as 
law and religion issues on which he has written numerous 
articles and publications.
    Before joining the faculty of Notre Dame, Professor Bradley 
taught at the University of Illinois from 1983 to 1992. He also 
previously served as an Assistant District Attorney for the New 
York County District Attorney's Office. Professor Bradley 
earned his B.A. from Cornell University in 1976, and his J.D. 
from Cornell Law School in 1980. We welcome you here this 
afternoon, Professor Bradley.
    We want to thank all of you for coming. Before we get to 
the testimonies, I just would ask that you try to keep it 
within the 5-minute rule. We will give a little leeway on that 
if necessary. But, as much as possible, we would ask you to try 
to do that.
    We have a lighting system there. When the yellow light 
comes on, that means that you have a minute to wrap-up. The red 
light means your time is up, but--so try to keep it within that 
as much as possible.
    Mr. Chabot. We will begin with Mrs. Marciniak.

         STATEMENT OF TRACY MARCINIAK, MOTHER OF VICTIM

    Mrs. Marciniak. Mr. Chairman and honorable Members of the 
Subcommittee, my name is Tracy Marciniak. I thank you for the 
opportunity to appear before you today to tell you my story and 
to explain to you how it is related to the Unborn Victims of 
Violence Act.
    I respectfully ask the Members of the Subcommittee to 
examine the photograph that you see before you. In this photo I 
am holding the body of my son, Zachariah Nathaniel. Often, when 
people see the photo for the first time, it takes a moment for 
them to realize that Zachariah is not peacefully sleeping. 
Zachariah was dead in this photo.
    This photo was taken at Zachariah's funeral. I carried 
Zachariah in my womb for almost 9 full months. He was killed in 
my womb only 5 days before delivery date. The first time I ever 
held him in my arms, he was already dead. This photo shows the 
second time I held him, which was the last time.
    There is no way that I can really tell you about the pain I 
feel when I visit my son's gravesite in Milwaukee and at other 
times thinking of all that I have missed with him. But that 
pain was greater because the man who killed Zachariah got away 
with murder.
    Mr. Chairman, I ask you and the other Members of the 
Committee to look at this photo and ask yourselves, does it 
show one victim or two? If you look at this photo and you see 
two victims, a dead baby and a grieving mother who survived a 
brutal assault, then you should support the Unborn Victims of 
Violence Act.
    I know that some lawmakers and some groups insist that 
there is no such thing as an unborn victim and that the crimes 
like this only have a single victim. But this is callous, and 
it is wrong. Please don't tell me that my son was not a real 
victim of a real crime. We were both victims, but only I 
survived.
    Zachariah's delivery date was to be February 13th, 1992, 
but on the night of February 8th my own husband brutally 
assaulted me in my home in Milwaukee. He held me against a 
couch, by my hair. He knew I very much wanted my son. He 
punched me very hard twice in the abdomen. Then he refused to 
call for help, and he prevented me from calling.
    After about 15 minutes of screaming in pain that I needed 
help, he finally went to a bar. From there, he called for help. 
Zachariah and I were rushed by ambulance to the hospital where 
Zachariah was delivered by emergency cesarian section. My son 
was dead. The physician said he had bled to death inside me 
because of blunt force trauma.
    My own injuries were life-threatening. I nearly died. I 
spent 3 weeks in the hospital. During this time, I was 
struggling to survive.
    The legal authorities came and spoke to my sister. They 
told her something that she found incredible. They told her 
that, in the eyes of Wisconsin law, nobody had died on the 
night of February 8th.
    Later, this information was passed on the me. I was told 
that, in the eyes of the law, no murder had occurred. I was 
devastated. My life already seemed destroyed by the loss of my 
son, but there was so much additional pain because the law was 
blind to what had really happened. The law, which I had been 
raised to believe in was based on justice, was telling me that 
Zachariah had not really been murdered.
    It took over 3 years for this case to go to trial. The 
State prosecuted my attacker for first-degree reckless injury 
and false imprisonment, and he was convicted of these counts. 
They also prosecuted him under a 1955 abortion law, but they 
failed to win a conviction on the abortion count because the 
law required that they prove a specific intent to destroy the 
life of my unborn child.
    I do not fault the State authorities or the jurors. They 
did not have the right legal tools for this type of case. The 
law simply failed to recognize what anybody who looks at the 
photo should be able to see, that Zachariah was robbed of his 
life.
    Before his trial, my attacker said on TV that he would 
never have hit me if he had thought that he could be charged 
with the killing of his child.
    My family and I looked for someone who would help us reform 
the law so that no such injustice would occur in our State in 
the future. We found only one group, and that was Wisconsin 
Right to Life. They never asked me my opinion on abortion or 
any other issue. They simply worked with me and with other 
surviving family members of unborn victims to reform the law.
    It took years. Again and again, I told my story to State 
lawmakers, and I pleaded with them, as I plead with you today: 
correct the injustice in our criminal justice system. Finally, 
on June 16th, 1998, Governor Tommy Thompson signed a fetal 
homicide law. Under this law, an unborn child is recognized as 
a legal crime victim just like any other member of the human 
race.
    Mr. Chairman, I understand very well that the Unborn 
Victims of Violence Act would only apply to Federal crimes and 
Federal jurisdiction. Therefore, even if the bill had been in 
force on the day that I was attacked, it would not have applied 
to Zachariah. But you very well know that there have been in 
the past cases like ours that did occur in Federal 
jurisdictions and during Federal crimes, and you know that 
tragically such cases are bound to occur in the future.
    I do not want to think of any surviving mother being told 
what I was told, that she did not really lose a baby, that 
nobody really died. I say no surviving mother, father, or 
grandparent should ever again be told that their murdered loved 
one never even existed in the eyes of the law.
    So I think that you should really look at these cases for 
illustrations of types of pain and injustice that result when 
unborn victims of violence are not recognized by the law. This 
has been called the Laci and Conner's bill, and it is. But it 
is also the Tracy and Zachariah bill, and it is also Shiwona 
and Heaven's bill, and it is a bill for every unborn victim and 
surviving family member.
    I am encouraged that more and more States are enacting 
unborn victims laws. I have been told that 28 States now 
recognize the unborn child as a crime victim, at least in some 
circumstances. Fifteen of these laws cover the killing of an 
unborn child at any point of his or her development in the 
womb. Texas just enacted a strong law. These laws are all 
listed on the web site www.nrlc.org, and the photograph you see 
today is also posted there.
    In Wisconsin, the Wisconsin law has been in effect for 5 
years now, and it has not had any effect on legal abortions. 
Opponents of the bill should stop trying to turn it into an 
abortion issue. It is not.
    I have read Congressman Lofgren's proposal, which she calls 
the Motherhood Protection Act. There is only one victim in that 
bill, the pregnant woman. So if you vote for that bill, you are 
really saying all over again to me, we are sorry, but nobody 
really died that night. There is no dead baby in this picture. 
More importantly, you would be saying to all of the future 
mothers, fathers, and grandparents who lose their unborn 
children in future Federal crimes, you didn't lose a baby. 
Please don't tell me that my son was not a crime victim.
    If you really think that nobody died that night, if you 
really think there is no dead baby in this picture, then vote 
for the Lofgren amendment or Lofgren bill. But please remember 
Zachariah's name and face when do you so.
    Thank you.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mrs. Marciniak follows:]
                 Prepared Statement of Tracy Marciniak
    Mr. Chairman and honorable members of the subcommittee: My name is 
Tracy Marciniak. I thank you for this opportunity to appear before you 
today to tell you my story and to explain how it is related to the 
Unborn Victims of Violence Act (H.R. 1997).
    I respectfully ask that the members of the subcommittee examine the 
photograph that you see before you. In this photo, I am holding the 
body of my son, Zachariah Nathanial.
    Often, when people see this photo for the first time, it takes a 
moment for them to realize that Zachariah is not peacefully sleeping. 
Zachariah was dead in this photograph. This photo was taken at 
Zachariah's funeral.
    I carried Zachariah in my womb for almost nine full months. He was 
killed in my womb, only five days from his delivery date. The first 
time I ever held him in my arms, he was already dead. This photo shows 
the second time I held him, which was the last time.
    There is no way that I can really tell you about the pain I feel 
when I visit my son's grave site in Milwaukee, and at other times, 
thinking of all that we missed together. But that pain was greater 
because the man who killed Zachariah got away with murder.
                          one victim, or two?
    Mr. Chairman, I ask you and the other members of the committee to 
look at this photograph and ask yourselves: Does it show one victim, or 
two?
    If you look at this photo and see two victims--a dead baby and a 
grieving mother who survived a brutal assault--then you should support 
the Unborn Victims of Violence Act.
    I know that some lawmakers and some groups insist that there is no 
such thing as an unborn victim, and that crimes like this only have a 
single victim--but that is callous and it is wrong. Please don't tell 
me that my son was not a real victim of a real crime. We were both 
victims, but only I survived.
    Zachariah's delivery date was to be February 13, 1992. But on the 
night of February 8, my own husband brutally attacked me at my home in 
Milwaukee. He held me against a couch by my hair. He knew that I very 
much wanted my son. He punched me very hard twice in the abdomen. Then 
he refused to call for help, and prevented me from calling.
    After about 15 minutes of my screaming in pain that I needed help, 
he finally went to a bar and from there called for help. I and 
Zachariah were rushed by ambulance to the hospital, where Zachariah was 
delivered by emergency Caesarean section. My son was dead. The 
physicians said he had bled to death inside me because of blunt-force 
trauma.
    My own injuries were life-threatening. I nearly died. I spent three 
weeks in the hospital.
    During the time I was struggling to survive, the legal authorities 
came and they spoke to my sister. They told her something that she 
found incredible. They told her that in the eyes of Wisconsin law, 
nobody had died on the night of February 8.
    Later, this information was passed on to me. I was told that in the 
eyes of the law, no murder had occurred. I was devastated.
    My life already seemed destroyed by the loss of my son. But there 
was so much additional pain because the law was blind to what had 
really happened. The law, which I had been raised to believe was based 
on justice, was telling me that Zachariah had not really been murdered.
    It took over three years for this case to go to trial. The state 
prosecuted my attacker for first-degree reckless injury, and for false 
imprisonment, and he was convicted of those counts. They also 
prosecuted him under a 1955 abortion law. But they failed to win a 
conviction on the abortion count, because that law required that they 
prove a specific intent to destroy the life of my unborn child. I do 
not fault the state authorities or the jurors--they simply did not have 
the right legal tool for this type of case. The law simply failed to 
recognize what anybody who looks at the photo should be able to see--
that Zachariah was robbed of his life.
                        reform of wisconsin law
    Before his trial, my attacker said on a TV program that he would 
never have hit me if he had thought he could be charged with killing an 
unborn baby.
    My family and I looked for somebody who would help us reform the 
law so that no such injustice would occur in our state in the future. 
We found only one group that was willing to help: Wisconsin Right to 
Life. They never asked me my opinion on abortion or on any other issue. 
They simply worked with me, and with other surviving family members of 
unborn victims, to reform the law.
    It took years. Again and again, I told my story to state lawmakers 
and I pleaded with them, as I now plead with you, to correct this 
injustice in our criminal justice system.
    Finally, on June 16, 1998, Governor Tommy Thompson signed the fetal 
homicide law. This means that it will never again be necessary for 
state authorities in Wisconsin to tell a grieving mother, who has lost 
her baby, that nobody really died. Under this law, an unborn child is 
recognized as a legal crime victim, just like any other member of the 
human race.
    Of course, the state still has to prove everything beyond a 
reasonable doubt, to a jury, which is as it should be. But when this 
bill was under consideration in the legislature, it was actually shown 
to some of the former jury members in our case, and they said if that 
had been the law at the time I was attacked, they would have had no 
problem convicting my attacker under it.
    Mr. Chairman, we surviving family members of unborn victims of 
violence are not asking for revenge. We are begging for justice--
justice like we were brought up to believe in and trust in. Justice 
means that the penalty must fit the crime, but that is only part of 
it--justice also requires that the law must recognize the true nature 
of a crime.
    Please hear me on this: On the night of February 8, 1992, there 
were two victims. I was nearly killed--but I survived. Little Zachariah 
died.
                       why federal bill is needed
    Mr. Chairman, I understand very well that the Unborn Victims of 
Violence Act would apply only to federal crimes and federal 
jurisdictions. Therefore, even if this bill had been in force on the 
day I was attacked, it would not have applied to Zachariah.
    But you know very well that there have been in the past cases like 
ours that did occur in federal jurisdictions and during federal crimes. 
And you know that tragically, such cases are bound to occur in the 
future. I do not want to think of any surviving mother being told what 
I was told--that she did not really lose a baby, that nobody really 
died. I say, no surviving mother, father, or grandparent should ever 
again be told that their murdered loved one never even existed in the 
eyes of the law.
    So, I think that you really should look at these state cases for 
illustrations of the type of pain and injustice that results when 
unborn victims of violence are not recognized in the law. This has been 
called Laci and Conner's bill, and it is, but it is also Tracy and 
Zachariah's bill, and it is also Shiwona and Heaven's bill, and it is a 
bill for every unborn victim and surviving family member.
    I am encouraged that more and more states are enacting unborn 
victims laws. I've been told that 28 states now recognize the unborn 
child as a crime victim at least in some circumstances, and 15 of those 
laws cover the killing of the unborn child at any point in his or her 
development in the womb. Texas just enacted a strong law. These laws 
are all listed at the website www.nrlc.org. The photograph that you 
have before you today is also posted at that website.
    I am also encouraged by recent national polls that show that more 
and more people ``get it.'' A scientific Newsweek poll released June 1 
asked people whether someone who ``kills a fetus still in the womb'' 
should face a homicide charge for that act--either throughout 
pregnancy, or from the point of ``viability,'' or not at all. Fifty-six 
percent (56%) said throughout pregnancy, and another 28% said at 
viability, for a total of 84%. Only 9% said there should be no such 
thing as a fetal homicide charge.
    Also in May, a national Fox News poll found that 84% favored a 
double-homicide charge in the Peterson murder case in California, while 
only 7% favored a single homicide charge.
                         no effect on abortion
    The Wisconsin law has been in effect for five years now and it has 
had no effect on legal abortion. Legal abortion is specifically 
exempted under that law. The bill that you are considering also has a 
specific exemption for abortion. Opponents of the bill should stop 
trying to turn it into an abortion issue.
    It really boils down to the question that I asked you earlier. Does 
the photograph show one victim, or two?
    Some lawmakers say that criminals who attack pregnant women should 
be punished more severely, but that the law must never recognize 
someone's unborn child as a legal victim. For example, I have read 
Congresswoman Lofgren's proposal, which she calls the ``Motherhood 
Protection Act.'' There is only one victim in that bill--the pregnant 
woman. So if you vote for that bill, you are really saying all over 
again to me, ``We're sorry, but nobody really died that night. There is 
no dead baby in the picture. You were the only victim.''
    More importantly, you would be saying to all of the future mothers, 
fathers, and grandparents, who lose their unborn children in future 
federal crimes, ``You didn't really lose a baby.''
    Please don't tell us that. Please don't tell me that my son was not 
a real murder victim.
    If you really think that nobody died that night, if you really 
think there is no dead baby in the picture, then vote for the Lofgren 
bill. But please remember Zachariah's name and face when you decide.

    Mr. Chabot. Ms. Fulcher.

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

    Ms. Fulcher. Good afternoon, Mr. Chairman and Members of 
the Subcommittee. On behalf of the National Coalition Against 
Domestic Violence I thank you for the opportunity to address 
the concerns of battered women who experience violence during 
their pregnancies. NCADV 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. In 1994 and 2000, Congress passed the Violence 
Against Women Act and committed to a Federal investment in 
protecting battered women and their children. It is important 
that we continue this trend and recognize domestic violence 
threats, assaults, and murders as the serious crimes that they 
are.
    Four to 8 percent of all pregnant women in this country are 
battered by the men in their lives. Studies now indicate that 
homicide is the number one killer of pregnant women, yet 
physicians do not usually screen for signs of domestic 
violence, even though instances are more common than routinely 
screened for medical problems.
    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. 
No matter how many stories like this I hear, it never ceases to 
sicken me.
    I should note that, in the cases 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 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 by early intervention and 
prevention and not a reaction to a specific set of 
circumstances after the fact.
    The Unborn Victims of Violence Act is not designed to 
protect women and does not help victims of domestic violence. 
The goal is to create a new cause of action on behalf of the 
unborn and further a specific political agenda. The result is 
that the crime committed against a pregnant woman is no longer 
about the woman victimized by violence. Instead, the focus will 
be shifted to the impact of that crime on the unborn embryo or 
fetus, once again diverting the attention of the legal system 
away from domestic violence and other forms of violence against 
women.
    Moreover, passage of the bill 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 embryo or 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 upon these State-recognized rights.
    While the Unborn Victims of Violence Act specifically 
exempts the mother from prosecution, it is easy to imagine 
subsequent legislation that would hold her responsible for 
injury to the fetus, even for violence perpetrated on her by 
her batterer under a failure 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, 
she may be less likely to seek appropriate medical assistance. 
The long-term public health implications of such a policy would 
be devastating for victims of violence and all women.
    The harmful potential of this bill is 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 are prosecuted by the State. As 
this bill would apply only in Federal cases, the change would 
do little if anything to address the crime of domestic violence 
in our country against pregnant women.
    Since the original Violence Against Women Act was passed in 
1994, we have seen a 49 percent decrease in intimate partner 
violence. Unfortunately, the fiscal year 2003 appropriations 
for the Violence Against Women Act programming fell more than 
$100 million short of the authorized amounts.
    Last year, changes to the way the Victims of Crime Act 
funds were distributed resulted in the loss of more than $30 
million to programs serving victims of domestic violence, 
sexual assault, child abuse, and other crimes. Moreover, 
funding for programs critical to the sustained safety of 
battered women, such as transitional housing, received no 
funding at all. Entities that currently work on the front lines 
to end domestic violence are experiencing large cuts in 
funding.
    If the United States Congress is serious about protecting 
women from domestic violence, whether they are pregnant or not, 
you must fully fund these programs that have already made so 
much difference in the lives of victims nationwide. Certainly 
there can be no doubt that a pregnancy lost due to domestic 
violence greatly increases that toll on a battered woman. We at 
NCADV 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. This solution would maintain the 
focus of any 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.
    Mr. Chabot. Thank you.
    [The prepared statement of Ms. Fulcher follows:]
               Prepared Statement of Juley Fulcher, Esq.
    Good afternoon Mr. Chairman and Members of the Subcommittee. My 
name is Juley Fulcher and I am the Public Policy Director of the 
National Coalition Against Domestic Violence (NCADV). On behalf of the 
Coalition, I thank you for the opportunity to address the concerns of 
battered women who experience violence during their pregnancies. 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'' (H.R. 1997) 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 we treat the crime of domestic 
violence. States began toughening laws on domestic violence and 
enforcing existing laws in the late 1980s. In 1994 \1\ and 2000,\2\ 
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 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.
---------------------------------------------------------------------------
    \1\ Public Law 103-322 [H.R. 3355]; September 13, 1994.
    \2\ Public Law 106-386 [H.R. 3244]; October 28, 2000.
---------------------------------------------------------------------------
    One-third of all female murder victims are killed by an intimate 
partner.\3\ According to a summary of recent studies, 4% to 8% of all 
pregnant women in this country are battered by the men in their lives 
\4\ with the highest rates of violence being experienced by pregnant 
adolescents.\5\ Studies now indicate that homicide is the number one 
killer of pregnant women.\6\ Women who experience abuse are more likely 
to delay prenatal care \7\ and are at a substantially increased risk of 
domestic violence.\8\ Yet physicians do not usually screen for signs of 
domestic violence even though instances are more common than routinely 
screened for gestational diabetes or preeclampsia.\9\ 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. There was a history of domestic 
violence in her case and she had sought assistance several times. 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 by early intervention and 
prevention and not a reaction to a specific set of circumstances after 
the fact, however horrible and sad.
---------------------------------------------------------------------------
    \3\ Bureau of Justice, Bureau of Justice Statistics, Homicide 
Trends from 1976-1999, (2001).
    \4\ Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., 
Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., ``Violence 
and Reproductive Health: Current Knowledge and Future Research 
Directions,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
    \5\ Wiemann, Constance M., Agurcia, Carloyn A., Berenson, Abbey B., 
Volk, Robert, J. & Rickert, Vaughn I., ``Pregnant Adolescents: 
Experiences and Behaviors Associated with Physical Assault by an 
Intimate Partner,'' Maternal and Child Health Journal, Vol. 4, No. 2, 
2000.
    \6\ Horon, I. and Cheng D. ``Enhancing surveillance for Pregnancy-
Associated Mortality--Maryland, 1993-1998.'' Journal of American 
Medical Association, Vol. 285, No. 11, pg. 1457. March 21, 2001. Study 
examines the most common cause of death for pregnant women between the 
years of 1993 to 1998.
    \7\ Parker, B. et al. ``Physical and Emotional Abuse in Pregnancy: 
A Comparison of Adult and Teenage Women''. Nursing Research, Vol. 42, 
No. 3, pg. 173-7. 1993
    \8\ Russo, Nancy Felipe and Jean Denious, Understanding the 
Relationship of Violence Against Women to Unwanted Pregnancy and its 
Resolution, (1999). In Beckman, Linda J. and S. Marie Harvey, eds. The 
new civil war. The psychology, culture, an politic of abortion. 
Washington DC, The American Psychological Association, pg. 211-234.
    \9\ Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., 
Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., ``Violence 
and Reproductive Health: Current Knowledge and Future Research 
Directions,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
---------------------------------------------------------------------------
    The ``Unborn Victims of Violence Act'' is not designed to protect 
women and does not help victims of domestic violence. The goal of the 
Act is to create a new cause of action on behalf of the unborn and 
further a specific political agenda. 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 shifted to the 
impact of that crime on the unborn embryo or fetus, once again 
diverting the attention of the legal system away from domestic violence 
or other forms 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 embryo or fetus could be the victim 
of a crime. It would not be a large intellectual leap to expand the 
notion of the unborn fetus as a victim in 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 ``failure 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, she 
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 state. While there are important federal laws to prosecute 
interstate domestic violence,\10\ interstate stalking \11\ and 
interstate violation of a protection order,\12\ 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 only 130 times between 1994 and 2000.\13\ 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.
---------------------------------------------------------------------------
    \10\ 18 U.S.C. 2261(a).
    \11\ 18 U.S.C. 2261A.
    \12\ 18 U.S.C. 2262(a)(1).
    \13\ This number reflects actual indictments under 18 U.S.C. 2261, 
2261A and 2262 through November, 2000. It does not include the largest 
category of federal domestic violence prosecutions, those brought under 
18 U.S.C. 922(g)(8)--a statute that is not addressed by the ``Unborn 
Victims of Violence Act.''
---------------------------------------------------------------------------
    Federal programming already exists that positively impacts the 
lives of hundreds of thousands of battered women and their children. 
Since the original Violence Against Women Act was passed in 1994, we 
have seen a 49% decrease in intimate partner violence.\14\ 
Unfortunately, available services still do not come close to meeting 
the needs of victims. In a recent NCADV survey, as many as two-thirds 
of the victims seeking assistance at domestic violence shelters and 
programs were turned away last year due to lack of space. Since the 
passage of the Violence Against Women Act of 2000, the fiscal year 2003 
appropriations for Violence Against Women Act programming fell more 
than 100 million dollars short of the authorized amounts. Last year, 
changes in the way Victims of Crime Act (VOCA) funds were distributed 
resulted in the loss of more than $30 million to programs serving 
victims of domestic violence, sexual assault, child abuse and other 
crimes. In Indiana, 1,185 women and children were turned away this year 
due to the lack of funding. Michigan has been forced to make cuts of 5% 
to 10% in direct assistance to victims because of the reduction in VOCA 
funding. Ohio programs have lost over $2 million dollars in funding and 
California is struggling to keep its 120 domestic violence programs 
open. Moreover, funding for programs critical to the sustained safety 
of battered women such as transitional housing received no funding at 
all. Women and their unborn children can be helped substantially more 
by other programs. The cost of intimate partner violence exceeds $5.8 
billion dollars in this country each year, not including the cost of 
the criminal justice process,\15\ yet entities that currently work on 
the front lines to end domestic violence are experiencing large cuts in 
funding. If the United States Congress is serious about protecting 
women from domestic violence, whether they are pregnant or not, you 
must fully fund these programs that have already made so much of a 
difference in the lives of victims nationwide.
---------------------------------------------------------------------------
    \14\ ``Intimate Partner Violence, 1993-2001,'' Callie Marie 
Rennison, Bureau of Justice Statistics Crime Data Brief, U.S. 
Department of Justice, Office of Justice Programs, February, 2003.
    \15\ National Center for Injury and Prevention and Control. Costs 
of Intimate Partner Violence Against Women in the United States. 
Atlanta (GA): Centers for Disease Control and Prevention. 2003.
---------------------------------------------------------------------------
    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. Chabot. Ms. Foster, you are recognized for the purpose 
of making a statement. Thank you.

STATEMENT OF SERRIN M. FOSTER, PRESIDENT, FEMINISTS FOR LIFE OF 
                            AMERICA

    Ms. Foster. Thank you.
    Good afternoon, Mr. Chairman and Members of the 
Subcommittee. My name is Serrin Foster, and I am the President 
of Feminists for Life of America. Feminists for Life is an 
education and advocacy organization that continues the work of 
the early American feminists who worked both for the rights of 
women and legal protection for the unborn.
    Feminists for Life is a member of the National Task Force 
to End Sexual and Domestic Violence Against Women. As a proud 
advocate of the Violence Against Women Act, we applaud the 
universal support by Members of Congress for VAWA--and might I 
add--for your work at the National Coalition Against Domestic 
Violence. We can all be proud that statistics show that 
violence against women has decreased since VAWA was enacted, 
but there is much work to be done.
    Feminists for Life has a track record of getting beyond 
deadlock on polarizing issues by addressing the root causes of 
problems that women face. One of the ways we do this is by 
listening to women and then prioritizing what women really 
want.
    Today I am pleased to speak from that perspective about an 
urgent question. What is the appropriate response to a woman 
who has lost her child due to an assault that she survived? 
What is the appropriate response to survivors when an assault 
takes the lives of both a pregnant woman and the child she 
carries?
    The victims are speaking loudly and clearly on this issue, 
and we need to listen. According to a 2-year study by the 
Center for the Advancement of Women, reducing violence against 
women is the number one priority of women. Women who are 
pregnant are at particular risk of being targeted for violence. 
In fact, recent studies by two different State health 
departments have shown that a leading cause of maternal 
mortality is not complications during pregnancy or childbirth; 
rather, it is homicide. We are hearing more and more horrible 
stories via mainstream media of pregnant women who are 
assaulted by those who do not want them to carry a child to 
term.
    A doctor was videotaped as he tried to poison his pregnant 
fiance. Another doctor attacked his girlfriend's abdomen with a 
needle. A number of women have tried to kill the unborn child 
of another woman who was involved with the same man. Unwilling 
fathers have hired thugs to intentionally kill the unborn 
child.
    For every story we hear, there are countless more that go 
untold. Such is the story of Marion Syversen, a board member of 
Feminists for Life, who lost her unborn child when her abusive 
father threw here down a flight of stairs when she was 
pregnant.
    Women and their families who have survived such unthinkable 
violence are unequivocal: Justice demands recognition of and 
remedy for both their assault and the killing of their unborn 
child.
    The gruesome and well-publicized case of Laci Peterson and 
her unborn baby, Conner, prompted Americans to examine their 
own convictions on this issue. According to a Newsweek/
Princeton Survey Research Associates poll, 84 percent of 
Americans believe that prosecutors should be able to bring a 
homicide charge on behalf of a fetus killed in the womb.
    Feminists for Life and our partners in the Women Deserve 
Better Campaign support the Unborn Victims of Violence Act 
because it would provide justice for the victims of Federal 
crimes of violence.
    Congresswoman Lofgren has introduced an alternative called 
the Motherhood Protection Act of 2003. Instead of recognizing a 
woman's unborn child as an additional victim, it would, 
``provide additional punishment for certain crimes against 
women when the crimes cause an interruption in the normal 
course of their pregnancies.''
    We are not here to discuss an interruption. That implies 
something temporary, as if it were possible for the victim's 
pregnancy to start back up again. And dare we ask, mother of 
whom? Motherhood is neither protected nor honored through the 
proposed Motherhood Protection Act. Instead, it tells grieving 
mothers that their lost children don't count.
    Ten days ago in the Bronx, a 54-year-old man allegedly 
kicked and punched his 24-year-old girlfriend in the abdomen. 
Julie Harris was 9 months pregnant at the time. She went 
through labor only to deliver stillborn twins. The Motherhood 
Protection Act, which some people call the single victim 
substitute, would only recognize one of three victims.
    The family of the California murder victims, Laci and 
Conner Peterson, as Congresswoman Hart just entered into 
testimony, is explicitly urging Congress to pass the Unborn 
Victims of Violence Act, also known as Laci and Conner's Law, 
and not the single victim substitute which Sharon Rocha, Laci's 
mother and Conner's grandmother, called, ``a step away from 
justice.''
    The Unborn Victims of Violence Act would also avoid 
multiplying the pain of survivors of horrendous Federal crimes 
of violence such as the bombing in Oklahoma City or the 
terrorist attacks of September 11th.
    After years of trying to have a child, Carrie and Michael 
Lenz, Jr., were overjoyed to learn that she was carrying their 
son, whom they named Michael Lenz, III. Carrying a copy of the 
sonogram, Carrie went to work early that morning to show 
coworkers the first photo of baby Michael. She and Michael were 
killed, along with three other pregnant women and their unborn 
children, when the Alfred P. Murrah Federal Building exploded 
on April 19th, 1995. This father's agony was multiplied later 
when he saw the memorial named only his wife, not his son as 
victims.
    Ms. Foster. In the eyes of the Federal Government, there 
was no second victim for this father to mourn. If the legal 
system does not recognize the loss of an unborn child, it 
becomes an unwitting agent of the perpetrator who robbed the 
survivors of the child and the life they would have had 
together.
    Women have a right to have children. On this we agree. But 
when a woman has this right taken away from her due to violence 
that kills the fetus in her womb, she needs and deserves the 
support of those on both sides of the abortion debate, those 
who support women's rights. It is also worthwhile to note that 
outside the context of abortion, unborn children are often 
recognized as persons who warrant the law's protection.
    Some have questioned whether it is reasonable to apply this 
law if the perpetrator is unaware that the woman is pregnant, 
especially if she is in the earliest stages of gestation. 
Neither the Unborn Victims of Violence Act nor the Motherhood 
Protection Act makes the distinction about the age of the 
fetus. But would anyone seriously suggest, especially those who 
advocate a right of privacy, that it is the woman's 
responsibility to disclose her pregnancy to a potential 
attacker or murderer?
    In 1990, the Supreme Court of Minnesota answered that 
question in State v. Merrill. A man who killed a woman was 
responsible for two deaths even though the woman was just 28 
days pregnant. The court said, ``the possibility that a female 
homicide victim of child bearing age may be pregnant is a 
possibility that an assaulter may not safely exclude.''
    We cannot tell grieving mothers like Tracy Marciniak, who 
testified here today, that Zachariah did not count, and we 
mourn with you for him. We cannot tell Julie Harris, the mother 
of twins, that there was only one victim when there were three. 
And we cannot tell the families of Laci and Conner, Carrie and 
Michael, III that there was only one loss to mourn.
    The Motherhood Protection Act would deny these victims the 
recognition and justice they deserve. The women have spoken. 
Women want the justice promised by the Unborn Victims of 
Violence Act, and we are asking our federally elected officials 
to honestly answer the question in the case of Laci Peterson 
and baby Conner, in the case of Tracy Marciniak and baby 
Zachariah, was there one victim or were there two? Thank you.
    [The prepared statement of Ms. Foster follows:]
                 Prepared Statement of Serrin M. Foster
    Good afternoon, Mr. Chairman and Members of the Subcommittee. My 
name is Serrin Foster and I am the President of Feminists for Life of 
America. Feminists for Life is an education and advocacy organization 
that continues the work of the early American feminists who championed 
both the rights of women and legal protection for the unborn.
    Feminists for Life is a member of the National Task Force to End 
Sexual and Domestic Violence Against Women. As a proud advocate of the 
Violence Against Women Act, we applaud the universal support by Members 
of Congress for VAWA. I thank the Members of Congress here who have 
supported VAWA. We can all be proud that statistics show violence 
against women has decreased since VAWA was enacted. But there is much 
more work to be done.
    Feminists for Life has a track record of getting beyond deadlock on 
polarizing issues by addressing the root causes of the problems women 
face. One of the ways we do this is by listening to women and then 
prioritizing what women really want. Today I am pleased to speak from 
that perspective about an urgent question: What is the appropriate 
response to a woman who has lost her unborn child due to an assault 
that she survived? What is the appropriate response to survivors when 
an assault takes the lives of both a pregnant women and the child she 
carries?
    Sarah Norton, an early American feminist who was the first woman to 
seek admission to Cornell University, asked this question more than a 
century ago. Speaking of the then-common situation in which an 
unwilling father attempted to kill an unborn child, she asked, ``Had 
the scheme been successful in destroying only the life aimed at, what 
could have been the man's crime--and what should be his punishment if, 
as accessory to one murder he commits two?'' (Woodhull and Claflin's 
Weekly, November 19, 1870)
    Today's victims are speaking loudly and clearly on this issue. We 
need to listen.
    According to a recent two-year study by the Center for the 
Advancement of Women, run by Faye Wattleton, former president of the 
Planned Parenthood Federation of America, reducing violence against 
women is the number one priority of women. Women who are pregnant are 
at particular risk of being targeted for violence. In fact, recent 
studies by two different state health departments have shown that a 
leading cause of maternal mortality is not complications during 
pregnancy or childbirth--rather, it's homicide. For example, according 
to the Journal of the American Medical Association, a Maryland study 
concluded that, ``A pregnant or recently pregnant woman is more likely 
to be a victim of homicide than to die of any other cause.''
    We are hearing more and more horrible stories via mainstream media 
of pregnant women who are assaulted by those who do not want them to 
carry a child to term.

          A doctor was videotaped as he tried to poison his 
        pregnant fiancee.

          Another doctor attacked his girlfriend's abdomen with 
        a needle.

          A number of women have tried to kill the unborn child 
        of another woman who is involved with the same man.

          Unwilling fathers have hired thugs to intentionally 
        kill the unborn child.

    For every story we hear, there are countless more that go untold, 
such as the story of Marion Syversen, a board member of Feminists for 
Life, who lost her unborn child when her abusive father threw her down 
a flight of stairs when she was pregnant.
    Women who have survived such unthinkable violence are unequivocal: 
justice demands recognition of and remedy for both their assault and 
the killing of their unborn baby. The Unborn Victims of Violence Act 
would support justice for women who lose children as the result of a 
federal crime of violence.
    Many women do not survive such crimes, and their grieving survivors 
are equally unequivocal: justice demands recognition of and remedy for 
the killing of both victims, the woman and her unborn child or 
children.
    The gruesome and well-publicized case of Laci Peterson and her 
unborn baby, Conner, prompted Americans to examine their own 
convictions on this issue. The American people, too, were unequivocal. 
They recognize and mourn the loss of both mother and child. According 
to a Newsweek/Princeton Survey Research Associates poll released June 
1, 2003, 84% of Americans believe that prosecutors should be able to 
bring a homicide charge on behalf of a fetus killed in the womb. This 
figure includes 56% who believe such a charge should apply at any point 
during pregnancy, and another 28% who would apply it after the baby is 
``viable,'' i.e., of sufficient lung development to survive outside the 
mother. Only 9% believe that a homicide charge should never be allowed 
for a fetus.
    Feminists for Life and our partners in the Women Deserve Better 
campaign support the Unborn Victims of Violence Act because it would 
provide justice for the victims of federal crimes of violence. As 
victims, survivors, and the American people clearly demand, the Unborn 
Victims of Violence Act would recognize an unborn child as a legal 
victim when he or she is injured or killed during the commission of a 
federal crime of violence.
    Congresswoman Lofgren has introduced an alternative to the Unborn 
Victims of Violence Act, called the Motherhood Protection Act of 2003. 
Instead of recognizing a woman's unborn child as an additional victim, 
it would ``provide additional punishment for certain crimes against 
women when the crimes cause an interruption in the normal course of 
their pregnancies.''
    An ``interruption?'' That implies something temporary, as if it 
were possible for the victim's pregnancy to start back up again. Dare 
we ask: mother of whom? Motherhood is neither protected nor honored 
through the proposed Motherhood Protection Act. Instead, it tells 
grieving mothers that their lost children don't count. It ignores these 
mothers' cries for recognition of their loss and for justice. It is a 
step backward in efforts to reduce violence against women.
    Ten days ago in the Bronx, a 54-year-old man allegedly kicked and 
punched his 24-year-old girlfriend in the abdomen. Julie Harris was 
nine months pregnant at the time. She went through labor only to 
deliver stillborn twins. The Motherhood Protection Act, which some call 
the single victim substitute, would only recognize one of these three 
victims.
    The family of California murder victims Laci and Conner Peterson is 
explicitly urging Congress to pass the Unborn Victims of Violence Act, 
also known as Laci and Conner's Law--not the single-victim substitute. 
Sharon Rocha, Laci's mother and Conner's grandmother, concluded a 
letter to Senators DeWine, Hatch, and Graham and Congresswoman Hart:

        I hope that every legislator will clearly understand that 
        adoption of such a single-victim amendment would be a painful 
        blow to those, like me, who are left alive after a two-victim 
        crime, because Congress would be saying that Conner and other 
        innocent unborn victims like him are not really victims--
        indeed, that they never really existed at all. But our grandson 
        did live. He had a name, he was loved, and his life was 
        violently taken from him before he ever saw the sun.

        The application of a single-victim law, such as the [Lofgren] 
        amendment, would be even more offensive in the many cases that 
        involved mothers who themselves survive criminal attacks, but 
        who lose their babies in those crimes. I don't understand how 
        any legislator can vote to force prosecutors to tell such a 
        grieving mother that she didn't really lose a baby--when she 
        knows to the depths of her soul that she did. A legislator who 
        votes for the single-victim amendment, however well motivated, 
        votes to add insult to injury.

        The advocates of the single-victim amendment seem to think that 
        the only thing that matters is how severe a sentence can be 
        meted out--but they are wrong. It matters even more that the 
        true nature of the crime be recognized, so that the 
        punishment--which should indeed be severe--will fit the true 
        nature of the crime. This is a question not only of severity, 
        but also of justice. The single-victim proposal would be a step 
        away from justice, not toward it. For example, if Congresswoman 
        Lofgren's legal philosophy was currently the law in California, 
        there would be no second homicide charge for the murder of 
        Conner.

    The Unborn Victims of Violence Act would also avoid multiplying the 
pain of survivors of horrendous federal crimes of violence such as the 
bombing in Oklahoma City or the terrorist attacks of September 11, 
2001.
    After years of trying to have a child, Carrie and Michael Lenz, Jr. 
were overjoyed to learn that she was carrying their son, whom they 
named Michael Lenz III. Carrying a copy of the sonogram, Carrie went to 
work early the next morning to show coworkers the first photo of baby 
Michael. She and Michael were killed, along with three other pregnant 
women and their unborn children, when the Alfred P. Murrah Federal 
Building exploded on April 19, 1995. This father's agony was multiplied 
later when he saw that the memorial named only his wife, not his son, 
as a victim. In the eyes of the federal government, there was no second 
victim. Timothy McVeigh was never held accountable for killing Michael 
Lenz's namesake.
    If the legal system does not recognize the loss of the unborn 
child, it becomes an unwitting agent of the perpetrator who robbed the 
survivors of the child and the life they would have had together.
    Women have a right to have children. When a woman has this right 
taken away from her due to violence that kills the fetus in her womb, 
she needs and deserves the support of all those who champion women's 
rights, including those who support legalized abortion. Columbia Law 
School Professor Michael Dorf, who is pro-choice, agrees: ``Certainly 
pro-choice activists would oppose government-mandated sterilization. 
For similar reasons, they should support punishing feticide.''
    It is also worthwhile to note that outside the context of abortion, 
unborn children are often recognized as persons who warrant the law's 
protection. Most states, for example, allow recovery in one form or 
another for prenatal injuries. Roughly half the states criminalize 
fetal homicide. Unborn children have long been recognized as persons 
for purposes of inheritance, and a child unborn at the time of his or 
her father's wrongful death has been held to be among the children for 
whose benefit a wrongful death action may be brought. Federal law 
similarly recognizes the unborn child as a human subject deserving 
protection from harmful research.
    Some have questioned whether it is reasonable to apply this law if 
the perpetrator is unaware that a woman is pregnant, especially if she 
is in the earliest stages of pregnancy.
    Neither the Unborn Victims of Violence Act nor the Motherhood 
Protection Act makes a distinction about the age of the fetus. But 
would anyone seriously suggest--especially those who advocate a right 
to privacy--that it is a woman's responsibility to disclose her 
pregnancy to a potential attacker or murderer?
    In 1990, the Supreme Court of Minnesota answered that question. In 
State v. Merrill, a man who killed a woman was responsible for two 
deaths, even though the woman was just 28 days pregnant. The court 
said: ``The possibility that a female homicide victim of child-bearing 
age may be pregnant is a possibility that an assaulter may not safely 
exclude.''
    Knowing this may serve as a deterrent to future attacks on women of 
childbearing age.
    We cannot tell grieving mothers like Tracy Marciniak, who testified 
here today, that her son Zachariah didn't count. We cannot tell Julie 
Harris, mother of twins, that there was only one victim when there were 
three. We cannot tell the families of Laci and Conner, or Carrie and 
Michael III, that they have only one loss to mourn. The Motherhood 
Protection Act would deny these victims the recognition and justice 
they deserve.
    Women have spoken. Women want the justice promised by the Unborn 
Victims of Violence Act.
    We are asking our elected Representatives to honestly answer the 
question in the case of Laci Peterson and baby Conner, was there one 
victim or two?
    Those who support the single-victim substitute would deny women 
justice.
    On behalf of women and families who have lost a child through 
violence, a father who has lost both his wife and child through 
terrorism, and Laci and Conner's family, I urge unanimous support for 
this bill, not the single-victim substitute.

    Mr. Chabot. Thank you very much. Professor Bradley.

 STATEMENT OF PROFESSOR GERARD V. BRADLEY, UNIVERSITY OF NOTRE 
                       DAME SCHOOL OF LAW

    Mr. Bradley. Mr. Chairman and Members of the Subcommittee, 
thank you for the opportunity to address the constitutionality 
of the Unborn Victims of Violence Act of 2003. The 
constitutional questions about the act seem to me are two. 
First, is it within Congress' enumerated powers, and second, if 
it is within Congress' enumerated powers, does the act 
nevertheless run afoul of Roe v. Wade and cases following it 
concerning women's reproductive liberty.
    To answer the first question, there might really seem to be 
a question. Of course, under our Constitution, Congress has no 
general police power to prohibit private violence. You say a 
job assignment reserved for the States--a job assignment which 
the Supreme Court has emphasized in several cases over the last 
few years in the so-called new federalism cases exemplified by 
U.S. v. Lopez. I think there really is no question. As to the 
first question, Congress surely does have enumerated powers 
sufficient to sustain this act, and that is basically because 
this act does not extend Congress' regulatory reach. No act 
which is presently lawful is made unlawful by this act. It is 
this act relies on what might be called predicate offenses--
that is, offenses found elsewhere in the Federal criminal 
code--and adds to them an additional count and therefore 
enhanced punishment. The act says whoever engages in conduct 
that violates any of the listed provisions is guilty of the 
offense of assaulting the unborn child. So it is to be compared 
in this regard to the RICO statute, which is different in some 
respects, but nevertheless, RICO does not extend Congress' 
reach over primary conduct of individuals.
    The second question, I think the leading question, the 
constitutional question about this act, has to do with Roe v. 
Wade, the cases following it, and women's reproductive rights.
    I remind you that nothing in this act affects, much less 
unconstitutionally restricts a woman's right to terminate her 
pregnancy. The current expression of the constitutional 
standard is the undue burden test of Casey v. Planned 
Parenthood, affirmed by the Court 3 years ago in Stenberg v. 
Carhart. I refer the Committee Members to what I call the safe 
harbor provision of section (c) of the act. This is an air 
tight immunity thrown up around the pregnant woman and her 
unborn child by this act. Simply put, no woman may be 
prosecuted under this act with respect to her unborn child. 
This is all that Roe requires. It does not require more.
    Now some say that it does require something; this act 
requires something inconsistent with Roe. I take this to be Mr. 
Nadler's position. He says it is inconsistent with Roe and, 
therefore, should be opposed on constitutional grounds. I 
disagree. Mr. Nadler said, in his opening remarks, that the Roe 
court said, and this is correct, that the unborn have not been 
recognized as persons in a whole sense. Well, maybe not, but 
this act refers to or pertains to part of legal protections 
that are afforded to persons. It refers to that part of 
personhood, one might say, which has to do with the right to be 
free of intentional assault or killing. Mr. Nadler rightly says 
that the court in Roe said, and I paraphrase, that the 14th 
amendment could not be read to establish or understood to 
include the unborn as, you might say constitutional persons. 
That is true as far as it goes, but this act is not an exercise 
of Congress' power under the 14th amendment. I think it would 
be section 5 if it were. So simply put, this is not an attempt 
by Congress to establish constitutional personhood. Congress is 
not here trying to say that the unborn are persons for purposes 
of the 14th amendment.
    Now besides those two objections one might say in a more 
general sense that there is an opposition between Roe and this 
act because this act is tantamount to recognizing the unborn as 
persons in some ordinary legal sense. Well, that seems to me 
the case; that is to say, the arguments. But again, I disagree 
with Mr. Nadler. The Roe court did not itself say that the 
unborn are not persons. The Roe court said on the other hand, 
the judiciary, including the Supreme Court, is not in a 
position to speculate as to the answer to the question of when 
life begins. In any event, I think the key case here is not Roe 
but the Webster decision of 1989, where the Supreme Court was 
confronted with an act, in that case an act by the State of 
Missouri, which said that the life of each person began at 
conception. Some people thought and argued in the court below 
in that case that this adopted a theory of when life begins and 
that doing so was contrary to Roe v. Wade. But the Supreme 
Court said no. The Supreme Court in Webster said of its own Roe 
decision that Roe meant only that a State could not justify an 
abortion regulation, otherwise invalid under Roe v. Wade, on 
the ground that life began at conception. But there, as here, 
there is nothing otherwise invalid about this act under Roe v. 
Wade. See again the safe harbor provision of subsection (c). So 
Congress, under Roe, Webster, and for that matter, Casey v. 
Planned Parenthood, is as free as was the State of Missouri in 
the late 1980's to conclude that outside the parameters of Roe, 
therefore outside the parameters of a woman's right to 
terminate her pregnancy, there are two victims, that the unborn 
are persons with at least a right to be free of assault and 
intentional killing.
    Now, final word about this act's treatment of assaults upon 
pregnant woman. I speak here in ordinary legal terms and as a 
former prosecutor from Manhattan, and I refer or compare this 
bill to the leading alternative, Representative Lofgren's 
version, which of course adds a count, enhanced punishment, but 
still retains the notion of there being one victim in the case 
of assault upon a pregnant woman. I surely agree with the 
central notion of Representative Lofgren's approach that a 
mother suffers grievously with the injury or death of her 
child, born or unborn. This loss is particularly acute where a 
child is killed by a criminal act, but the criminal law does 
not generally treat crimes, injuries, assaults against children 
as any kind of aggravation of an accompanying crime against a 
parent.
    Think of the case where a single violent act, such as 
planting a bomb or starting a fire, kills an entire family. In 
such cases, for each victim is a separate count, complete unto 
itself, for the injury or death of the particular person who is 
the subject of that count. My observation here is not that the 
alternative version proposed by Representative Lofgren is 
unconstitutional. I don't think it is unconstitutional. But it 
seems to me that this act's approach--separate victims, 
separate counts, and thus additional punishment--is not only 
constitutional but also more in line of the normal operation of 
criminal law principles than the alternative.
    Thank you again to Members of the Committee.
    [The prepared statement of Mr. Bradley follows:]
                Prepared Statement of Gerard V. Bradley
    I am grateful to the Subcommittee for this opportunity to address 
the constitutionality of the Unborn Victims of Violence Act of 2003, 
also known as ``Laci and Conner's Law.'' [Hereafter, ``Act''.]
    The first question about the constitutionality of the Act is not 
whether it violates any right protected by the Constitution, including 
the right articulated by the Supreme Court in Roe v. Wade. That would 
be the first question were we talking about a bill in a state 
legislature. The first question when looking at proposed federal 
legislation is whether some power enumerated in the Constitution 
authorizes Congress to act. The national government possesses no 
general police power to prohibit private violence. That is, basically, 
a job for the states. Especially in light of 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 doubt Congress's power to protect unborn children 
from private violence.
    There is no question. The Act does not engage these recent 
developments. There is no doubt of its constitutionality lurking in the 
so-called ``new federalism,'' as found (for example) in the Violence 
Against Women Act case, U. S. v. Morrison.
    Why is there no question about Congress's affirmative power to pass 
the Act? Because the Act does not extend Congress's reach; no primary 
conduct which is presently free of federal regulation will be regulated 
if the Act becomes law. No conduct which was lawful is to be unlawful; 
no conduct which was legal is to be illegal.
    The Act in this regard is comparable to the Racketeer Influenced 
and Corrupt Organizations Act--RICO. RICO relies upon (what it 
expressly calls) ``predicate'' offenses--and then lists them, as does 
the Act--in order to set up what 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.
    The Act relies upon established criminal law principles of 
transferred intent to add a new offense 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. 
Some persons might object to this feature of the Act, saying it 
unfairly penalizes a criminal for the possibly unforeseeable effects of 
his acts. I grant that in some cases an assailant charged under this 
Act might not know that his victim is pregnant. But I deny that it is 
unfair to treat this assailant as the Act would. Our hypothetical 
assailant is treated like all other criminals, who are obliged to take 
their victims as they find them.
    The classic expression of this common feature of criminal liability 
is the ``egg-shell skull'' rule. Consider A and B, who knock C and D, 
respectively, over the head with a glass. C is a veteran boxer, and is 
scarcely dazed. A is thus guilty of, at most, misdemeanor assault and 
gets a conditional discharge. D has a plate in his head due to an old 
sports injury, and dies from a brain hemorrhage. B is guilty of 
homicide, probably manslaughter, and goes to jail for a long time.
    This established principle also illustrated in felony murder 
statutes, where the malice manifested in the commission of a felony is 
transferred to what may even be 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.
    The leading constitutional question about the Act is undoubtedly 
about Roe v. Wade and its progeny. But nothing in the Act affects, much 
less unconstitutionally restricts, a woman's right to terminate her 
pregnancy. (The current expression of the constitutional standard is 
the ``undue burden'' test of Casey v. Planned Parenthood, affirmed by 
the Court in Stenberg v. Carhart.) 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 are 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.
    Someone might object that the Act, because it protects a child in 
utero 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?
    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 in 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 ``could not override the rights of 
the pregnant woman by adopting an answer to the question of when life 
begins.'' (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, tort injury, and (here) 
third party assaults.
    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 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.
    A final word about this Act's treatment of assaults upon pregnant 
women, in comparison with the leading alternative: enhanced punishment 
for (what would remain) a single count of assault. I surely agree with 
the central notion of the alternative (a notion entirely consistent 
with this Act), that a mother suffers grievously with the injury or 
death of her child. This loss is particularly acute where the child is 
killed by a criminal act. But the criminal law does not generally treat 
crimes against children as aggravations of an accompanying crime 
against a parent. (Think of the case where a single violent act, such 
as planting a bomb or starting a fire, kills an entire family.) For 
each victim, a distinct count, complete unto itself, for the injury or 
death of that particular individual is the norm.
    The facts to which this Act would apply are these: a woman carries 
a child in utero, and does not seek an abortion. For all the world can 
see, she considers that child her baby, to be treated as such by 
everyone: her doctors, her family, the law. Upon that child's death she 
suffers, too, of course, but does she suffer more, or differently, than 
the woman who loses a newborn to a crime? A toddler? Who is to say? Is 
there any general answer?
    My point is not that a simple enhancement of punishment is 
unconstitutional. But I do think this Act's approach--separate victims, 
separate counts, and thus additional punishment--is much more in line 
with the normal operation of criminal law principles than is the 
leading alternative.

    Mr. Chabot. Thank you very much. And panel Members will now 
have an opportunity to question the witnesses for 5 minutes, 
and I will start with myself. Let me first of all begin by 
clearing up the record a bit. Ms. Fulcher, you had stated that 
fiscal year 2003 appropriations fell more than 100 million 
short of what was authorized for that year. But you failed to 
mention that funding for the Violence Against Women Act was 
actually boosted by more than 110 million from fiscal year 2001 
to 2002 for a total of $517.22 million. That is actually a 25 
percent increase in that 1 year alone and an increase when you 
consider the budget as it currently is, pretty substantial 
increase. And the claim that we are not adequately funding the 
Violence Against Women Act and related programs I think is very 
misleading and a mischaracterization of the facts, but let me 
get on with the questions.
    Mrs. Marciniak----
    Ms. Fulcher. Mr. Chairman, may I address that comment?
    Mr. Chabot. When I ask you a question you can.
    Thank you, Ms. Marciniak, for being here and courageously 
telling us your very tragic story. Let me first of all say, at 
least as one Member, there is no question in my mind that in 
that photo over there, there are two victims and two very 
tragic victims, no question about that. You stated in your 
testimony that your attacker said on a TV program that had he 
thought he could be charged with the killing of an unborn baby 
that he never would have beaten you. Based on this testimony, 
do you think the Unborn Victims of Violence Act could serve as 
a deterrent to individuals who might attack a pregnant woman, 
and why do you think that?
    Mrs. Marciniak. I think so because if you look at the other 
laws, if you look at a drunk driver, if they know they can get 
punished for that crime, they are going to think twice. If an 
attacker of a pregnant woman knows that they can get prosecuted 
for harming or killing that woman's child, they are going to 
think twice before they do it.
    Mr. Chabot. And your husband actually stated that.
    Mrs. Marciniak. And he stated that if he knew that there 
was a law that could have prosecuted and convicted him for 
murdering his own son, he wouldn't have done it, and that was 
on national TV.
    Mr. Chabot. Ms. Fulcher, in your testimony you criticize 
H.R. 1997 because it is, ``not designed to protect women.'' You 
heard Ms. Marciniak's testimony that her husband has said that 
he would not have attacked her had he known he could be 
prosecuted for injury or death of their unborn baby. Is it 
still your contention that the Unborn Victims of Violence Act 
will not deter violence against pregnant women? Yes or no.
    Ms. Fulcher. The reality is----
    Mr. Chabot. Did you say yes?
    Ms. Fulcher. I am trying to answer the question. We have 
plenty of laws on the books that allow us to prosecute a 
batterer for his crimes. They still continue to do that. Yes, 
we need to hold perpetrators completely accountable. This is 
one of many attempts to try to do that, and there are other 
ways that could do it more effectively.
    Mr. Chabot. On that same note, you also said that by 
recognizing the unborn child as the victim of a crime in 
addition to the child's mother, ``the focus often will be 
shifted 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.'' If that is 
your position, do you also believe that protecting born 
children from violence diverts attention away from the violence 
that might be committed against their mothers?
    Ms. Fulcher. No, but the particular bill in question only 
addresses the violence against the unborn. In fact, it does not 
recognize two victims, but only one.
    Mr. Chabot. Well, right now if somebody harmed a mother and 
her child, there would be two separate crimes, no question 
about that. In this particular instance, we are saying that 
there ought to be a separate charge and a separate penalty for 
harming the unborn child as well.
    Ms. Foster and Professor Bradley, let me ask you a 
question. Do you think that strengthening protections for 
children born or unborn will erode current statutes protecting 
women from violent crime? And we will start with you, Ms. 
Foster.
    Ms. Foster. I need a booster seat, too. I don't see any 
problem with the Unborn Victims of Violence Act in this regard, 
no. I think that it is--we shouldn't be concerned about doing 
all things in every bill, and I do not think that protecting 
women is at odds with punishing a perpetrator. I think they are 
both laudable goals. And this bill, why we support it--and the 
Women Deserve Better Task Force as well as Feminists for Life--
is because we recognize the fact that knowing that a woman may 
be pregnant may be a deterrent to a perpetrator who may attack 
a woman of child bearing age. We agree with that and support 
that. And of course, we also want programs that prevent and 
support and help women and batterers to get over the problems 
that they have in terms of anger management. We don't see these 
things as mutually exclusive.
    Mr. Chabot. Thank you. Professor Bradley?
    Mr. Bradley. My answer is no. It won't divert the 
protections of pregnant woman. Indeed, it will enhance them to 
the extent that it gives prosecutors another weapon in the 
arsenal against domestic violence and assault upon pregnant 
women.
    Mr. Chabot. Thank you. My time has expired. Gentleman from 
New York is recognized for 5 minutes.
    Mr. Nadler. Ms. Fulcher, would you answer the question that 
the Chairman didn't permit you to answer?
    Ms. Fulcher. Yes. I would be happy to. As I am sure this 
Subcommittee knows, the Violence Against Women's Act of 1994 
was reauthorized in 2000 by an overwhelming majority of the 
House and Senate because everyone recognized how powerful and 
effective it had been. We greatly increased the amounts of 
money that were authorized because of that, and that is the 
reason why we saw an increase in funding in the years you 
mentioned. But the reality is that we are still turning away as 
many as two-thirds of the women who are seeking assistance in 
trying to leave a violent relationship. And in my mind, no, 
there is not enough being done by the United States Congress. 
So I think at a minimum, we need to be fully funding the 
amounts of money that were authorized overwhelmingly by 
Congress, and we should be going a step further to make sure 
that no woman has to be turned away from services that she 
needs.
    Mr. Nadler. The budget is still greatly inadequate. If we 
were serious about addressing this, we would increase that 
budget, fully fund the act?
    Ms. Fulcher. Absolutely.
    Mr. Nadler. Next question, first Ms. Fulcher, then Ms. 
Marciniak. Ms. Marciniak stated that this bill would be a 
deterrent if her husband knew that he could be prosecuted for 
damaging the fetus or killing the fetus and he would not have 
done it. Ms. Fulcher, assuming the truth of that, which I do, 
would the Lofgren bill be just as much a deterrent?
    Ms. Fulcher. Absolutely. The penalties are the same, and as 
a matter of fact, the Lofgren bill goes a step further by not 
just recognizing the unborn as a victim but by recognizing the 
unity of the two as a victim in the State in which they were a 
victim.
    Mr. Nadler. Mrs. Marciniak, do you think--why do you 
disagree, or do you, that the Lofgren bill would also be a 
deterrent at least to the same extent?
    Mrs. Marciniak. The Lofgren bill only recognizes one 
victim. There are two victims.
    Mr. Nadler. That is a different question. In terms of 
someone worried about if I caused the--if I damaged the fetus 
of my pregnant wife, I might be prosecuted beyond the point 
than if I just hit her and she weren't pregnant. Why would 
there be any psychological deterrent less or more for that guy?
    Mrs. Marciniak. I am not exactly understanding what you are 
asking in that.
    Mr. Nadler. Never mind. Professor Bradley, I was very 
struck by your remarks that this bill does not in any way 
establish a person, does not in way establish that a fetus is a 
separate person, does not undermine the--does not go against 
the comments of Roe v. Wade, et cetera, et cetera. I am struck 
by the fact that every single other person who has testified, 
my colleagues on this side of the aisle, Ms. Foster, say 
exactly the opposite, that the whole purpose of this bill is to 
establish that the fetus which was killed, it is a separate 
crime, it is a separate person. Do you agree with them or not? 
And if you agree with them, how does this not, again forgetting 
the question of penalties, if the main difference between this 
bill and the Lofgren bill is that this establishes the fetus as 
a crime against a separate person, how does this not establish 
the fetus as a separate person and thereby undermine the 
various precedents that the Supreme Court used in Roe v. Wade 
itself?
    Mr. Bradley. I agree with the panelists and, I think, 
rather disagree with what you said.
    Mr. Nadler. The question is how can you both be right?
    Mr. Bradley. We can both be right, but I think you are 
wrong. I didn't say that this bill doesn't establish at least 
in some sense, the ordinary legal personality of the unborn. 
What I did say, and I do believe, that it is not an attempt by 
Congress to establish on constitutional grounds for purposes of 
the 14th amendment that these are, for lack of a more precise 
term, constitutional persons within the meaning of the 14th 
amendment. Now Roe says something about that. Maybe it is 
obscure at points, but surely Roe talks about that prospect. 
But I take it that is not at issue here. Here, in a limited 
way, Congress is exercising a kind of ordinary police power 
with regard to Federal jurisdiction and that power is 
sufficient to recognize the unborn as persons, at least for the 
limited purpose of protecting their lives.
    Mr. Nadler. Without any impact on the question of the--
their being persons under the 14th amendment?
    Mr. Bradley. Yes.
    Mr. Nadler. I am glad to hear that, and I hope that goes 
into the record because I think that is the real purpose of the 
bill. Let me ask Ms. Foster; you take issue with the use of the 
phrase ``interruption in the normal course of pregnancy'' in 
the Lofgren bill. The sentence goes on to say, ``resulting in 
prenatal injury (including termination of the pregnancy).'' The 
bill before the Committee uses the term ``death of or bodily 
injury to a child who is in utero.''
    What besides prenatal injury or miscarriage do you think 
ought to be covered? Would you urge the gentlewoman from 
California to add whatever else that is to her bill as well?
    Ms. Foster. I think what our problem with this bill is that 
it doesn't recognize the loss. The use of the word 
``interruption,'' I think, was carefully chosen and most people 
understand.
    Mr. Nadler. Excuse me, but that is not what you said. 
Interruption in the normal course of pregnancy resulting in 
prenatal injury, including termination of the pregnancy. So we 
are not talking about a temporary interruption, as you implied 
in your statement, as you stated in your statement. We are 
talking about an interruption resulting in prenatal injury, 
including termination of the pregnancy, which seems to me to be 
the equivalent of the phrase in the other bill, the main bill, 
the one before us, death or bodily injury to a child who is in 
utero. Do you see any difference in those phrases or was that 
just verbiage?
    Mr. Chabot. The gentleman's time has expired, but you can 
answer the question.
    Ms. Foster. I recognize that a pregnancy can be terminated 
by a miscarriage, by abortion, by this kind of violence and 
also by live birth. So there is a lot of different ways a 
pregnancy can end, one of them a very happy way with a happy, 
healthy, live child. I think what is missing here is answering 
the question that women are asking, will you recognize the loss 
of my son or daughter, and that is what I am here today to 
advocate.
    Mr. Chabot. The gentlelady from Pennsylvania, Ms. Hart, is 
recognized for 5 minutes.
    Ms. Hart. Thank you, Mr. Chairman. And actually before I 
get into my questions on that point I want to add something 
that neither the Lofgren language nor Mr. Nadler seem to 
recognize, a movement that really has been prevalent in both 
the Federal Congress and on State legislatures over the last 15 
years, which is to make sure that you are recognizing victims 
of crimes. It is victims' rights. That is part of what this 
bill is all about, that a family has a grave loss and that is a 
big, big part of this. Unfortunately, the other language does 
not recognize that family's loss, and that is what this is 
really all about.
    I would like to start with a question. Ms. Marciniak, thank 
you for coming again and helping to illustrate the terrible 
loss that you and your family suffers and for the rest of your 
life. You stated in your testimony that your attacker had 
mentioned this on TV, that if he thought he would be charged 
with that killing--you already answered the question that the 
Chairman had asked, that he said he wouldn't have hit you.
    Mrs. Marciniak. Correct.
    Ms. Hart. Do you think he was motivated by something that 
was different than other people who would attack a pregnant 
woman? Was there something unique that motivated him?
    Mrs. Marciniak. No.
    Ms. Hart. You think the act we are considering would be a 
deterrent to others?
    Mrs. Marciniak. Oh, yes.
    Ms. Hart. I would like to go on, I think, to Professor 
Bradley. Opponents of the bill argue and also Ms. Fulcher today 
argue that recognizing the crime against the unborn child 
creates a whole range of dangerous legal consequences. Ms. 
Fulcher stated that the legislation holding a woman responsible 
for injuries inflicted on her unborn child is possible if this 
bill would pass. Others have argued that suit could be brought 
on behalf of the fetus to seek Federal benefits for civil 
rights claims.
    Do you know of any State that has this type of legislation 
in place where an unborn victim law resulted in any such 
extensions of the law, and do you believe that there is a 
possibility of this kind of a consequence?
    Mr. Bradley. I don't think there is a possibility because 
of this law. Now whether Congress has the power and if it does, 
whether it wants to use it to create a civil rights action on 
behalf of the unborn child survivors is a question I haven't 
thought about, but it may well have the power to do so and, 
perhaps, it should. But nothing in this law leads logically to 
that, and certainly no court would infer from this law a cause 
of action. It seems to me that this law does not compel any 
particular unfortunate result if you do think those are 
unfortunate results.
    Ms. Hart. Also regarding that issue, we specifically state 
in our language that this would not apply to a woman's action 
upon herself. Is that something that a court would be likely to 
misconstrue?
    Mr. Bradley. I can't imagine how. Courts have proven 
themselves willful at times, perhaps in the last few weeks 
especially. But I can't imagine language more clear and direct 
to the purpose to throw a complete immunity around a pregnant 
woman with regard to all of her acts concerning that unborn 
child. I can't imagine language more clear and direct.
    Ms. Hart. Thank you. Ms. Fulcher, I want to thank you for 
your work against domestic violence. In my 10 years as a State 
Senator and here, I have been working with different groups and 
working obviously to obtain funding with different programs in 
my district to help victims and to help make sure we fund the 
programs that help prevent domestic violence as well. You 
stated in your testimony that as a result of the passage of the 
Violence Against Women Act we have seen an increased number of 
criminal prosecutions of domestic violence nationwide. And I 
think that is fantastic, and we have seen it in our region as 
well when we look at the numbers. Would you--from some of your 
statements, it seems that you may think that this act may harm 
that or reverse this trend and end up decreasing prosecutions 
for domestic violence. Am I reading something in your 
testimony?
    Ms. Fulcher. I think you are reading something into it. I 
am not saying that it would end up decreasing the prosecutions 
for domestic violence necessarily, but that it is not doing 
anything to provide added safety for victims to prevent these 
crimes from happening to them.
    Ms. Hart. It isn't actually--you know every law cannot do 
everything. We have a number of opportunities here in the 
Congress to help do those things. And one of them is a bill, 
and a lot of my other colleagues have sponsored that is 
sponsored by--the main sponsor is Rob Simmons from Connecticut 
and deals with VOCA, the Victims of Crime Act, which was one of 
those laws passed in the Nation's awakening really to facing 
the fact that we have victims who are not being attended to and 
are suffering during the time that the prosecutions are going 
on and later. I have supported Representative Simmons' bill. 
And for those of you who are not familiar with it, it would 
increase funding for victims of domestic violence and programs 
to help prevent it as well by removing the cap for all the 
money that comes in for crime victims that go back to the crime 
victims because unfortunately some of that money ends up going 
back to the general fund. So that is a way for us to do that. 
This bill is focused on a different issue, and I am concerned 
that if we can approach your concern from a different way, 
which we are doing and will continue to do, why would you 
oppose the bill?
    Mr. Chabot. The gentlelady's time has expired, but you can 
answer the question.
    Ms. Fulcher. The reason for our opposition is our concern 
about how this particular piece of legislation may end up 
harming women and possibly also harming their pregnancies 
because of their possible reduced willingness to seek 
appropriate medical attention under these violent circumstances 
because they don't want their batterer to have to face a charge 
of murder.
    Ms. Hart. Mr. Chairman, if I may.
    Mr. Chabot. Ask unanimous consent for an additional 1 
minute.
    Ms. Hart. Thank you, Mr. Chairman. I understand that 
concern. I have worked with volunteers who, you know, man our 
24-hour phone lines and things back home for battered women. It 
is true that a lot of women continue to fear. But more and 
more, they have opportunities to get out, whether they are 
financially able to support themselves or not. And it seems to 
me that that really takes us backward, and it would keep women 
in a situation that they really should get out of for both them 
and their children. And I understand the fear and the concern, 
but I think we need to find a better way to address it and 
certainly not by ignoring the fact that a child has been lost.
    Mr. Chabot. Thank you. The gentleman from Virginia, Mr. 
Scott, is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, there is 
general agreement that crimes against pregnant women are more 
heinous than crimes against others. This bill is here before 
the Constitution Subcommittee for obvious reasons as we have 
heard. So, Professor Bradley, I just want to ask you a couple 
of questions and maybe kind of technical. You noted that 
because it is a Federal criminal statute, we have limited 
jurisdiction, particularly highlighted by the Lopez decision, 
and that there is a list of Federal crimes that are predicates 
to any action under this bill. Let me ask the first question, 
there is no provision for mens rea. There is no specific intent 
to harm the fetus, not even the requirement that you knew that 
the woman was pregnant?
    Mr. Bradley. That is right.
    Mr. Scott. Separate crimes generally require separate mens 
rea. How would this fair under attack on that point?
    Mr. Bradley. It is unusual for a criminal statute not to 
have a particular set of mind attached to it knowingly, 
wittingly, recklessly, but it is not unknown although it is 
unusual, and this operates in a way that several types of 
statutes do operate. Felony murder is one example or, as the 
saying goes, you take your victim as you find him or her. And 
my answer--I guess I would incorporate in my answer the comment 
I made earlier, I think it was by Ms. Marciniak, quoting a 
Minnesota court, saying to the effect, look, a person who 
assaults a woman of child bearing age just runs the risk that 
she is pregnant and will have to bear the consequences of 
injury to an unborn child if she is. That strikes me as correct 
and not unfair to the defendant in that case. It is an unusual 
circumstance, but not unknown.
    Mr. Scott. Well, let me see how this would work when you 
string all the statutes together, one is section 242, which is 
the color of State law statute. If a police officer were 
illegally arresting someone who subsequently had a miscarriage 
and he didn't know she was pregnant and didn't intend to harm 
the fetus and the fetus died, is he looking at murder?
    Mr. Bradley. Not really. First, that person, I guess the 
police officer in your example, would have to commit another 
Federal crime.
    Mr. Scott. Violation of section 242?
    Mr. Bradley. You have to commit another offense, which 
would be defined elsewhere in title 18.
    Mr. Scott. Violation of title 18, section 242 depriving any 
person of Federal, legal, or constitutional rights. And 
subsequently or during the illegal arrest, there is a 
miscarriage. Is the police officer looking at a murder rap?
    Mr. Bradley. Well, no, if it is a miscarriage--the 
officer's act would have had to cause the death of that child. 
If it caused the miscarriage, there could be liability for 
homicide. I am not sure if it would be murder.
    Mr. Scott. The way the bill reads, you are guilty of the 
same punishment provided under Federal law for that conduct had 
that injury or death occurred to the unborn child's mother, 
that is death. So you would be looking at a homicide.
    Mr. Bradley. Right. I think that is correct.
    Mr. Scott. The police officer would be looking at a 
homicide. There is also provisions in here for drug dealers. If 
a person is involved in a major drug conspiracy, that is part 
of a drug conspiracy, which means you don't have to be the 
kingpin but just part of it, if the drugs cause a miscarriage, 
you are looking at a murder rap?
    Mr. Bradley. I think that is correct also.
    Mr. Scott. How does double jeopardy work on this? If you 
lose the original charge, can you come back for the crime 
against the fetus?
    Mr. Bradley. Basically, you would have to charge both 
offenses at the same time.
    Mr. Scott. Is that in the bill?
    Mr. Bradley. That is not in the bill, but I think that 
would be the normal operation of double jeopardy principles. If 
it is a single act, whether selling drugs or a police officer 
brutalizing a pregnant women, you have to bring one indictment, 
all of the charges that arise from that act----
    Mr. Scott. If you have an explosion, do you have to bring 
everybody in the same indictment?
    Mr. Bradley. At least generally, yes. If you have one 
criminal act, planting one bomb or causing one explosion, you 
have to bring everybody into that indictment who is killed as a 
result of that act, yes.
    Mr. Scott. So if you leave somebody out you can't come back 
later?
    Mr. Bradley. Typically not.
    Mr. Scott. And you can't have a Federal charge and a State 
charge like they are doing in Oklahoma?
    Mr. Bradley. Well, you could do that because double 
jeopardy doesn't bind the different sovereignties, as they say. 
The Federal Government and the States can operate independently 
of each other and, I guess, often do. And one going first 
doesn't have any effect upon the liberty of the other 
jurisdiction to go second. Whether the State goes first or 
second doesn't matter either.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from Florida, Mr. Feeney, is recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman. I would like to direct 
a question or two to Mr. Bradley and maybe he can correct me 
where I am wrong. And first I want to welcome him back as well 
as the other panelists. You will have to understand it has been 
20 years since I have been out of law school. I spent 3 years 
answering law professors' questions and turnabout eventually is 
fair play, but I have a lot of catching up to do. And I guess 
the first thing I want to do is thank you for your 
jurisdictional argument where the predicate for Federal 
jurisdiction is laid upon other Federal offenses. I think the 
gentleman, Mr. Scott, who is a good friend and able lawyer, may 
have some ideas about which offenses ought to be excluded and 
some additional ones that may want to be included. But more to 
the point about the fact, we are the Constitutional 
Subcommittee. I think some of the questions here raised are the 
perceived offenses against the alter of the Roe decision. I 
want to know whether you read the recent Lawrence decision by 
the United States Supreme Court.
    Mr. Bradley. Yes.
    Mr. Feeney. Maybe you can correct me on where my analysis 
is wrong about where we may be heading based on their approach 
toward stare decisis. With respect to the underlying law in 
Texas, I thought it was a silly law, as Justice Thomas said. I 
would have voted to either eradicate the offense altogether or 
diminish the penalties. But nonetheless the question is who 
makes law. And under the Bradley decision--let us start so we 
understand where I am going here. In Griswold, the Supreme 
Court under some penumbra discovered a right that was later 
applied in the Roe case to say that the woman had the right to 
terminate pregnancy under certain conditions, viability, et 
cetera. In the Bowers case in 1986, the United States Supreme 
Court reviewing history, reviewing common law, basically said 
there was nothing in the Constitution that guaranteed the right 
to engage in certain private behavior known as sodomy and, 
therefore, States could do what they liked. In the Lawrence 
case, as I recently understand it and, I think, this is very 
important of where we may be going here and some of the 
concerns of the minority opponents on stare decisis. But the 
question there was the same as in Bowers, does a State have the 
right to prescribe certain private behavior? What the Court 
said is forget about Bowers. That was 17 years ago. What it 
basically said and it flatly stated that the Bowers decision 
was wrongly decided, so they threw out their own precedent. In 
fact, they cited as a reason to throw out the Bowers case the 
fact that some 25 States had under the democratic process 
actually changed the law to stay up with cultural norms and 
customs and basically either permitted the type of behavior, 
sodomy, or at least released or lowered the activity. So the 
fact that democracy was functioning full well did not stop the 
Court from creating a constitutional right to a behavior that 
was not a constitutional right 17 years ago.
    Moreover, a very interesting twist, they actually cited, 
remember their own precedent in Bowers, as I understand it and 
I want you to correct me, their own precedent in Bowers is not 
enough to stand on, but they cited a precedent in the European 
Court of Human Rights as a good reason to throw out at least 17 
years worth of jurisprudence on whether States have the 
authority and the power to outlaw this behavior. Well, 
Congresswoman Hart has suggested that there is a growing 
democratic movement in States and Congress to recognize that 
there may be more victims of specific crimes than just the ones 
that are laid out in our statutes. And what this bill does is 
to suggest effectively that Laci and Conner are more than one 
person. Now, even if the Roe decision doesn't recognize--
neither does it, as you say--it doesn't say that there are two 
persons, but it doesn't say there may not be two persons. And I 
guess it is possible under the jurisprudential legerdemain that 
the Lawrence court engaged it to suggest that culture, watching 
the Laci Peterson case, watching some of the horrific tragedies 
that one of our good witnesses described today, maybe our 
culture will catch up and suggest that Laci and Conner were two 
people and not one. Maybe you can tell me where my legal 
understanding is wrong about all this.
    Mr. Bradley. I think you get an A or at least an A minus in 
this exam, but it seems to me that you know clearly in Lawrence 
v. Texas, the Supreme Court majority at least was gauging or 
gearing its own reasoning to an emerging cultural consensus 
and, as you correctly point out, involving not only American 
legal culture but European legal culture. So be that as it may, 
it would seem there is reason to think that there is now an 
emerging cultural consensus, partly based upon the notoriety of 
Laci and Conner, I guess partly based upon the evidence at 
these hearings, that there really are two victims in the kind 
of violent acts we are talking about. There is an emerging 
cultural consensus of the general type that the Court in 
Lawrence took quite a lot of notice of.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from California, Mr. Schiff, is recognized for 5 minutes.
    Mr. Schiff. I thank the Chairman for yielding. And I want 
to start at the outset with a comment, which is really more 
about the practices in the House than about this Subcommittee, 
and our Chairman does an extraordinarily fine job. I wish we 
got to the point in the House regardless of who was in the 
majority and minority that we had an equal number of witnesses 
on both sides of the issue. To the degree that any of these 
issues help inform the Members' minds, I think it would be 
useful for us to have the issue equally portrayed. And 
Professor, I am going to put you in a little different position 
but one you should be used to from your academic environment, 
and that is I would like you to speak for the opposition from a 
legal point of view and that is if you were a constitutional 
scholar appearing on the other side of the issue on the 
Committee today, what is the most powerful argument you can 
make against this bill?
    Mr. Bradley. The one that Mr. Nadler made.
    Mr. Schiff. Tell me how you would fashion it.
    Mr. Bradley. I would fashion it pretty much the way he did; 
that is to say, if you look at Roe and take away from it a 
moderate understanding, you would have a sense that the spirit 
of Roe or perhaps the meaning of Roe is that the unborn are not 
persons and Congress or States are powerless to make them 
persons. That is one reading of Roe. It is not the reading that 
I myself think is the better one, and I have disagreed with Mr. 
Nadler's representations of Roe, but I think it is a plausible 
view of Roe although I would stress that the Court very 
studiously asserts over and over we are not saying finally who 
or what is a person. We are just saying that women get to do 
what they want when they are pregnant. But I think a decisive 
counterargument to Mr. Nadler's argument is the Webster case.
    Mr. Schiff. Before we get to that, because you are a better 
advocate for both sides than that, what is--what would you 
point to as further support of that reading of Roe?
    Mr. Bradley. Well, clearly the result in Roe is anomalous 
if you take the view of the unborn persons. You don't put in 
the charge of other persons, in this case walking around women, 
the fate or the life or death of any other person.
    Mr. Schiff. Are there any other subsequent Supreme Court 
precedents that indicate that you would take that view of Roe 
even in the context where you are not talking about a woman 
deciding to terminate her pregnancy but rather a third person 
committing a crime?
    Mr. Bradley. I don't think so. I think that Roe has to do 
with the pregnant woman context. I don't know an argument 
based----
    Mr. Schiff. If we had Larry Tribe here on the other side 
what would he say?
    Mr. Bradley. Larry Tribe would say that he probably 
disagrees with his honorable colleague from Notre Dame but that 
the better reading of Roe is more or less as Mr. Nadler 
describes it and that Webster should be disregarded as 
incorrect, poorly reasoned or in any event to be disregarded.
    Mr. Schiff. Let me ask you then a less constitutional 
question, a more practical question, and that is what is the 
disadvantage, if there is a legitimate constitutional question 
here, what is the disadvantage from a practical criminal law 
standpoint of beefing up the penalty to the same point 
effectively where the sentences would be the same? Doesn't that 
avoid the constitutional question? Isn't it generally desirable 
from both a congressional and a Supreme Court position to avoid 
the unnecessary constitutional questions when you have a remedy 
that will accomplish the same objective?
    Mr. Bradley. I think it is probably generally desirable 
though in certain cases I would hope that Congress would (in a 
certain sense) provoke a confrontation with the Court if it 
thought the Court were on the wrong track regarding the 
Constitution, and Congress would be trying to help the Court 
correct its wrong course. But generally, sure, conflict 
avoidance is the preferred route. But in this case I myself 
don't think there is a constitutional question. There are 28 or 
so of these laws in the States. Many have been tested up to the 
State's highest courts. I don't think there have been any 
holding these laws as unconstitutional. So I don't think in 
this case even a risk averse Member of Congress would be 
running much risk of a confrontation with the courts.
    Mr. Schiff. Ms. Fulcher, if I could ask you to play the 
same devil's advocate role. It seems to me the most compelling 
argument in favor of this idea would be not in the case where 
the mother is murdered as well, but rather where the mother is 
only injured and the fetus is terminated. How do you accomplish 
the same level of penalties in that kind of a circumstance, 
same deterrent factor? In my view, if someone is going to kill 
a pregnant woman, realizing they are murdering the woman, the 
fact that they are murdering a second fetus at the same time is 
not much of an additional disincentive. If they are going to 
commit murder, they are going to commit murder. But it seems to 
me different if you are talking about an assault that has the 
effect of terminating the life of the fetus as well.
    Mr. Chabot. The gentleman's time has expired, but the 
gentleman can answer the question, or gentlelady.
    Ms. Fulcher. I would say that if your goal is to either 
prevent through deterrence or to provide accountability, that 
doing so is about penalties and what ultimately happens to the 
perpetrator. This is one of a number of different proposals 
that have been put forth that would do that.
    Mr. Schiff. Mr. Chairman, may I ask a brief question on 
that?
    Mr. Chabot. Yes.
    Mr. Schiff. How do you achieve the same deterrent impact if 
an assault, for example, might carry 1 to 5 years, whereas a 
murder charge could carry up to life? Wouldn't it be ironic if 
you change the penalty--how would you change the penalty, I 
guess is the question, so that you have a much greater 
deterrent impact in the case of a pregnant woman where you have 
a miscarriage?
    Ms. Fulcher. Well, I think there is good precedent and law 
for enhanced penalties depending on who the victim is and what 
the circumstances of the crime are, and there could be a means 
of enhancing the penalties if that would occur in this 
situation.
    Mr. Schiff. So you could have a statute that says that an 
assault maybe carries 1 to 5 years but an assault that has the 
effect of terminating a pregnancy would carry up to life?
    Ms. Fulcher. Sure.
    Mr. Chabot. The gentleman from New York by unanimous 
consent is given the opportunity to ask one additional 
question.
    Mr. Nadler. Thank you, Mr. Chairman. The question is for 
Professor Bradley. I want to put you in the hot seat now, and I 
appreciate your remarks about my constitutional views but going 
back to what we were discussing about the question of 
personhood and the question of the Supreme Court saying that--
well, Supreme Court certainly did not say that a fetus is a 
person within the meaning of the 14th amendment.
    Mr. Bradley. That is correct.
    Mr. Nadler. My fear and the real reason for a lot of the 
opposition to this bill is that some of us can see precisely a 
development a few years down the road in which a future Supreme 
Court says the following: The passage by Congress of the Unborn 
Victims of Violence Act and the signature by the President and 
the similar passage of similar acts in X number of State 
legislatures and signed by X number of Governors shows the 
developing societal consensus that a fetus is a person within 
the meaning of the 14th amendment, and we so hold, and 
therefore, abortion is murder. It is not status quo ante before 
the Roe v. Wade. States can't decide to allow abortions, and to 
allow an abortion you need a constitutional amendment. Now you 
are saying, as I understand it, that that is not a likely 
outcome or a danger of this bill.
    I would ask you the following: Do you think that this bill 
in fact could in any way lead to such a thing or promote such a 
thing? And secondly, would you object, would you see any reason 
to object? Would you see the bill weaker in any way in terms of 
its professed objective if an amendment were to be included 
saying that this bill has no bearing or has no comment or 
doesn't have any relationship to the question of whether a 
fetus is a person under the meaning of the 14th amendment?
    Mr. Bradley. I think that is what it does say, and section 
(c) does say this has nothing to do with abortion whatsoever.
    Mr. Nadler. So if it were made more specific and said that 
this implies no personhood for purposes of the 14th amendment, 
you would think it would not weaken the bill and you would have 
no objection?
    Mr. Bradley. I think that is what it does say.
    Mr. Nadler. Thank you.
    Mr. Chabot. Gentleman's time has expired. In fairness, 
since I recognized the gentleman for one last question, let me 
ask one last question as well by unanimous consent, and I will 
just direct mine to Mrs. Marciniak. Again looking over at that 
photograph over there, you are trying to convince this 
Committee, and I think you are probably the one in this room 
that has felt this tragedy most directly and most profoundly. I 
will give you one last shot. Why do you think it is important 
that we recognize that there are two separate victims in that 
photograph, and what difference has it made in the lives that 
we see in that picture?
    Mrs. Marciniak. Look at the picture and tell me how many 
people you see there? There is two, my son Zachariah who gave 
his life, and there is me, and I almost gave mine. The reason I 
survived I feel is to right the injustices that are going on. 
Wisconsin didn't have a law. If you think the pain of losing a 
child at the time is the worst you could ever feel, by having 
the law that you believe tell you that he wasn't a victim was 
worse. The pain that I feel today and I will for the rest of my 
life is tripled because of that, because the law told me my son 
didn't exist.
    I took care of my son while he was inside of me. We waited 
for him. We decorated his nursery. We named him before he was 
born. We have the right for justice, and that is what we are 
begging for you to do. Stop letting these unborn victims die in 
vain.
    Mr. Chabot. Thank you very much.
    Mr. Nadler. Mr. Chairman.
    Mr. Chabot. Mr. Nadler.
    Mr. Nadler. Could you give us some idea as to the 
scheduling of this bill? The hearing I assume is basically 
over.
    Mr. Chabot. The hearing is going to be concluded.
    Mr. Nadler. Do you anticipate a Subcommittee and a full 
Committee markup? Do you anticipate that we will have floor 
action before the August recess?
    Mr. Chabot. We will have to consult with the Chairman of 
the overall Committee, and we will certainly let the minority 
side know what our thinking is. At this time, we don't have a 
date set.
    Mr. Nadler. I ask for unanimous consent, Mr. Chairman, that 
all Members have 5 legislative days to revise and extend their 
remarks and submit additional materials for the record.
    Mr. Chabot. Without objection. If there is no further 
business to come before the Committee, we are adjourned.
    [Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record





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             Documents Submitted by Chrairman Steve Chabot




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  State Unborn Victims LawsState Homicide Laws That Recognize Unborn 
          VictimsNational Right to Life CommitteeJune 23, 2003
    [latest version always posted at http://www.nrlc.org/Unborn--
victims/Statehomicidelaws092302.html]

                FULL-COVERAGE UNBORN VICTIM STATES (15)

    (States With Homicide Laws That Recognize Unborn Children as 
Victims
    Throughout the Period of Pre-natal Development)
    Arizona: The killing of an ``unborn child'' at any stage of pre-
natal development is manslaughter. Ariz. Rev. Stat. Sec. 13-1103 (A)(5) 
(West 1989 & Supp. 1998). Also to be read with Ariz. Rev. Stat. Sec.  
13-702(c)(10).
    Idaho: Murder is defined as the killing of a ``human embryo or 
fetus'' under certain conditions. The law provides that manslaughter 
includes the unlawful killing of a human embryo or fetus without 
malice. The law provides that a person commits aggravated battery when, 
in committing battery upon the person of a pregnant female, that person 
causes great bodily harm, permanent disability or permanent 
disfigurement to an embryo or fetus. Idaho Sess. Law Chap. 330 
(SB1344)(2002).
    Illinois: The killing of an ``unborn child'' at any stage of pre-
natal development is intentional homicide, voluntary manslaughter, or 
involuntary manslaughter or reckless homicide. Ill. Comp. Stat. ch. 
720, Sec. Sec. 5/9-1.2, 5/9-2.1, 5/9-3.2 (1993). Ill. Rev. Stat. ch. 
720 Sec.  5/12-3.1. A person commits battery of an unborn child if he 
intentionally or knowingly without legal justification and by any means 
causes bodily harm to an unborn child. Read with Ill. Rev. Stat. ch. 
720 Sec.  5/12-4.4.
    Louisiana: The killing of an ``unborn child'' is first degree 
feticide, second degree feticide, or third degree feticide. La. Rev. 
Stat. Ann. Sec. Sec. 14:32.5 - 14.32.8, read with Sec. Sec. 14:2(1), 
(7), (11) (West 1997).
    Michigan: The killing of an ``unborn quick child'' is manslaughter 
under Mich. Stat. Ann. Sec.  28.555. The Supreme Court of Michigan 
interpreted this statute to apply to only those unborn children who are 
viable. Larkin v. Cahalan, 208 N.W.2d 176 (Mich. 1973). However, a 
separate Michigan law, effective Jan. 1, 1999, provides felony 
penalties for actions that intentionally, or in wanton or willful 
disregard for consequences, cause a ``miscarriage or stillbirth,'' or 
cause ``aggravated physical injury to an embryo or fetus.''(M.C.L. 
756.90)
    Minnesota: The killing of an ``unborn child'' at any stage of pre-
natal development is murder (first, second, or third degree) or 
manslaughter, (first or second degree). It is also a felony to cause 
the death of an ``unborn child'' during the commission of a felony. 
Minn. Stat. Ann. Sec. Sec. 609.266, 609.2661- 609.2665, 609.268(1) 
(West 1987). The death of an ``unborn child'' through operation of a 
motor vehicle is criminal vehicular operation. Minn. Stat. Ann. 
Sec. 609.21 (West 1999).
    Missouri: The killing of an ``unborn child'' at any stage of pre-
natal development is involuntary manslaughter or first degree murder. 
Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020 (Vernon Supp. 1999), 
State v. Knapp, 843 S.W.2d 345 (Mo. 1992), State v. Holcomb, 956 S.W.2d 
286 (Mo. App. W.D. 1997).
    Nebraska: The killing of an ``unborn child'' at any stage of pre-
natal development is murder in the first degree, second degree, or 
manslaughter. Neb. Rev. Stat. Sec.  28-391 to Sec.  28-394. (2002)
    North Dakota: The killing of an ``unborn child'' at any stage of 
pre-natal development is murder, felony murder, manslaughter, or 
negligent homicide. N.D. Cent. Code Sec. Sec. 12.1-17.1-01 to 12.1-
17.1-04 (1997).
    Ohio: At any stage of pre-natal development, if an ``unborn member 
of the species homo sapiens, who is or was carried in the womb of 
another'' is killed, it is aggravated murder, murder, voluntary 
manslaughter, involuntary manslaughter, negligent homicide, aggravated 
vehicular homicide, and vehicular homicide. Ohio Rev. Code Ann. 
Sec. Sec.  2903.01 to 2903.07, 2903.09 (Anderson 1996 & Supp. 1998).
    Pennsylvania: An individual commits criminal homicide in the first, 
second, or third-degree, or voluntary manslaughter of an ``unborn 
child'' if the individual intentionally, knowingly, recklessly or 
negligently causes the death of an unborn child. 18 Pa. Cons. Stat. 
Ann. Sec. Sec.  2601 to 2609 (1998) ``Unborn child'' and ``fetus.'' 
Each term shall mean an individual organism of the species Homo sapiens 
from fertilization until live birth.''
    South Dakota: The killing of an ``unborn child'' at any stage of 
pre-natal development is fetal homicide, manslaughter, or vehicular 
homicide. S.D. Codified Laws Ann. Sec. 22-16-1, 22-16-1.1, 22-16-15(5), 
22-16-20, and 22-16-41, read with Sec. Sec.  22-1-2(31), 22-1-2(50A) 
(Supp. 1997).
    Texas: Under a law signed June 20, 2003, and effective September 1, 
2003, the protections of the entire criminal code extend to ``an unborn 
child at every stage of gestation from fertilization until birth.'' The 
law does not apply to ``conduct committed by the mother of the unborn 
child'' or to ``a lawful medical procedure performed by a physican or 
other licensed health care provider with the requisite consent.'' (SB 
319, Prenatal Protection Act)
    Utah: The killing of an ``unborn child'' at any stage of pre-natal 
development is treated as any other homicide. Utah Code Ann. Sec.  76-
5-201 et seq. (Supp. 1998)and UT SB 178 (2002).
    Wisconsin: The killing of an ``unborn child'' at any stage of pre-
natal development is first-degree intentional homicide, first-degree 
reckless homicide, second-degree intentional homicide, second-degree 
reckless homicide, homicide by negligent handling of dangerous weapon, 
explosives or fire, homicide by intoxicated use of vehicle or firearm, 
or homicide by negligent operation of vehicle. Wis. Stat. Ann. 
Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06, 
940.08, 940.09, 940.10 (West 1998).

               PARTIAL-COVERAGE UNBORN VICTIM STATES (13)

    (States with Homicide Laws That Recognize Unborn Children as 
Victims,But only During Part of the Period of Pre-natal Development) 
NOTE: These laws are gravely deficient because they do not recognize 
unborn children as victims during certain periods of their pre-natal 
development. Nevertheless, they are described here for informational 
purposes.
    Arkansas: The killing of an ``unborn child'' of twelve weeks or 
greater gestation is capital murder, murder in the first degree, murder 
in the second degree, manslaughter, or negligent homicide. Ark. Stat. 
Ann. Sec.  5-1-102(13)(b)(i)(a), read with Ark. Stat. Ann. Sec. Sec.  
5-10-101 to 5-10-105. (A separate Arkansas law makes it a battery to 
cause injury to a woman during a Class A misdemeanor to cause her to 
undergo a miscarriage or stillbirth, or to cause injury under 
conditions manifesting extreme indifference to human life and that 
results in a miscarriage or stillbirth. Ark. Stat. Ann. Sec.  5-13-201 
(a)(5)(a)).
    California: The killing of an unborn child after the embryonic 
stage is murder. Cal. Pen. Code Sec.  187(a) (West 1999)
    Florida: The killing of an ``unborn quick child'' is manslaughter, 
a felony of the second degree. Fla. Stat. Ann. Sec.  782.09 (West 
1999). The killing of an unborn child after viability is vehicular 
homicide. Fla. Stat. Ann. Sec.  782.071 (West 1999).
    Georgia: The killing of an ``unborn child'' after quickening is 
feticide, vehicular feticide, or feticide by vessel. Ga. Code Ann. 
Sec.  16-5-80 (1996); Sec.  40-6-393.1 (1997); and Sec.  52-7-12.3 
(1997).
    Indiana: The killing of ``a fetus that has attained viability'' is 
murder, voluntary manslaughter, or involuntary manslaughter. Indiana 
Code 35-42-1-1, 35-42-1-3, 35-42-1-4.
    Massachusetts: The killing of an unborn child after viability is 
vehicular homicide. Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984). 
The killing of an unborn child after viability is involuntary 
manslaughter. Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989).
    Mississippi: The killing of an ``unborn quick child'' is 
manslaughter. Miss. Code Ann. Sec.  97-3-37 (1994).
    Nevada: The killing of an ``unborn quick child'' is manslaughter. 
Nev. Rev. Stat. Sec.  200.210 (1997).
    Oklahoma: The killing of an ``unborn quick child'' is manslaughter. 
Okla. Stat. Ann. tit. 21, Sec.  713 (West 1983). The killing of an 
unborn child after viability is homicide. Hughes v. State, 868 P.2d 730 
(Okla. Crim. App. 1994).
    Rhode Island: The killing of an ``unborn quick child'' is 
manslaughter. The statute defines ``quick child'' to mean a viable 
child. R.I. Gen. Laws Sec.  11-23-5 (1994).
    South Carolina: The killing of an unborn child after viability is 
homicide. State v. Horne, 319 S.E.2d 703 (S.C. 1984); State v. Ard, 505 
S.E.2d 328 (S.C. 1998).
    Tennessee: The killing of an unborn child after viability is first-
degree murder, second-degree murder, voluntary manslaughter, vehicular 
homicide, and reckless homicide. Tenn. Code Ann. Sec. 39-13-201, 39-13-
202, 39-13-210, 39-13-211, 39-13-213, 39-13-214, 39-13-215 (1997 & 
Supp. 1998).
    Washington: The killing of an ``unborn quick child'' is 
manslaughter. Wash. Rev. Code Ann. Sec.  9A.32.060(1)(b) (West Supp. 
1999).

                          CONFLICTING STATUTES

    New York: Under New York statutory law, the killing of an ``unborn 
child'' after twenty-four weeks of pregnancy is homicide. N.Y. Pen. Law 
Sec.  125.00 (McKinney 1998). But under a separate statutory provision, 
a ``person'' that is the victim of a homicide is statutorily defined as 
a ``human being who has been born and is alive.'' N.Y. Pen. Law Sec.  
125.05 (McKinney 1998). See People v. Joseph, 130 Misc. 2d 377, 496 
N.Y.S.2d 328 (County Court 1985); In re Gloria C., 124 Misc.2d 313, 476 
N.Y.S.2d 991 (N.Y. Fam. Ct. 1984); People v. Vercelletto, 514 N.Y.S.2d 
177 (Co. Ct. 1987).

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            Resposnse Submitted by Representative Steve King
    I would like to respond to the opening statement made by the 
Ranking Member from New York, Mr. Nadler and refute some of his 
unfounded accusations.
    Several of my colleagues, including Ranking Member Nadler in his 
opening statement, take exception with the fact that this bill would 
consider a fetus, embryo, or zygote as a person and a victim of a 
crime. This bill uses the term 'child in utero' and defines it as ``a 
member of the species homo sapiens, at any stage of development, who is 
carried in the womb.'' (H.R. 1997, page 4, lines 21-25) They claim that 
this definition gives an unborn child status as a person and is 
therefore at odds with the Supreme Court decision in Roe v. Wade, that 
this bill is just an attempt to undermine a woman's 'right to choose', 
and that the use of this definition will lead to further legislation 
infringing on women's constitutional protections. However, it appears 
that none of these dire consequences were of concern to Mr. Nadler, Mr. 
Conyers, Mr. Scott, or Mr. Watt when they voted for The Innocent Child 
Protection Act of 2000 on July 25, 2000. (Congressional Record - House, 
July 25, 2000, page H6841) That bill contained the term 'child in 
utero' and defined that term using the exact same language with which 
it is defined in the resolution before us now. What has changed?
    Opponents who say The Unborn Victims of Violence Act violates the 
principles set forth in Roe are simply wrong. We are not mired in the 
``back alleys of the abortion debate'' as Mr. Nadler contends. We are 
not ``playing abortion politics.'' We are protecting the unborn 
children that women have chosen to bring into this world. The Act 
itself specifically exempts any conduct relating to an abortion, both 
by medical professionals and the mother herself.
    In his opening statement, Mr. Nadler says that in its decision in 
Roe ``[t]he Court clearly said: the unborn have never been recognized 
in the whole sense, and concluded that 'person', as used in the 
Fourteenth Amendment of the Constitution, does not include the 
unborn.'' (internal quotations omitted) What he fails to add is that 
The Court also explicitly stated that it was not resolving ``the 
difficult question of when life begins.'' (410 U.S. at 159) The court 
may have said that unborn children are not persons in the whole sense, 
but there is nothing in Roe that prohibits Congress from recognizing 
the lives of unborn children outside of the context of a woman's right 
to an abortion as specifically defined in that case. In fact, fifteen 
states already have laws that would protect unborn children throughout 
the entire period of prenatal development and another thirteen 
recognize unborn children as victims during part of their prenatal 
development. Unborn children are routinely recognized as persons for 
the purposes of inheritance and tort injury, and there is no reason why 
they cannot be recognized as persons in this context as well.
    Mr. Nadler and company claim that this is just the first step in a 
path that would eventually lead to banning abortion. That could not be 
further from the truth. This act would exempt a pregnant woman from any 
harm to her own unborn child as a result of her own actions. This in no 
way infringes on a woman's freedom. While I would not object to making 
abortion illegal once again, and I would support limitations on the 
behavior of a woman when that behavior infringes on her child's 
unalienable right to life, these areas are simply not at issue in this 
bill.
    The Roe decision was based on a woman's right to privacy, 
preventing the state from interfering with her right to make personal 
reproductive decisions. Thugs and batterers have no such right. Mr. 
Nadler and my other colleagues opposing this bill tout a woman's 'right 
to choose' an abortion, but women also have the right to choose to have 
a child. While they claim to support this proposition, they would deny 
that a child a woman has chosen to carry is a person. Once a woman has 
chosen to have a child, no one can take this right away from her, and 
the federal law should reflect this, punishing those who take the life 
of an unborn, but nonetheless loved and valued, member of a family.
    I am unsure how the Innocent Child Protection Act that many of my 
colleagues--including the gentleman from New York--supported, can be 
devoid of the same evil intentions and catastrophic outcomes as have 
been attributed to the Unborn Victims of Violence Act. Perhaps it is 
because the former bill aligned with the ideological priorities of 
those who sit across the aisle more conveniently than the latter. 
Whatever the reason for this discrepancy, such doomsday predictions are 
as unfounded in this case as they would have been in July, 2000. We 
will not execute a pregnant woman, regardless of the heinousness of her 
crime, because we know that her ``fetus'' is a unique human being with 
the full rights of personhood. The current bill is about protecting 
innocent 'children in utero' as well--children who have no less need 
for protection from harm than do the unborn children of women convicted 
of crimes and sentenced to death.
    Mr. Nadler further contends that this bill ignores the ``truly 
grotesque crime against the woman'' carrying the child. Once again, 
this is not true. We already have numerous laws punishing assault, 
battery, and murder. This bill would augment these crimes, which 
already exist to protect women, by also making the same behavior 
criminal with respect to the unborn child.
    Mr. Nadler appears to be more concerned with protecting the 
criminals who would commit these crimes than the unborn children 
injured and killed by them. He correctly points out that an attacker 
would not even need to know that a woman was pregnant to be punished 
under this law. However, the settled legal principle of transferred 
intent makes it unnecessary that an attacker know of the child's 
existence to be punished. If a person commits a crime with the intent 
to injure Victim A, but instead injures Victim B, that person's intent 
to injure A is transferred to B, and the person is held responsible for 
B's injuries. Any person who attacks a pregnant woman with an intent to 
injure her is therefore responsible for the injuries to her unborn 
child. Would Mr. Nadler really require a woman to tell her attacker she 
is pregnant if she wants to protect her child? This would be a 
preposterous imposition and would violate a woman's freedom and privacy 
more than anything in the bill we are considering today.
    Mr. Nadler has challenged the commitment of those who support this 
bill to protecting women. He asks why we are ``short-changing funding 
for the Violence Against Women Act.'' He knows as well as any other 
member of this committee that the appropriations process is about the 
distribution of limited funds. Tough choices must be made. The fact 
that a majority of the House has not seen fit to appropriate the full 
amount requested for this program does not mean we are ignoring the 
issue of violence against women or choosing to fight symbolic battles 
rather than helping women. In fact, this bill would be an additional 
deterrent to anyone considering committing violence against a woman, 
and has the added benefit of not requiring additional appropriations. 
This bill contributes to the prevention of and punishment for violence 
against women.
    Mr. Nadler has also asserted that ``homicide is the leading killer 
of young women, pregnant or not. . . .'' This is false. While homicide 
is a leading killer of young women, accidents are the leading cause of 
death for young women ages twenty to thirty-four. Homicide is the 
second most frequent cause of death for women ages twenty to twenty-
four and the fifth-leading cause of death for women ages twenty-five to 
thirty-four. The homicide rate for pregnant women is greater than the 
homicide rate for all women. (source: NOW website) While I do not 
dispute the fact that this is a serious problem, this issue is too 
important to let rhetorical flourish take precedence over truth.
    Mr. Nadler and others have accused those of us who support this 
bill of ``playing abortion politics'' and fighting a ``battle in a war 
of symbols.'' We are not playing politics. This is not symbolic. This 
is about the real goal of protecting unborn children from violence 
committed against them and their mothers. This is about punishing those 
who would injure or take the life of a child whom a woman has chosen to 
bring into this world.

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