House Report 107-42 - UNBORN VICTIMS OF VIOLENCE ACT OF 2001

[House Report 107-42]
[From the U.S. Government Publishing Office]

107th Congress Report 107-42
HOUSE OF REPRESENTATIVES
1st Session Part 1

======================================================================

UNBORN VICTIMS OF VIOLENCE ACT OF 2001

_______

April 20, 2001.--Ordered to be printed

_______

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

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 503]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 503) to amend title 18, United States Code, and the
Uniform Code of Military Justice to protect unborn children
from assault and murder, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.

CONTENTS

Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 15
Committee Consideration.......................................... 15
Vote of the Committee............................................ 15
Committee Oversight Findings..................................... 18
Performance Goals and Objectives................................. 18
New Budget Authority and Tax Expenditures........................ 18
Congressional Budget Office Cost Estimate........................ 18
Constitutional Authority Statement............................... 19
Section-by-Section Analysis and Discussion....................... 19
Changes in Existing Law Made by the Bill, as Reported............ 20
Markup Transcript................................................ 23
Dissenting Views................................................. 73

Purpose and Summary

Under current Federal law, an individual who commits a
Federal crime of violence against a pregnant woman receives no
additional punishment for killing or injuring the woman's
unborn child during the commission of the crime. Therefore,
except in those States that recognize unborn children as
victims of such crimes, injuring or killing an unborn child
during the commission of a violent crime has no legal
consequence whatsoever.\1\
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\1\ Eleven States currently have laws that recognize the unborn as
victims throughout the period of prenatal development. Another thirteen
States have laws that recognize the unborn as victims during only part
of their prenatal development, and seven other States criminalize
certain conduct that ``terminates a pregnancy'' or causes a
miscarriage.
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H.R. 503, the ``Unborn Victims of Violence Act of 2001,''
was designed to narrow this gap in the law by providing that an
individual who injures or kills an unborn child during the
commission of certain Federal crimes of violence will be guilty
of a separate offense. The punishment for that separate offense
is the same as the punishment provided under Federal law had
the same injury or death resulted to the pregnant woman. If the
perpetrator commits the predicate offense with the intent to
kill the unborn child, the punishment for that offense is the
same as the punishment provided under Federal law for
intentionally killing or attempting to kill a human being.
By its own terms, H.R. 503 does not apply to ``conduct
relating to an abortion for which the consent of the pregnant
woman has been obtained or for which such consent is implied by
law.'' The bill also does not permit prosecution ``of any
person for any medical treatment of the pregnant woman or her
unborn child,'' or ``of any woman with respect to her unborn
child.''

Background and Need for the Legislation

I. Current Federal Law

A. The ``Born Alive'' Rule
Federal law does not currently permit prosecution of
violent criminals for killing or injuring unborn children.
Instead, Federal criminal statutes incorporate the common law
``born alive'' rule, which provides that a criminal may be
prosecuted for killing an unborn child only if the child was
born alive after the assault and later died as a result of the
fetal injuries.\2\
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\2\ See United States v. Spencer, 839 F.2d 1341 (9th Cir. 1988).
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The born alive rule has been rendered obsolete by progress
in science and medicine, however. As one commentator explains,
``the historical basis of the born alive rule was developed out
of a lack of sophisticated medical knowledge.''\3\ Because
pregnancy was difficult to determine, the common law recognized
that live birth was the most reliable means of ensuring that a
woman was with child and that the child was in fact a living
being.\4\
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\3\ Cari L. Leventhal, Comment, The Crimes Against the Unborn Child
Act: Recognizing Potential Human Life in Pennsylvania Criminal Law, 103
Dick. L. Rev. 173, 175 (1998).
\4\ Id. at 175-76. See also State v. Trudell, 755 P.2d 511, 513
(Kan. 1988) (same); Clarke D. Forsythe, Homicide of the Unborn Child:
The Born Alive Rule and Other legal Anachronisms, 21 Val. U. L. Rev.
563, 567-80 (1987) (same).
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The use of ultrasound, fetal heart monitoring, in vitro
fertilization, and fetoscopy has greatly enhanced our
understanding of the development of unborn children.\5\
Pursuant to this enhanced knowledge, the law today recognizes,
for example, a cause of action for wrongful death where an
unborn child has been killed,\6\ as well as a mother's right to
compensation from the father for prenatal care in domestic
relations cases, even where the child is not yet born.\7\ Even
the United States Supreme Court in Roe v. Wade acknowledged the
inheritance and other property rights that unborn children
enjoy in modern law.\8\
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\5\ See Mary E. Barrazoto, Note, Judicial Recognition of Feticide:
Usurping the Power of the Legislature?, 24 J. Fam. L. 43, 45 (1986).
\6\ See Fowler v. Woodward, 138 S.E.2d 42 (S.C. 1964).
\7\ See Tex. Fam. Code Ann. Sec. 160.005.
\8\ See Roe v. Wade, 410 U.S. 113, 162 (1973).
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Because of these developments, the current trend in
American law is to abolish the born alive rule.\9\ In many
states, this abolition is manifest in the enactment of
legislation making it a crime to kill an unborn child.\10\ Such
legislation further reflects the growing trend in American
jurisdictions of recognizing greater legal protections for
unborn children, a trend consistent with the advancements in
medical knowledge and technology.\11\
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\9\ See Leventhal, supra note 3, at 176.
\10\ See, e.g., Ariz. Rev. Stat. Sec. 13-1103(A)(5); Ark. Code Ann.
Sec. 5-10-101; Fla. Stat. Ann. Sec. 782.09; Ga. Code Ann. Sec. Sec. 16-
5-80, 40-6-393.1, 52-7-12.3; 720 Ill. Comp. Stat. Ann. Sec. Sec. 5/9-
1.2, 5/9-2.1, 5/0-3.2; La. Rev. Stat. Ann. Sec. Sec. 14:32.5-14.32.8;
Mich. Stat. Ann. Sec. 28.555; Minn. Stat. Ann. Sec. Sec. 609.2661-609 -
609.2665; Minn. Stat. Ann. Sec. Sec. 609.267 - 609.2672; Miss. Code
Ann. Sec. 97-3-37; Mo. Stat. Ann. Sec. Sec. 1.205, 565.024, 565.020;
Nev. Rev. Stat. Sec. 200.210; N.D. Cent. Code Sec. Sec. 12.1-17.1-02 to
12.1-17.1-04; N.D. Cent. Code Sec. Sec. 12.1-17.1-05, 12.1-17.1-06; 18
Pa. Cons. Stat. Ann. Sec. Sec. 2601-2609; Okla. Stat. Ann. Tit. 21
Sec. 713; R.I. Gen. Laws Sec. 11-22-5; S.D. Codified Laws Ann.
Sec. Sec. 22-16-1, 22-16-1.1, 22-16-20; Utah Code Ann. Sec. 76-5-201;
Wash. Rev. Code Ann. Sec. 9A.32.060; Wisc. Stat. Ann. Sec. Sec. 939.75,
939.24, 939.25, 940.01, 940.02, 940.05, 940.06, 940.08, 940.09, 940.10.
Two States have held that killing an unborn child is a crime even at
common law, thus dispensing with the need for legislation. See
Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984); State v. Horn, 319
S.E.2d 703 (S.C. 1984).
\11\ See People v. Hall, 557 N.Y.S.2d 879 (N.Y. App. Div. 1990)
(relying on advancements in medical technology to determine that a 28-
week-old fetus removed from its mother's womb by Caesarian section and
immediately placed on a ventilator was a ``person'' under New York
Penal Law). See also Annissa R. Obasi, Protecting Our Vital Organs: The
Case for Fetal Homicide Laws in Texas, 4 Tex. Wesleyan L. Rev. 207, 216
(1998) (explaining that advancements in medical science have influenced
the development of fetal rights); Stephanie Ritrivi McCavitt, Note, The
``Born Alive'' Rule: A Proposed Change to the New York Law Based on
Modern Medical Technology, 36 N.Y.L. Sch. L. Rev. 609, 618 (1991)
(arguing that courts should be willing to use technological
advancements to determine whether unborn children are ``persons'' for
homicide purposes).
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H.R. 503 thus follows the current trend of modern legal
theory and practice by dismantling the common law born alive
rule at the Federal level. The legislation ensures that Federal
prosecutors are able to punish those who injure or kill unborn
children during the commission of violent Federal crimes,
whether or not the child is fortunate enough to survive the
attack and be born alive.
B. Federal Sentencing Guidelines Are Inadequate
Opponents of H.R. 503 have argued that the act is
unnecessary because current Federal sentencing guidelines
provide enhanced punishment for violent criminals who injure or
kill unborn children during the commission of their crimes. Mr.
Ronald Weich, Esq., testified to that effect before the
Subcommittee on the Constitution during the 106th Congress.\12\
This is simply not the case.
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\12\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 21, 1999 (statement of Ronald Weich,
Esq.).
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The fact is that not one of the cases cited by Mr. Weich in
his testimony held that Federal sentencing guidelines currently
authorize enhanced punishment solely because the victim was
pregnant or because an unborn child was injured or killed
during the commission of a violent crime. In two of the cases
cited by Mr. Weich, the defendants received sentence
enhancements under Sec. 2B3.1(b)(3)(A) of the United States
Sentencing Guidelines because the defendants caused ``bodily
injury'' to the victims of robberies, not because the victims
were pregnant or because their unborn children were injured or
killed.\13\ In a third case, United States v. Manuel,\14\ the
court upheld a sentence enhancement not because the victim of
the crime was pregnant, but because of the defendant's criminal
history, which included two assaults on his wife--including one
occasion when she had been pregnant.\15\
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\13\ See United States v. Winzer, No. 97-50239, 1998 WL 823235, at
*1 (9th Cir. Nov. 16, 1998) (upholding bodily injury sentence
enhancement because victim ``was knocked to the ground'' and
``experienced soreness to her right shoulder and neck and suffered a
discharge of blood''); United States v. Peoples, No. 96-10231, 1997 WL
599363, at *1 (9th Cir. Sept. 22, 1997) (upholding bodily injury
enhancement because ``the victim, an 8-month pregnant woman forced to
lie face down on the floor, suffered injuries and sought medical
attention after being struck in the back by a twenty-five pound loot
bag'').
\14\ No. 91-30232, 1993 WL 210680 (9th Cir. June 15, 1993).
\15\ See id. at *2.
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Nor did the court hold, in United States v. James,\16\ as
Mr. Weich contended, that a pregnant woman may be treated as a
``vulnerable victim'' under Sec. 3A1.1 of the United States
Sentencing Guidelines, which provides a sentence enhancement if
the defendant knew or should have known the victim was
``vulnerable'' because of ``age, physical or mental
condition.'' In that case, the court of appeals upheld a
vulnerable victim sentence enhancement for a bank robber
because he made the following statement to a pregnant bank
teller during the commission of the robbery: `` `Don't give me
any of the trackers, alarms or magnets or I'll kill you. I
notice that you are pregnant and I love children, but I will
come back and kill you and the baby.' '' \17\ The court noted
that the defendant's sentence was properly enhanced under
Sec. 3A1.1 not ``simply because [the victim] was pregnant,''
\18\ but because ``her pregnancy created a potential
vulnerability which [the defendant] acknowledged and exploited
when he expressly threatened to kill her unborn child.'' \19\
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\16\ 139 F.3d 709 (9th Cir. 1998).
\17\ Id. at 714.
\18\ Id.
\19\ Id. at 715.
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Even assuming, however, that current Federal sentencing
guidelines would permit a two-level sentence enhancement when
the victim of a violent crime is pregnant, whether under the
``bodily injury'' or ``vulnerable victim'' provisions, that
trivial increase in punishment would not reflect the
seriousness with which violent crimes against pregnant women
and unborn children should be treated. For example, if an
individual assaults a Federal official in violation of 18
U.S.C. Sec. 111, the base offense level for that offense under
the sentencing guidelines is 15, which carries a sentence of
between 18 and 24 months.\20\ If the Federal official is
pregnant and her unborn child is killed or injured as a result
of the assault, a bodily injury or vulnerable victim sentence
enhancement would result in an offense level of 17, which
carries a sentence of 24 to 30 months.\21\ The permissible
range of punishment for the assault would thus increase by only
an additional 6 months, even if the assailant intended to kill
the unborn child. This minor increase in punishment is woefully
inadequate for the offense of killing or injuring an unborn
child.
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\20\ See U.S.S.G. Sec. 2A2.2(a).
\21\ See U.S.S.G. Sec. 2A2.2(b)(A).
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In short, there does not appear to be a single published or
unpublished decision in which a Federal court has enhanced a
sentence for a violent criminal solely because the victim was
pregnant or because an unborn child was killed or injured
during the commission of the crime. And, even assuming a
trivial sentence enhancement could be imposed under current
Federal sentencing guidelines, such an enhancement would not
provide just punishment for what should be treated as a very
serious offense.
C. Filling the Existing Void: Some Recent Examples
The need for H.R. 503 is well illustrated by the case of
United States v. Robbins.\22\ In that case, Gregory Robbins, an
airman, and his wife, who was over 8 months pregnant with a
daughter they had named Jasmine, resided on Wright-Patterson
Air Force Base, Ohio, an area of exclusive Federal
jurisdiction. On September 12, 1996, Mr. Robbins wrapped his
fist in a T-shirt (to reduce the chance that he would inflict
visible bruises) and badly beat his wife ``by striking her
repeatedly in her face and abdomen with his fist.'' \23\
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\22\ 48 M.J. 745 (A.F.C.C.A. 1998). During the 106th Congress, the
Subcommittee on the Constitution heard testimony regarding the Robbins
case from Lieutenant Colonel Keith L. Roberts, Acting Chief of the Air
Force Military Justice Division. See The Unborn Victims of Violence
Act: Hearings on H.R. 2436 Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 106th Cong., July 21, 1999 (statement
of Lt. Colonel Keith L. Roberts, Acting Chief of the Air Force Military
Justice Division).
\23\ Id. at 747.
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Mrs. Robbins survived the attack with ``a severely battered
eye, a broken nose, and a ruptured uterus.'' \24\ She was taken
to the emergency room, but medical personnel could not detect
the baby's heartbeat.\25\ Doctors performed an emergency
surgery on Mrs. Robbins and found
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\24\ Id.
\25\ See id.

Jasmine laying sideways, dead, in [Mrs. Robbins']
abdominal cavity. As a result of [Mr. Robbins']
repeated blows rupturing [Mrs. Robbins'] uterus, the
placenta was torn from the inner uterine wall, which
expelled Jasmine into [Mrs. Robbins'] abdominal
cavity.\26\
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\26\ Id.

Air Force prosecutors recognized that ``[f]ederal homicide
statutes reach only the killing of a born human being,'' \27\
and that Congress ``has not spoken with regard to the
protection of an unborn person.'' \28\ As a result, the
prosecutors attempted to prosecute Mr. Robbins for Jasmine's
death under Ohio's fetal homicide law, using Article 134 of the
Uniform Code of Military Justice.\29\ Article 134
``incorporates by reference all Federal criminal statutes and
those state laws made Federal law via the [Assimilated Crimes
Act, 18 U.S.C. Sec. 13].'' \30\
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\27\ Id. at 752.
\28\ Id.
\29\ See id. at 748.
\30\ Id.
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Mr. Robbins pleaded guilty to involuntary manslaughter for
Jasmine's death, and the military judge sentenced him to
confinement for 8 years, a dishonorable discharge, and a
reduction to the lowest enlisted grade. If, however, Robbins
had committed the act in a State which did not have a fetal
homicide law, he would have received no additional punishment
for killing baby Jasmine. Indeed, had Mr. Robbins battered his
wife in a State that had no fetal homicide law, he could have
been charged with only battery for beating his 8-months-
pregnant wife and killing their unborn child. H.R. 503 would
correct this deficiency and ensure that all of those who, like
Robbins, commit violent crimes against pregnant women and are
subject to Federal prosecution receive just and adequate
punishment for injuries inflicted upon unborn children.
There have been numerous other recent examples of violent
Federal crimes that resulted in the death of unborn children.
On April 19, 1995, Carrie Lenz, a Drug Enforcement Agency
employee, was showing coworkers ultrasound pictures of her
unborn child at 6 months when the Murrah Federal Building in
Oklahoma City was destroyed by a bomb. Just the day before the
horrific bombing, she and her husband Michael Lenz, who
testified before the Constitution Subcommittee during the 106th
Congress, learned by ultrasound that they were having a boy and
named him Michael James Lenz III.\31\ Under current Federal
law, those responsible for the bombing were not subject to any
additional punishment for the death of the Lenz's unborn
child.\32\
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\31\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong., July 21, 1999 (statement of Michael Lenz). See
also Karen Abbott & Lynn Bartels, Tears Reflect the Horror of Loss,
Nichols Courtroom in Shock at Wrenching, Desolate Tales as Jurors Begin
Penalty Phase, Rocky Mountain News, Dec. 30, 1997, at 5A.
\32\ At the conclusion of his testimony before the Subcommittee on
the Constitution, Mr. Lenz added that ``the official death toll for the
Murrah Bombing remains at 168. In addition to Carrie, there were two
other expecting mothers in the building that day that died. Three
babies. . . . [I]n my mind 171 people lost their lives that day, and
three `Daddies to be' became widowers.'' See Lenz Statement, supra note
31.
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Ruth Croston was 5 months pregnant when she was shot on
April 21, 1998, by her estranged husband Reginald Anthony
Falice as she sat in her car at a Charlotte, North Carolina
intersection.\33\ She and her unborn daughter died after being
shot at least five times.\34\ Falice was prosecuted and
convicted of interstate domestic violence and using a firearm
in the commission of a violent crime.\35\ There was no criminal
charge for the murder of the unborn baby girl.\36\ Ms.
Croston's brother, William Croston, testified before the
Subcommittee on the Constitution on March 15, 2001, regarding
the tragic death of his sister and the failure of Federal law
to recognize the death of his unborn niece.\37\
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\33\ See Georgia man convicted in slaying of estranged, pregnant
wife, Associated Press, July 14, 1999.
\34\ See id.
\35\ See id.
\36\ See id.
\37\ See The Unborn Victims of Violence Act of 2001: Hearings on
H.R. 503 Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 107th Cong., March 15, 2001 (statement of William
Croston).
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Monica Smith, a pregnant secretary, and her unborn child
were killed in the World Trade Center bombing in New York on
February 26, 1993.\38\ Jurors at one trial were told about the
harm done to Ms. Smith's unborn child,\39\ but no additional
punishment may be imposed under Federal law for the death of
that child.
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\38\ See Jeanne King, Pictures of N.Y. bombing stir emotional
response from jury, Houston Chronicle, Aug. 8, 1997, at 26.
\39\ See id.
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On January 1, 1999, Deanna Mitts, who was 8 months
pregnant, returned home with her 3 year old daughter, Kayla,
after celebrating New Year's Eve with her parents. Shortly
after entering her Connellsville, Pennsylvania apartment, she,
Kayla and her unborn child were killed in an explosion from a
bomb.\40\ Joseph Minard, the presumed father of the child, was
arrested almost a year later for the murder of Deanna and Kayla
and is currently awaiting trial in Federal court. Even if
convicted, however, he will receive no punishment for killing
the unborn child.\41\
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\40\ See Lawrence Walsh, Bombing Shocks Small Town Blast That
Killed Mother, Pittsburgh Post-Gazette, May 2, 1999, at B1.
\41\ See id.
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On December 3, 1997, Tammy Lynn Baker was near term with
her unborn child when a bomb exploded outside her apartment
killing her and her unborn child.\42\ Almost 3 years later, the
unborn child's father, Coleman Johnson, was arrested on Federal
explosives charges for the death of Ms. Baker and is awaiting
trial. Even if he is convicted, he will receive no additional
punishment for killing the unborn child.
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\42\ See Dominic Perella, Bombings instill fear in small town:
Suspicion of serial blasts complicates life in Louisa, Va., Detroit
News, Dec. 27, 1998, at A2.
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D. H.R. 503: The Unborn Victims of Violence Act
H.R. 503 fills this gap in Federal law by providing that an
individual who injures or kills an unborn child during the
commission of one of over sixty Federal crimes will be guilty
of a separate offense. The punishment for that separate offense
is the same as the punishment provided under Federal law for
that conduct had the same injury or death resulted to the
unborn child's mother. An offense under H.R. 503 does not
require proof that the defendant knew or should have known that
the victim was pregnant, or that the defendant intended to
cause the death or injury of the unborn child. If, however, the
defendant committed the predicate offense with the intent to
kill the unborn child, the punishment for the separate offense
shall be the same as that provided under Federal law for
intentionally killing or attempting to kill a human being.
For example, if an individual assaults a Member of Congress
in violation of 18 U.S.C. 111, and as a result of that assault
kills the Congresswoman's unborn child, the perpetrator may be
punished for either second-degree murder, voluntary
manslaughter, or involuntary manslaughter for killing the
unborn child (depending upon the circumstances surrounding the
assault)--the same punishment the individual would have
received had the Congresswoman died as a result of the
assault.\43\ If the prosecution proves that the defendant
assaulted the Congresswoman with the intent to kill the unborn
child, the perpetrator may be prosecuted for first or second
degree murder or voluntary manslaughter if the unborn child
dies, or attempted murder or manslaughter if the child survives
the assault.
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\43\ Under the Federal homicide statutes, second-degree murder
requires proof of ``(1) the physical element of unlawfully causing the
death of another, and (2) the mental element of malice, satisfied
either by an intent to kill, an intent to cause serious bodily injury,
or the existence of a depraved heart.'' United States v. Browner, 889
F.2d 549, 552 (5th Cir. 1989). Voluntary manslaughter also requires
proof of an unlawful and malicious killing of another, but the offense
``is deemed to be without malice because it occurs in what the courts
called `the heat of passion.' '' Id. Involuntary manslaughter is
distinguished from both murder and voluntary manslaughter by an absence
of malice, and that absence ``arises not because of provocation induced
passion, but rather because the offender's mental state is not
sufficiently culpable to meet the traditional malice requirements.''
Id. at 553. With involuntary manslaughter, ``the requisite mental state
is reduced to `gross' or `criminal' negligence, a culpability that is
far more serious than ordinary tort negligence but still falls short of
that most extreme recklessness and wantonness required for `depraved
heart' malice.'' Id.
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H.R. 503 specifically exempts ``conduct for which the
consent of the pregnant woman has been obtained or for which
such consent is implied by law.'' The bill also exempts conduct
related to medical treatment of the pregnant woman or her
unborn child, or conduct of the pregnant woman with respect to
her unborn child. The bill further provides that the death
penalty shall not be imposed.
By enacting H.R. 503, Congress will have spoken with regard
to the protection of unborn children, thereby ensuring that
those who commit violent Federal crimes against pregnant women
receive additional punishment for killing or injuring an unborn
child.

II. Constitutional Issues

A. Mens Rea Element
Contrary to assertions made by those opposed to providing
protection from violence to unborn children,\44\ H.R. 503 does
not permit the prosecution of those who act without criminal
intent. Instead, H.R. 503 operates in a manner consistent with
generally-accepted mens rea principles of criminal law.
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\44\ See, e.g. Memorandum of American Civil Liberties Union,
Washington National Office, to Interested Persons 2 (March 14, 2001)
(claiming that conviction for an offense under H.R. 503 does not
require proof of ``a mens rea (or criminal intent) requirement'');
Letter from Jon P. Jennings, Acting Assistant Attorney General, United
States Department of Justice, to Chairman Henry Hyde, Committee on the
Judiciary, United States House of Representatives 2 (Sept. 9, 1999)
(characterizing H.R. 2436 as ``mak[ing] a potentially dramatic increase
in penalty turn on an element for which liability is strict''); Press
Release of American Civil Liberties Union, Washington National Office 2
(July 21, 1999) (stating that ``H.R. 2436 Lacks a Necessary Mens Rea
Requirement'').
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As a general rule, H.R. 503 provides that when one commits
a violent crime against a pregnant woman, with criminal intent,
and thereby injures or kills the victim's unborn child, the
perpetrator is guilty of an additional offense, the punishment
for which is the same as the punishment the defendant would
have received had that same injury or death occurred to the
unborn child's mother. In accordance with the well-established
criminal law doctrine known as ``transferred intent,'' the
criminal intent directed toward the mother ``transfers'' to the
unborn child, and the criminal is liable for the injury or
death of the unborn child just as he would have been liable had
a born person been injured or killed.
The transferred intent doctrine was recognized in England
as early as 1576 in the case of Regina v. Saunders.\45\ In that
case, the court stated that
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\45\ 2 Plowd. 473, 75 Eng. Rep. 706 (1576).

it is every man's business to foresee what wrong or
mischief may happen from that which he does with an
ill-intention, and it shall be no excuse for him to say
that he intended to kill another, and not the person
killed. . . . For if a man of malice prepense shoots an
arrow at another with an intent to kill him, and a
person to whom he bore no malice is killed by it, this
shall be murder in him, for when he shot the arrow he
intended to kill, and inasmuch as he directed his
instrument of death at one, and thereby has killed
another, it shall be the same offense in him as if he
had killed the person he aimed at, . . . so the end of
the act, viz. the killing of another shall be in the
same degree, and therefore it shall be murder, and not
homicide only.\46\
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\46\ United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980)
(quoting Regina v. Saunders, 2 Plowd. 473, 474a, 75 Eng. Rep. 706, 708
(1576)).

The transferred intent doctrine was adopted by American
courts during the early days of the Republic \47\ and is now
black letter law. One prominent criminal law commentator
describes the modern formulation of the doctrine in this
manner:
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\47\ See id.

[W]hen one person (A) acts (or omits to act) with
intent to harm another person (B), but because of bad
aim he instead harms a third person (C) whom he did not
intend to harm, the law considers him (as it ought)
just as guilty as if he had actually harmed the
intended victim.\48\
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\48\ Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 284 (2d
ed. 1986).

In such situations, ``A's intent to harm B will be
transferred to C.'' \49\ Therefore,
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\49\ Id.

where A aims at B with a murderous intent to kill, but
because of a bad aim he hits and kills C, A is
uniformly held guilty of the murder of C. And if A aims
at B with a first-degree-murder state of mind, he
commits first degree murder as to C, by the majority
view. So too, where A aims at B with intent to injure B
but missing B hits and injures C, A is guilty of
battery of C.\50\
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\50\ Id. at 283.

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

Under the common-law doctrine of transferred intent, a
defendant who intends to kill one person but instead
kills a bystander, is deemed the author of whatever
kind of homicide would have been committed had he
killed the intended victim. If, as to the intended
victim, the homicide would have constituted murder, the
defendant is guilty of murder as to the actual
bystander who was the actual victim. Similarly, if the
homicide would have constituted voluntary manslaughter
as to the intended victim, the defendant is guilty of
voluntary manslaughter as to the bystander who was the
actual victim; and if the homicide, as to the intended
victim, would have been justifiable, as in the case of
self-defense, the defendant is deemed the author of a
justifiable homicide as to the bystander.\51\
---------------------------------------------------------------------------
\51\ 2 Wharton's Criminal Law 291-94 (Charles E. Torcia ed., 15th
ed. 1994).

H.R. 503 operates on these basic and well-settled
principles. It provides that when one commits a violent crime
against a pregnant woman, and thereby injures or kills the
victim's unborn child, the unlawful intent toward the mother
transfers to the unborn child, and the perpetrator is guilty of
an additional offense of the same level that would have
resulted had the same injury or death occurred to the unborn
child's mother.\52\ It is not necessary for the prosecution to
prove that the defendant knew or should have known that the
victim was pregnant, or that the defendant intended to kill or
injure the unborn child.\53\
---------------------------------------------------------------------------
\52\ H.R. 503 thus permits prosecution of the defendant for the
offense against the unintended victim (i.e., the unborn child), even
though the defendant succeeded in committing the crime against the
intended victim (i.e., the pregnant woman). The defendant's intent with
respect to the pregnant woman suffices for both offenses. This is the
better view of the transferred intent doctrine. See, e.g., State v.
Worlock, 569 A.2d 1314, 1325 (N.J. 1990) (``reject[ing] defendant's
argument that the successful killing of the intended victim prevents
the `transfer' of that intent to an unintended victim'' because ``the
purpose of deterrence is better served by holding that defendant
responsible for the knowing or purposeful murder of the unintended as
well as the intended victim''); State v. Hinton, 630 A.2d 593, 598-99
(Conn. 1993) (same). Indeed, one Federal court has held that ``[t]here
are even stronger grounds for applying the principle where the intended
victim is killed by the same act that kills the unintended victim.''
United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980). The
Committee rejects the view, followed by some courts, that the
defendant's criminal intent does not transfer to the unintended victim
if the crime was actually committed against the intended victim. See,
e.g., Ford v. State, 625 A.2d 984, 997-98 (Md. 1993); but see Poe v.
State, 671 A.2d 501, 530 (Md. 1996) (applying transferred intent
doctrine where A shot at and hit B, and bullet went through B and
killed C, to permit prosecution of defendant for attempted murder of B
and murder of C; court refused to follow Ford ``because there is a
death and the doctrine is necessary to impose criminal liability for
the murder of the unintended victim in addition to the attempted murder
of the intended victim'').
\53\ The felony murder rule operates in similar manner, holding the
perpetrator of a felony liable for death that results during the
commission of the felony, even where that particular felon may not have
intended or even participated directly in the killing. The relevant
state of mind is the state of mind as to the commission of the
underlying felony, not the killing that occurs subsequently. See United
States v. Nichols, 169 F.3d 1255 (10th Cir. 1999); United States v.
Tham, 118 F.3d 1501 (11th Cir. 1997); Nesbitt v. Hopkins, 907 F. Supp.
1317 (D. Neb. 1995).
---------------------------------------------------------------------------
H.R. 503 contains one exception to this general rule. In
cases in which the prosecution proves that an individual
committed one of the predicate violent crimes against a
pregnant woman, with the intent to kill the unborn child, that
individual shall be punished as provided under Federal law for
intentionally killing or attempting to kill a human being. The
bill thus ensures that those who engage in violent Federal
crimes against pregnant women, with the intent to kill their
unborn children, are subject to more severe punishment than
those who do not act with the intent to kill the unborn child.
In short, H.R. 503 does not lack a criminal intent
requirement.\54\ In situations in which the defendant kills or
injures an unborn child during the commission of a Federal
crime of violence against a pregnant woman, the mens rea
requirement is satisfied because the criminal intent directed
toward the mother transfers to the unborn child in accordance
with traditional common law principles. If the defendant
commits that violent crime against the pregnant woman with the
intent to kill the unborn child, that intent itself satisfies
the mens rea requirement needed to impose criminal liability
upon the defendant for killing or injuring the unborn child.
---------------------------------------------------------------------------
\54\ The bill does not, therefore, conflict with the notion that
criminal statutes lacking a mens rea element are disfavored. See
Liparota v. United States, 471 U.S. 419, 426 (1985).
---------------------------------------------------------------------------
B. Constitutional Authority for H.R. 503
The next question that arises regarding the
constitutionality of H.R. 503 is whether Congress has the
constitutional authority to enact such legislation. That
question must be answered in the affirmative because the bill
does not extend Congress' reach to prohibit any conduct that
does not currently violate Federal law.\55\
---------------------------------------------------------------------------
\55\ See The Unborn Victims of Violence Act of 2001: Hearings on
H.R. 503 Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 107th Cong., March 15, 2001 (statement of Professor
Richard Myers, Ave Maria Law School); The Unborn Victims of Violence
Act: Hearings on H.R. 2436 Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 106th Cong., July 21, 1999 (statement
of Professor Gerard V. Bradley, Notre Dame Law School).
---------------------------------------------------------------------------
Instead, H.R. 503 merely provides an additional offense and
punishment for those who injure or kill an unborn child during
the commission of one of the predicate Federal offenses. The
bill thus relies upon the predicate crimes for its
constitutional hook.\56\ Therefore, (with one qualification,
discussed below) if there is any question regarding the
constitutionality of the act's reach, that question generally
pertains to the constitutionality of the predicate offense, not
H.R. 503.\57\
---------------------------------------------------------------------------
\56\ See id.
\57\ See id.; see also The Unborn Victims of Violence Act: Hearings
on H.R. 2436 Before the Subcomm. on the Constitution of the House Comm.
on the Judiciary, 106th Cong., July 21, 1999 (statement of Professor
Hadley Arkes, Ney Professor of Jurisprudence and American Institutions,
Amherst College) (same).
---------------------------------------------------------------------------
The one qualification to this general conclusion relates to
situations in which Federal jurisdiction is based upon the
identity of the particular victim, such as the President,
cabinet members, Members of Congress, and other government
officials. In those situations, it may be asked whether
constitutional authority for punishing offenses against such
individuals extends to offenses against the unborn children of
those victims. And the answer to that question begins with the
recognition that it is only the discharge of Federal functions,
not the identity of the persons as such, which grounds Federal
jurisdiction in such cases.\58\
---------------------------------------------------------------------------
\58\ See Statement of Professor Richard Myers, supra; Statement of
Professor Gerard V. Bradley, supra.
---------------------------------------------------------------------------
In other words, protection of Federal officers and jurors
is justified by the national interest in protecting the
functions that Federal officers and jurors perform. And those
functions are threatened by assaults upon the person of those
officers and jurors, as well as by threats to them and to their
families.\59\ Thus, it is clearly constitutional to extend
Federal protection to the entire families of Federal officers
and jurors in order to ensure that nothing distracts them or
causes them to neglect their duties. That is, it is within
Congress' power to determine that there is a distinct,
punishable harm to the discharge of federally imposed duties
where the unborn child or any other immediate family member of
a protectable person is harmed or destroyed.\60\ And that
appears to be the reasoning behind 18 U.S.C. Sec. 115, which
prohibits assaulting, murdering, or kidnapping members of the
immediate family of United States officials (including Members
of Congress) and law enforcement officers.
---------------------------------------------------------------------------
\59\ See id.
\60\ See id.
---------------------------------------------------------------------------
C. H.R. 503 and Abortion Rights
H.R. 503 does not affect or in any way interfere with a
woman's right to abort a pregnancy. Indeed, the bill clearly
states that it does not apply to ``conduct relating to an
abortion for which the consent of the pregnant woman has been
obtained or for which such consent is implied by law.''
Similarly, the bill also clearly states that it does not permit
prosecution ``of any woman with respect to her unborn child.''
Nor is there anything in Roe v. Wade that prevents Congress
from recognizing the lives of unborn children outside the
parameters of the right to abortion marked off in that
case.\61\ Indeed, in recognizing a woman's right to terminate
her pregnancy, the Roe court explicitly stated that it was not
resolving ``the difficult question of when life begins,'' \62\
because ``the judiciary, at this point in the development of
man's knowledge, is not in a position to speculate as to the
answer.'' \63\ What the Court held was that the government
could not ``override the rights of the pregnant woman'' to
choose to terminate her pregnancy ``by adopting one theory'' of
when life begins.\64\ In other words, the Court concluded that
unborn children could not be considered ``persons in the whole
sense,'' \65\ an opinion that is consistent with recognizing
unborn children as persons for purposes other than abortion,
such as inheritance and tort injury, purposes which the Roe
court itself recognized as legitimate.\66\
---------------------------------------------------------------------------
\61\ See Statement of Professor Richard Myers, supra; Statement of
Professor Gerard V. Bradley, supra; see also McCavitt, supra note 11,
at 639 (concluding that Roe ``should not apply to non-consensual acts
by third parties and should not be used as a bar to judicial or
statutory sanctions for criminal acts of third parties'').
\62\ 410 U.S. at 159.
\63\ Id.
\64\ See id. at 162.
\65\ Id.
\66\ See id.
---------------------------------------------------------------------------
The Supreme Court explicitly confirmed this understanding
of Roe in Webster v. Reproductive Health Servs.\67\ In that
case, the State of Missouri had enacted a statute which stated
that the ``[t]he life of each human being begins at
conception,'' and that ``unborn children have protectable
interests in life, health, and well-being.'' \68\ The United
States Court of Appeals for the Eighth Circuit struck down the
law, holding that Missouri had ``impermissibl[y]'' adopted a
``theory of when life begins.'' \69\ The Supreme Court reversed
this portion of the Eighth Circuit's decision, however, stating
that the Court's own decisions mean ``only that a State could
not `justify' an abortion regulation otherwise invalid under
Roe v. Wade on the ground that it embodied the state's view
about when life begins.'' \70\
---------------------------------------------------------------------------
\67\ 492 U.S. 490 (1989).
\68\ Id. at 501.
\69\ Id. at 503.
\70\ Id. at 506 (emphasis added).
---------------------------------------------------------------------------
Since H.R. 503 in no way interferes with or restricts the
abortion right articulated in Roe, the act is clearly
constitutional. Congress is perfectly free, as was the State of
Missouri, to enforce its conception of human life outside of
the parameters of Roe.
Courts addressing the constitutionality of state laws that
punish killing or injuring unborn children have recognized the
lack of merit in the argument that such laws violate Roe v.
Wade, and as a result have consistently upheld those laws in
the face of constitutional challenges. In State v. Coleman,\71\
for example, the Ohio Court of Appeals held that ``Roe protects
a woman's constitutional right. It does not protect a third-
party's unilateral destruction of a fetus.'' \72\ In State v.
Holcomb,\73\ the Missouri Court of Appeals stated that ``[t]he
fact that a mother of a pre-born child may have been granted
certain legal rights to terminate the pregnancy does not
preclude the prosecution of a third party for murder in the
case of a killing of a child not consented to by the mother.''
\74\ Similarly, in State v. Merrill,\75\ the Minnesota Supreme
Court held that ``Roe v. Wade protects the woman's right of
choice; it does not protect, much less confer on an assailant,
a third-party unilateral right to destroy the fetus.'' \76\
---------------------------------------------------------------------------
\71\ 705 N.E.2d 419 (Ohio Ct. App. 1997).
\72\ Id. at 421.
\73\ 956 S.W.2d 286 (Mo. Ct. App. 1997).
\74\ Id. at 291. See also People v. Ford, 581 N.E.2d 1189, 1199
(Ill. App. Ct. 1991) (``Clearly, a pregnant woman who chooses to
terminate her pregnancy and the defendant who assaults a pregnant
woman, causing the death of her fetus, are not similarly situated.'')
\75\ 450 N.W.2d 318 (Minn. 1990).
\76\ See id. at 322.
---------------------------------------------------------------------------
In People v. Davis,\77\ the California Supreme Court held
that ``Roe v. Wade principles are inapplicable to a statute . .
. that criminalizes the killing of a fetus without the mother's
consent.'' \78\ The Eleventh Circuit echoed that sentiment in
Smith v. Newsome,\79\ holding that Roe v. Wade was ``immaterial
. . . to whether a state can prohibit the destruction of a
fetus'' by a third-party.\80\ Legal scholars have reached
similar conclusions.\81\
---------------------------------------------------------------------------
\77\ 872 P.2d 591 (Cal. 1994).
\78\ Id. at 597.
\79\ 815 F.2d 1386 (11th Cir. 1987).
\80\ See id. at 1388.
\81\ See, e.g., Statement of Professor Richard Myers, supra;
Statement of Professor Gerard V. Bradley, supra; Jeffrey A. Parness,
Crimes Against the Unborn: Protecting and Respecting the Potentiality
of Human Life, 22 Harv. J. on Legis. 97, 144 (1985) (``The Roe decision
. . . forbids the state's protection of the unborn's interests only
when these interests conflict with the constitutional rights of the
prospective parent. The Court did not rule that the unborn's interests
could not be recognized in situations where there was no conflict.'').
---------------------------------------------------------------------------
In short, H.R. 503 clearly does not violate Roe v. Wade or
its progeny. The act specifically exempts abortion-related
conduct from prosecution and the protection it affords to
unborn children does not interfere with or restrict a woman's
right to terminate her pregnancy.
D. Use of the Term ``Unborn Child''
Opponents of H.R. 503 have also argued that the use of the
term ``unborn child'' is ``designed to inflame'' and may, in
the words of those dissenting from the Judiciary Committee
report during the 106th Congress, ``result in a major collision
between the rights of the mother and the rights of'' the unborn
child. This objection is based upon an apparent lack of
knowledge of the widespread use of the term ``unborn child'' in
the decisions of the United States Supreme Court and the United
States Courts of Appeals, in State statutes and court
decisions, and even in the legal writings of abortion
advocates.
The use of the term ``unborn child'' by the Supreme Court
can be illustrated by reference to no greater authority than
Roe v. Wade,\82\ in which Justice Blackman used the term
``unborn children'' as synonymous with ``fetuses.'' Justice
Blackman also used the term ``unborn child'' in Doe v.
Bolton,\83\ the companion case to Roe in which the Court struck
down Georgia's abortion statute.
---------------------------------------------------------------------------
\82\ 410 U.S. 113 (1973).
\83\ 410 U.S. 179 (1973).
---------------------------------------------------------------------------
The Court has also used the term ``unborn child'' outside
of the abortion context. In Burns v. Alcala,\84\ for example,
the Court held that ``unborn children'' are not ``dependent
children'' for purposes of obtaining aid under the Aid to
Families with Dependent Children (AFDC) program. Not only did
Justice Powell use the term ``unborn child'' in the majority
opinion in Burns, but Justice Thurgood Marshall dissented in
that case and argued that ``unborn children'' should be covered
as ``dependent children'' under AFDC. Surely the opponents of
H.R. 503 would not seriously contend that Justice Marshall--a
staunch defender of abortion rights--was putting abortion
rights at risk by arguing that ``unborn children'' should be
recognized under a Federal statute.
---------------------------------------------------------------------------
\84\ 420 U.S. 575 (1975).
---------------------------------------------------------------------------
There are numerous decisions that use the term ``unborn
child'' as synonymous with ``fetus,'' including City of Akron
v. Akron Center for Reproductive Health,\85\ Webster v.
Reproductive Health Services,\86\ and International Union v.
Johnson Controls.\87\ Additionally, there are numerous
decisions by the United States Courts of Appeals using the term
``unborn child.'' For a few examples, see Alexander v.
Whitman,\88\ Jane L. v. Bangerter,\89\ and Smith v.
Newsome.\90\
---------------------------------------------------------------------------
\85\ 462 U.S. 416 (1983).
\86\ 492 U.S. 490 (1989).
\87\ 499 U.S. 187 (1991).
\88\ 114 F.3d 1392 (3d Cir. 1997).
\89\ 61 F.3d 1493 (10th Cir. 1995).
\90\ 815 F.2d 1386 (11th Cir. 1987).
---------------------------------------------------------------------------
There are also at least nineteen State criminal statutes
similar to H.R. 503 that currently use the term ``unborn
child'' to refer to a fetus.\91\ Statutes such as these have
been consistently upheld by the courts in the face of
constitutional challenges.\92\
---------------------------------------------------------------------------
\91\ See, e.g., Ariz. Rev. Stat. Sec. 13-1103(A)(5); Ark. Code Ann.
Sec. 5-1-102(13)(B)(i)(a); Fla. Stat. Ann. Sec. 782.09; Ga. Code Ann.
Sec. Sec. 16-5-80, 40-6-393.1, 52-7-12.3; 720 Ill. Comp. Stat. Ann.
Sec. Sec. 5/9-1.2, 5/9-2.1, 5/0-3.2; La. Rev. Stat. Ann.
Sec. Sec. 14:32.5-14-32.8; Mich. Stat. Ann. Sec. 28.555; Minn. Stat.
Ann. Sec. Sec. 609.2661-609.2665, 609.267-609.2672; Miss. Code Ann.
Sec. 97-3-37; Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020; Nev.
Rev. Stat. 200.210; N.D. Cent. Code Sec. Sec. 12.1-17.1-05, 12.1-17-06;
Okla. Stat. Ann. tit. 21, Sec. 713; Pa. Cons. Stat. Ann.
Sec. Sec. 2601-2609; R.I. Gen. Laws Sec. 11-22-5; S.D. Codified Laws
Ann. Sec. Sec. 22-16-1, 22-16-1.1, 22-16-20; Utah Code Ann. Sec. 76-5-
201; Wash. Rev. Code Ann. Sec. 9A.32.060; Wis. Stat. Ann.
Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06,
940.08, 940.09, 940.10.
\92\ See, e.g., State v. Coleman, 705 N.E.2d 419, 421 (Ohio Ct.
App. 1997); State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990); People
v. Davis, 872 P.2d 591, 597 (Cal. 1994); and Smith v. Newsome, 815 F.2d
1386, 1388 (11th Cir. 1987).
---------------------------------------------------------------------------
Even feminist abortion rights advocates such as Catharine
MacKinnon have used the term ``unborn child'' as synonymous
with ``fetus.'' In an article published in the Yale Law Journal
entitled Reflections on Sex Equality Under the Law,\93\
Professor MacKinnon conceded that a ``fetus is a human form of
life'' that ``is alive,'' \94\ and opined that ``[m]any woman
have abortions as a desperate act of love for their unborn
children.'' \95\
---------------------------------------------------------------------------
\93\ 100 Yale L.J. 1281 (1991).
\94\ Id. at 1316.
\95\ Id. at 1318.
---------------------------------------------------------------------------
It is clear, then, that objections to the use of the term
``unborn child'' in H.R. 503 are without merit. The term
``unborn child'' has been widely used and accepted by judges,
legislators and legal scholars, and has withstood challenges in
the courts.

IV. Conclusion

H.R. 503 is prudent and necessary legislation that is
carefully crafted to address the harms done when violent crimes
are committed against pregnant women and their unborn children.
The legislation remedies the defects of existing Federal law by
rejecting the antiquated and obsolete common law ``born alive''
rule and ensuring just punishment for those who commit these
heinous crimes of violence. Moreover, H.R. 503 relies on the
well-established doctrine of transferred intent in supplying
the mental element necessary for prosecution, and it carefully
excludes from its purview those acts committed by the mother or
a third party that are otherwise protected by Roe v. Wade and
its progeny. By recognizing the unique harms done to women and
unborn children, and by mending the insufficiencies of current
Federal law, H.R. 503 serves vital national interests by
extending the criminal law's protections for all human life.

Hearings

The Committee's Subcommittee on the Constitution held a
hearing on H.R. 503 on March 15, 2001. Testimony was received
from the following witnesses: William Croston III, Charlotte,
North Carolina; Professor Richard S. Myers, Professor of Law,
Ave Maria School of Law, Ann Arbor, Michigan; Juley Fulcher,
Director of Public Policy, National Coalition Against Domestic
Violence; Robert J. Cynkar, Attorney at Law, Cooper, Carvin &
Rosenthal.

Committee Consideration

On March 21, 2001, the Subcommittee on the Constitution met
in open session and ordered favorably reported the bill H.R.
503, without amendment, by a voice vote, a quorum being
present. On March 28, 2001, the Committee met in open session
and ordered favorably reported the bill, H.R. 503, without
amendment, by a recorded vote of 15 to 9, a quorum being
present.

Vote of the Committee

1. An amendment in the nature of a substitute was offered
by Ms. Lofgren and Mr. Conyers to provide additional
punishment, up to a life sentence, for ``interruption of the
normal course of pregnancy resulting in prenatal injury
(including termination of the pregnancy).'' The amendment was
defeated by rollcall vote of 13 to 20.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (Texas)............................................... .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Graham...................................................... .............. X ..............
Mr. Bachus...................................................... .............. X ..............
Mr. Scarborough................................................. .............. X ..............
Mr. Hostettler.................................................. .............. X ..............
Mr. Green....................................................... .............. X ..............
Mr. Keller...................................................... .............. X ..............
Mr. Issa........................................................ .............. X ..............
Ms. Hart........................................................ .............. X ..............
Mr. Flake....................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... X .............. ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Schiff...................................................... X .............. ..............
Mr. Sensenbrenner, Chairman..................................... .............. X ..............
-----------------------------------------------
Total....................................................... 13 20 ..............
----------------------------------------------------------------------------------------------------------------

2. An amendment was offered by Mr. Conyers and Ms. Baldwin
to provide that the Unborn Victims of Violence Act of 2001
would ``only take effect in fiscal years for which Congress
appropriates 100 percent of the amounts authorized for programs
established under the Violence Against Women Act.'' The
amendment was defeated by a rollcall vote of 11 to 19.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (Texas)............................................... .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Graham...................................................... .............. X ..............
Mr. Bachus...................................................... .............. X ..............
Mr. Scarborough................................................. .............. X ..............
Mr. Hostettler.................................................. .............. X ..............
Mr. Green....................................................... .............. X ..............
Mr. Keller...................................................... .............. X ..............
Mr. Issa........................................................ .............. X ..............
Ms. Hart........................................................ .............. X ..............
Mr. Flake....................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Schiff...................................................... X .............. ..............
Mr. Sensenbrenner, Chairman..................................... .............. X ..............
-----------------------------------------------
Total....................................................... 11 19 ..............
----------------------------------------------------------------------------------------------------------------

3. An amendment in the nature of a substitute was offered
by Mr. Scott to require the United States Sentencing Commission
to ``review and amend the Federal sentencing guidelines and the
policy statements of the Commission, as appropriate, to provide
an appropriate sentencing enhancement when a crime is committed
in violation of title 18 of the United States Code causing
bodily injury or death to a pregnant woman.'' The amendment was
defeated by a voice vote.
4. Final Passage. The motion to report favorably the bill
H.R. 503 was adopted. The motion was agreed to by a rollcall
vote of 15 to 9.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ .............. .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (Texas)............................................... X .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. .............. .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Graham...................................................... X .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. X .............. ..............
Mr. Hostettler.................................................. X .............. ..............
Mr. Green....................................................... X .............. ..............
Mr. Keller...................................................... .............. .............. ..............
Mr. Issa........................................................ X .............. ..............
Ms. Hart........................................................ X .............. ..............
Mr. Flake....................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. X ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. X ..............
Mr. Scott....................................................... .............. X ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. X ..............
Mr. Delahunt.................................................... .............. X ..............
Mr. Wexler...................................................... .............. X ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... .............. X ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Sensenbrenner, Chairman..................................... X .............. ..............
-----------------------------------------------
Total....................................................... 15 9 ..............
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

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

Performance Goals and Objectives

H.R. 503 does not authorize funding. Therefore, clause 3(c)
of House Rules XIII is inapplicable.

New Budget Authority and Tax Expenditures

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

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 503, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, March 30, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 503, the Unborn
Victims of Violence Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.

Enclosure

cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 503--Unborn Victims of Violence Act of 2001.
CBO estimates that implementing H.R. 503 would not result
in any significant cost to the federal government. Because
enactment of H.R. 503 could affect direct spending and
receipts, pay-as-you-go procedures would apply to the bill.
However, CBO estimates that any impact on direct spending and
receipts would not be significant. H.R. 503 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of state, local, or tribal governments.
H.R. 503 would establish a new federal crime for the injury
or death of an unborn child that results from certain offenses
committed against the mother. Violators would be subject to
imprisonment and fines. As a result, the federal government
would be able to pursue cases that it otherwise would not be
able to prosecute. CBO expects that any increase in federal
costs for law enforcement, court proceedings, or prison
operations would not be significant, however, because of the
small number of cases likely to be involved. Any such
additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 503 could
be subject to criminal fines, the federal government might
collect additional fines if the bill is enacted. Collections of
such fines are recorded in the budget as governmental receipts
(revenues), which are deposited in the Crime Victims Fund and
spent in subsequent years. CBO expects that any additional
receipts and direct spending would be negligible.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 18 of the
Constitution.

Section-by-Section Analysis and Discussion

Section 1. Short Title. This section provides that the
title of the act is the Unborn Victims of Violence Act of 2001.
Section 2. Protection of Unborn Children. Section 2(a)
amends title 18 of the United States Code by inserting
``Section 1841'' and each of the following subsections after
chapter 90A of that title. These provisions provide the
substantive component of the act.
Section 1841(a)(1) provides that where one engages in
violent conduct against a pregnant woman, in violation of one
or more of the Federal criminal laws listed in subsection (b),
the perpetrator shall be guilty of a separate criminal offense
if an unborn child is killed or injured in the commission
thereof. This subsection relies on the well-established
doctrine of transferred intent in providing the mens rea
element for the crime against the unborn child. That is, the
criminal intent directed toward the unborn child's mother is
transferred to the unborn child. This subsection further
eliminates the obsolete common law born-alive rule, replacing
it with widely accepted modern jurisprudence recognizing unborn
children as victims of violent crime.
Section 1841(a)(2)(A) establishes the punishment for the
separate offense committed against the unborn child. This
subsection provides that when death or bodily injury to the
unborn child results from the commission of an offense listed
in subsection (b), the defendant shall receive the same
punishment he or she would have received under Federal law had
the same bodily injury or death resulted to the unborn child's
mother.
Section 1841(a)(2)(B) provides that an offense under this
section does not require proof that the defendant knew or
should have known that the victim of the underlying offense was
pregnant, or that the defendant intended to cause the death or
bodily injury to the unborn child.
Section 1841(a)(2)(C) provides that if the defendant
engaged in the conduct against the pregnant woman and thereby
intentionally killed or attempted to kill the unborn child, the
defendant shall be punished as provided under Federal law for
killing or attempting to kill another human being. Section
1841(a)(2)(D) states that notwithstanding any other provision
of Federal law, the death penalty shall not be imposed for an
offense under this section.
Section 1841(b) lists the various provisions of the United
States Code that serve as predicate offenses for the offense
against the unborn child. Subsection (1) lists provisions of
title 18; subsection (2) lists Section 408(e) of the Controlled
Substances Act of 1970, 21 U.S.C. 848; and subsection (3) lists
Section 202 of the Atomic Energy Act of 1954, 42 U.S.C. 2283.
If the defendant engages in the violent conduct prohibited by
these provisions, and his conduct results in death or bodily
injury to an unborn child, he is guilty of a separate offense,
as provided in Section 2(a).
Section 1841(c) prohibits the United States from
prosecuting any of the following individuals for the death or
injury of an unborn child: under subsection (1), any person who
performs a legally consensual abortion; under subsection (2),
any person who provides medical treatment to a pregnant woman
or her unborn child; and, under subsection (3), the pregnant
woman herself. These provisions ensure that this legislation
does not implicate or interfere with the right to an abortion
established by Roe v. Wade, 410 U.S. 113 (1973) and its
progeny.
Section 1841(d) defines ``unborn child'' as ``a child in
utero,'' a definition consistent with those State laws that
courts have consistently upheld. ``Child in utero'' or ``child,
who is in utero'' are, in turn, defined as ``a member of the
species homo sapiens, at any stage of development, who is
carried in the womb.''
Section 2(b) of the act is a clerical amendment, inserting
``1841'' after the item relating to chapter 90 in title 18 of
the United States Code.
Section 3. Military Justice System. This section amends the
Uniform Code of Military Justice to provide an additional
offense for injuring or killing an unborn child during the
commission of certain violent crimes punishable under the
Uniform Code of Military Justice. Pursuant to rule X of the
Rules of the House of Representatives, this section was
referred to the Committee on Armed Services, as the Committee
on the Judiciary does not have jurisdiction over this section
of the bill. For a summary of section 3, refer to the report of
the Committee on Armed Services on H.R. 503.

Changes in Existing Law Made by the Bill, as Reported

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

TITLE 18, UNITED STATES CODE

TITLE 18--CRIMES AND CRIMINAL PROCEDURE

* * * * * * *

PART I--CRIMES

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

CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

Sec.
1841. Protection of unborn children.

Sec. 1841. Protection of unborn children

(a)(1) Whoever engages in conduct that violates any of the
provisions of law listed in subsection (b) and thereby causes
the death of, or bodily injury (as defined in section 1365) to,
a child, who is in utero at the time the conduct takes place,
is guilty of a separate offense under this section.
(2)(A) Except as otherwise provided in this paragraph, the
punishment for that separate offense is the same as the
punishment provided under Federal law for that conduct had that
injury or death occurred to the unborn child's mother.
(B) An offense under this section does not require proof
that--
(i) the person engaging in the conduct had
knowledge or should have had knowledge that the victim
of the underlying offense was pregnant; or
(ii) the defendant intended to cause the death of,
or bodily injury to, the unborn child.
(C) If the person engaging in the conduct thereby
intentionally kills or attempts to kill the unborn child, that
person shall instead of being punished under subparagraph (A),
be punished as provided under sections 1111, 1112, and 1113 of
this title for intentionally killing or attempting to kill a
human being.
(D) Notwithstanding any other provision of law, the death
penalty shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a) are the
following:
(1) Sections 36, 37, 43, 111, 112, 113, 114, 115,
229, 242, 245, 247, 248, 351, 831, 844(d), (f), (h)(1),
and (i), 924(j), 930, 1111, 1112, 1113, 1114, 1116,
1118, 1119, 1120, 1121, 1153(a), 1201(a), 1203,
1365(a), 1501, 1503, 1505, 1512, 1513, 1751, 1864,
1951, 1952 (a)(1)(B), (a)(2)(B), and (a)(3)(B), 1958,
1959, 1992, 2113, 2114, 2116, 2118, 2119, 2191, 2231,
2241(a), 2245, 2261, 2261A, 2280, 2281, 2332, 2332a,
2332b, 2340A, and 2441 of this title.
(2) Section 408(e) of the Controlled Substances Act
of 1970 (21 U.S.C. 848(e)).
(3) Section 202 of the Atomic Energy Act of 1954
(42 U.S.C. 2283).
(c) Nothing in this section shall be construed to permit
the prosecution--
(1) of any person for conduct relating to an
abortion for which the consent of the pregnant woman,
or a person authorized by law to act on her behalf, has
been obtained or for which such consent is implied by
law;
(2) of any person for any medical treatment of the
pregnant woman or her unborn child; or
(3) of any woman with respect to her unborn child.
(d) As used in this section, the term ``unborn child''
means a child in utero, and the term ``child in utero'' or
``child, who is in utero'' means a member of the species homo
sapiens, at any stage of development, who is carried in the
womb.

* * * * * * *

----------

CHAPTER 47 OF TITLE 10, UNITED STATES CODE

CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE

* * * * * * *

SUBCHAPTER X--PUNITIVE ARTICLES

Sec. Art.

877. 77. Principals.

919. 119. Manslaughter.

919a. 119a. Protection of unborn children.

* * * * * * *

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

(a)(1) Any person subject to this chapter who engages in
conduct that violates any of the provisions of law listed in
subsection (b) and thereby causes the death of, or bodily
injury (as defined in section 1365 of title 18) to, a child,
who is in utero at the time the conduct takes place, is guilty
of a separate offense under this section.
(2)(A) Except as otherwise provided in this paragraph, the
punishment for that separate offense is the same as the
punishment provided under this chapter for that conduct had
that injury or death occurred to the unborn child's mother.
(B) An offense under this section does not require proof
that--
(i) the person engaging in the conduct had
knowledge or should have had knowledge that the victim
of the underlying offense was pregnant; or
(ii) the accused intended to cause the death of, or
bodily injury to, the unborn child.
(C) If the person engaging in the conduct thereby
intentionally kills or attempts to kill the unborn child, that
person shall, instead of being punished under subparagraph (A),
be punished as provided under sections 880, 918, and 919(a) of
this title (articles 80, 118, and 119(a)) for intentionally
killing or attempting to kill a human being.
(D) Notwithstanding any other provision of law, the death
penalty shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a) are
sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928
of this title (articles 118, 119(a), 119(b)(2), 120(a), 122,
124, 126, and 128).
(c) Nothing in this section shall be construed to permit
the prosecution--
(1) of any person for conduct relating to an
abortion for which the consent of the pregnant woman,
or a person authorized by law to act on her behalf, has
been obtained or for which such consent is implied by
law;
(2) of any person for any medical treatment of the
pregnant woman or her unborn child; or
(3) of any woman with respect to her unborn child.
(d) In this section, the term ``unborn child'' means a
child in utero, and the term ``child in utero'' or ``child, who
is in utero'' means a member of the species homo sapiens, at
any stage of development, who is carried in the womb.

* * * * * * *

Markup Transcript

BUSINESS MEETING

WEDNESDAY, MARCH 28, 2001

House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in Room
2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner (chairman of the committee) presiding.
Chairman Sensenbrenner. The committee will be in order. The
next item on the agenda is the adoption of H.R. 503, the Unborn
Victims of Violence Act of 2001.
[H.R. 503 follows:]

Chairman Sensenbrenner. The chair recognizes the gentleman
from Ohio, Mr. Chabot, the chairman of the Subcommittee on the
Constitution, for a motion.
Mr. Chabot. Thank you, Mr. Chairman.
The Subcommittee on the Constitution reports favorably the
Bill H.R. 503 and moves its favorable recommendation to the
full House.
Chairman Sensenbrenner. Without objection, H.R. 503 will be
considered as read and open for amendment at any point. The
chair recognizes the gentleman from Ohio for 5 minutes to
strike the last word.
Mr. Chabot. Thank you, Mr. Chairman. I would like to
briefly address several legal issues that have been raised
regarding the Unborn Victims of Violence Act.
First, questions have been raised regarding Congress's
constitutional authority to enact this legislation. The
challenge to the bill on this ground is completely without
merit. It is clear the Congress has such constitutional
authority because the bill will only affect conduct that is
already prohibited by Federal law.
H.R. 503 merely provides an additional offense and
punishment for those who injure or kill an unborn child during
the commission of one of the existing predicate offenses set
forth in the bill. If there is any question regarding the
constitutionality of the act's reach, that question is directed
to the constitutionality of the predicate offenses, not H.R.
503.
Opponents of H.R. 503 have also argued that the bill
somehow violates the decision of the Supreme Court in Roe v.
Wade. This argument is also without merit. To begin with, H.R.
503 simply does not apply to abortions. On Page 4 of the bill,
beginning on Line 9, prosecution is explicitly precluded ``for
any conduct relating to an abortion for which the consent of
the pregnant woman has been obtained or for which such consent
is implied by law.''
The act also does not permit prosecution of any person for
any medical treatment of the pregnant woman or her unborn child
or of the mother for any conduct with respect to her unborn
child. The act could not be more clear in exempting abortion.
Moreover, there is nothing in Roe v. Wade that prevents
Congress from giving legal recognition to the lives of unborn
children outside the parameters of the right to abortion marked
off in that case. In establishing a woman's right to terminate
her pregnancy, the Roe court explicitly stated that it was not
resolving ``the difficult question of when life begins because
the judiciary, at this point in the development of man's
knowledge, is not in a position to speculate as to the
answer.''
What the Court held was that the Government could not
override the rights of the pregnant woman to choose to
terminate her pregnancy by adopting one theory of when life
begins. Courts addressing the constitutionality of State laws
that punish killing or injuring unborn children have recognized
the lack of merit in the argument that such laws violate Roe v.
Wade, and as a result have consistently and uniformly upheld
those laws. For example, in State v. Coleman, the Ohio Court of
Appeals stated that ``Roe protects a woman's constitutional
right. It does not protect a third party's unilateral
destruction of a fetus.''
Similarly, the Minnesota Supreme Court has held that Roe v.
Wade protects the woman's right of choice, it does not protect,
much less confer on an assailant, a third-party unilateral
right to destroy the fetus.
In People v. Davis, the California Supreme Court was even
more to the point in rejecting this argument, stating that ``
Roe v. Wade principles are inapplicable to a statute that
criminalizes the killing of a fetus without the mother's
consent.''
The 11th Circuit Court echoed that sentiment in Smith v.
Newsome, holding that Roe v. Wade was immaterial to whether a
State can prohibit the destruction of a fetus by a third party.
Finally, opponents of H.R. 503 have argued that the bill
lacks the necessary mens rea requirement for a valid criminal
law, and is therefore unconstitutional. This argument ignores
the well-established doctrine of transferred intent in the
criminal law. Under H.R. 503, an individual may be guilty of an
offense against an unborn child only if he has committed an act
of violence with criminal intent upon a pregnant woman, thereby
injury or killing her unborn child.
Under the doctrine of transferred intent, the law considers
the criminal intent directed toward the pregnant woman to have
also been directed toward the unborn child. The transferred
intent doctrine was recognized in England as early as 1576 and
was adopted by American courts during the early days of the
Republic. A well-known criminal law commentator describes the
application of the doctrine to the crime of murder in language
that is remarkably similar to the language and operation of
this legislation.
Under the common law doctrine of transferred intent, a
defendant who intends to kill one person, but instead kills a
bystander, is deemed the author of whatever kind of homicide
would have been committed had he killed the intended victim.
H.R. 503 operates on these basic and well-settled
principles.
Mr. Graham deserves our thanks for his work in developing
this thoughtfully structured bill, which will help close an
unfortunate gap in the law, and I urge my colleagues to support
this important legislation.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman's time has expired.
Who seeks time on the minority side?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler is recognized for 5 minutes.
Mr. Nadler. Mr. Chairman, I oppose the bill before us
today, H.R. 503, the Unborn Victims of Violence Act, because it
is unnecessary, misguided, and facially unconstitutional. The
Supreme Court in Roe v. Wade 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.''
Mr. Chairman, we are going to hear a lot today about
violence to fetuses, violence to embryos, violence to zygotes,
violence to blastocysts. We'll hear about horrific acts of
violence perpetrated against women at advanced stages of
pregnancy, causing injuries to the fetus. The sponsors will
claim, even though this bill addresses only violence against
fetuses, that this bill is really being considered to protect
the welfare of these women.
We should have no illusions about the purposes of this
bill, that it is 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 portray fetuses, from the earliest
moments of development, as children, the same rights as the
adult women who are carrying them.
The implication is that anyone who does not share the
metaphysical slant, the metaphysical slant of the radical anti-
choice movement that a two-celled blastocyst is a person on
exactly the same basis and with the same rights as any child or
adult must secretly favor infanticide.
This bill, by making the destruction of a fetus or even of
a zygote a separate crime of murder, without any reference to
the possible harm to the pregnant woman speaks volumes about
that view. If causing a miscarriage is murder, then, by
implication, so is abortion, the Supreme Court never mind. Even
if the sponsors have papered over this premise with language to
the contrary, no one should be under any illusions that this is
the real purpose of this bill.
Let us take the sponsors at their word. In the last
Congress, the report of the majority of this committee made
clear that their concern was that ``except in those States that
recognize unborn children as victims of such crimes, injuring
or killing an unborn child during the commission of a violent
crime, has no legal consequence whatsoever,'' and that the
bill's purpose was, again, ``to narrow the gap in the law by
providing that an individual who kills an unborn child during
the commission of certain Federal crimes of violence will be
guilty of a separate offense.'' Providing such a separate
offense, as opposed, for example, to making greater the degree
of the offense, clearly recognizes and has the purpose of doing
so, the fetus as the victim of the violence, as opposed to the
woman being the victim, a proposition that is at odds with the
holding of the Supreme Court and of the Constitution.
One of the other problems with the bill is that it is
unclear, as one of the majority's witnesses testified at the
hearings a couple of weeks ago. Does the bill cover an embryo
only after implantation in the womb, as it seems to say, or
does it cover the blastocysts at conception? Put another way,
is it only murder if you cause the miscarriage of a viable
fetus or is it also murder if you destroy a two-celled zygote
at the moment of conception? I will ask the sponsor that
question during the discussion.
I think the sponsor of this legislation should tell us
which he means. It's a simple question and should have a simple
straightforward answer and not the confused language in the
bill.
The sponsors of H.R. 503 claim that it is a crime bill.
Yet, this bill was sent to the Subcommittee on the Constitution
instead of the Subcommittee on Crime. The implication seems to
be that the legislation is driven by the politics of abortion,
rather than by any substantive effort to end violence against
women, pregnant or otherwise. It will certainly reopen the
debate in the context of criminal prosecutions over such
questions as when life begins and other issues which are
properly addressed as constitutional matters or perhaps even as
metaphysical ones.
Violence against a pregnant woman is, first and foremost, a
criminal act of violence against the woman that deserves strong
preventive measures and stiff punishment. According to an
article in last week's Journal of the American Medical
Association, homicides during pregnancy and the year following
birth represent the largely preventable source of premature
mortality among young women in the United States.
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 of all
women.
Mr. Chairman, it's a disgrace that while these preventable
crimes continue to occur, Congress fiddles with largely
symbolic legislation, rather than taking real steps to deal
with the problem. Why, for example, did the Republican majority
fall $200 million short of President Clinton's request for full
funding of the Violence Against Women Act, something that might
really help this problem? Are the members who vote for this
legislation today going to join the rest of us in seeking full
funding of the Violence Against Women Act in fiscal year 2002?
Will they fight efforts to zero out, for the second year in a
row, programs authorized by this committee last year----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. Mr. Chairman, I ask unanimous consent for an
additional 1 minute.
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you.
Will they fight efforts to zero out for the second year in
a row programs authorized by this committee last year to
prevent such violence?
No one who listened to the testimony at our subcommittee
hearing could have been left unmoved by the terrible story of a
young woman who was murdered by her intimate partner in the
eighth month of pregnancy. I think we owe it to her, and to the
many women like her, to ensure that early intervention is
available and that States and localities receive the full
resources for the Violence Against Women Act.
We should also enact strong penalties, ones which are not
constitutionally suspect for these heinous crimes, but let's
not crowd that issue by plunging 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 the fetus. Some
courts have already experimented with this approach. The whole
purpose of Roe v. Wade was to protect the liberty interests of
the women. This bill would undermine it.
One more point, finally, which I think we need to
understand. For those of us who are pro-choice, that right
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 to deliver a
healthy baby in safety if she wants to. That's why we supported
the Violence Against Women Act, that's why we support programs
to provide proper prenatal----
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Nadler. And why we support the Family Medical Leave
Act. I suggest we not play politics with abortion and we not
pass this bill, and I thank the chair.
Chairman Sensenbrenner. Without objection, opening
statements will be placed in the record.
For what purpose does the gentleman from Michigan seek
recognition?
Mr. Conyers. Mr. Chairman, if there are no other
amendments, I offer a substitute by myself and Ms. Lofgren.
Chairman Sensenbrenner. We haven't gotten to amendments
yet.
Are there any amendments?
The gentlewoman from California, Ms. Lofgren, for what
purpose do you seek recognition?
Ms. Lofgren. The same as the ranking member.
[Amendment to H.R. 503 offered by Ms. Lofgren and Mr.
Conyers follows:]

Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment in the nature of a substitute to H.R.
503, offered by Ms. Lofgren and Mr. Conyers. Strike all----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and open for amendment at any point.
The gentleman from Ohio?
Mr. Chabot. Reserving a point of order, Mr. Chairman.
Chairman Sensenbrenner. Point of order is reserved, and the
gentlewoman from California is recognized for 5 minutes.
Ms. Lofgren. Mr. Chairman, this amendment is very simple.
It substitutes the Motherhood Protection Act for the Unborn
Protection Act. This amendment, which is offered by Mr. Conyers
and myself, recognizes that there are existing crimes in
Federal law that protect women from violence, such as violent
assault, but further it recognizes that when such crimes cause
a woman to miscarry, there is an additional harm to that woman.
This amendment provides for a crime with a sentence for that
additional crime against a woman.
I think it's important for us to pass this amendment and to
adopt the extreme penalty that is provided in the amendment. As
has been mentioned by Mr. Nadler, the bill before us is another
attempt to whittle away at the rights of women to determine
their own reproductive choices. I recognize that the proponents
of this bill are sincere on behalf of their cause; namely, that
the Government will make the choice of whether or not a woman
has a child, not the woman. I don't agree with that position,
but I recognize that that is a disagreement that we have in the
committee.
The problem with the Unborn Child Protection Act and the
rationale for this proposed substitute is to actually take a
step that would, in fact, provide full protection for a woman
who suffers a miscarriage as a result an assault. The
substitute advances protection for women, instead of advancing
a political cause, antichoice. And I think if we are serious
and interested in protecting women who suffer assaults, we will
adopt this amendment.
There was a lot of discussion that the chairman of the
committee talked about relative to mens rea, and the like, but
I would just like to note that the damage done, the horrible
experience of a miscarriage is something that does deserve
enormous protection, whether or not one knows one is pregnant.
I will just give you a personal experience. In 1980, I--in
December--I suffered a miscarriage. I did not know that I was
pregnant when my fallopian tube exploded, and I had a
terminated pregnancy. However, even though I did not know, it
was not because of violence, that is something that one never
forgets. One always, one's whole life, remembers what might
have been and is no longer possible.
On my 39th birthday, in my fifth month of pregnancy, I was
looking forward to a third child and had a miscarriage. And,
again, I knew I was pregnant, and it was not because of
violence, but a miscarriage is something one never forgets.
One's whole life a woman thinks about the child that could have
been.
And so when an assault is made against a woman and that
results in a miscarriage, there is a separate offense to that
woman. You have denied her ability to have the wanted child
that she was carrying. That offense, that crime is huge. It is
important, and it should be recognized under Federal law.
This amendment will do that, and I hope that we can move
back from the politics of division that relate to abortion and
instead move together in a thoughtful and fair manner to adopt
this substitute amendment that would, in fact, provide for
protection for women who are pregnant and who have been
assaulted and when that assault results in a miscarriage.
So I recommend that we adopt this amendment, and I thank
the ranking member for sponsoring it with me, and I yield back
the balance of my time.
Chairman Sensenbrenner. Does the gentleman from Ohio insist
upon his point of order?
Mr. Chabot. No, Mr. Chairman. Although we think it's a good
point of order, we will withdraw that point of order.
Chairman Sensenbrenner. Does the gentleman seek
recognition?
Mr. Chabot. Yes, Mr. Chairman. I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
This substitute amendment should be opposed for two
reasons: To begin with, the substitute is so ambiguous that it
will place any prosecution for violence against the unborn in
jeopardy.
Second, the substitute ignores the injuries inflicted by
violent criminals upon the unborn, transforming those injuries
into what amounts to mere abstractions. The terminology in the
substitute amendment is virtually incomprehensible, and if
adopted, it will almost certainly jeopardize any prosecution
for injuring or killing an unborn child during the commission
of a violent crime.
The substitute amendment provides an enhanced penalty for
interruption to the normal course of the pregnancy, resulting
in prenatal injury, including termination of the pregnancy. The
amendment then authorizes greater punishment for an
interruption that terminates the pregnancy than it does for a
mere interruption of a pregnancy. But what exactly is the
difference between an interruption of a pregnancy and an
interruption that terminates the pregnancy? The substitute
doesn't say.
Doesn't any interruption of a pregnancy necessarily result
in a termination of the pregnancy? And what does the phrase
``termination of the pregnancy'' mean? Does it mean only that
the unborn child died or could it also mean that the child was
merely born prematurely, even without suffering any injuries?
These ambiguities make the substitute almost impossible to
comprehend.
Second, the substitute amendment appears to operate as a
mere sentence enhancement authorizing punishment in addition to
any penalty imposed for the predicate offense. Yet the language
of Subsection 2(b) describes the additional punishment provided
in Subsection 2(a) as punishment for a violation of Subsection
(a), suggesting that Subsection 2(a) creates a separate offense
for killing or injuring an unborn child.
This ambiguity is magnified by the fact that the substitute
requires that the conduct injuring or killing an unborn child
result in the conviction of the person so engaging. Does that
mean that a conviction must be first obtained before the
defendant may be charged with a violation of Subsection 2(a) or
does it mean that the additional punishment may be imposed at
the trial for the predicate offense, so long as it is imposed
after the jury convicts of the predicate offense? Is a separate
charge necessary for the enhanced penalty to be imposed? The
substitute amendment simply makes no sense, and prosecuting
violent criminals under it would be virtually impossible.
Unlike the current language of the bill, the substitute
also contains no exceptions for abortion-related conduct, for
conduct of the mother or for medical treatment of the pregnant
woman or her unborn child. This omission leaves the substitute
amendment open to the charge that it would permit the
prosecution of mothers who inflict harm upon themselves and
their unborn children or doctors who kill or injure unborn
children during the provision of medical treatment. For that
reason, the substitute amendment is almost certainly subject to
a constitutional challenge.
The substitute amendment also appears to mischaracterize
the nature of the injury that is inflicted when an unborn child
is killed or injured during the commission of a violent crime.
Under the current language of the bill, a separate offense is
committed whenever an individual causes the death of or bodily
injury to a child who is in utero at the time the conduct takes
place.
The substitute amendment would transform the death of the
unborn child into the abstraction ``terminating a pregnancy.''
Bodily injury inflicted upon the unborn child would become a
mere ``prenatal injury.'' Both injuries are described as
resulting from an interruption of the normal course of the
pregnancy. These abstractions ignore the fact that the death of
an unborn child occurs whenever a pregnancy is violently
terminated by a criminal. They also fail to recognize that a
prenatal injury is an injury inflicted upon a real human being
in the womb of his or her mother.
If an assault is committed on a pregnant woman, and her
unborn child subsequently suffers from a disability because of
the assault, that injury cannot accurately be described as an
abstract injury to a pregnancy. It is an injury to a human
being. Our bill recognizes that; the substitute does not.
The substitute is thus fatally flawed and should be
rejected. The substitute amendment is so poorly drafted and
ambiguous that obtaining a conviction of a violent criminal
under it would be almost impossible. The substitute amendment
is also subject to constitutional attack because it contains no
exemption for the abortion-related conduct, for conduct of the
woman or for medical treatment.
And, finally, the substitute amendment ignores the injuries
inflicted by violent criminals upon unborn children,
transforming those injuries into mere abstractions.
For these reasons, the substitute amendment should be
rejected, and I yield back the balance of my time.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Michigan seek recognition?
Mr. Conyers. To support the substitute.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. Well, without blinking an eye, no one
supporting this bill has conceded in any way that, in fact,
what we're doing is granting a fetus, an embryo and even a
fertilized egg personhood, a person with rights and interests
separate from and equal those of the mother, which of course
exposes the whole truth of the matter already asserted by Mr.
Nadler and Ms. Lofgren that this is a very direct attack upon
Roe v. Wade.
Now there are many instances in which these measures are
the same. The bill and the substitute, it creates a separate
Federal criminal offense for harm to a pregnant woman, and it
continues on, but it is different in that it recognizes the
pregnant woman as the primary victim of a crime causing
termination of a pregnancy. It also requires a conviction for
the underlying criminal offense, thereby requiring the intent
to commit the underlying criminal offense be proven. It is also
different in that it focuses on the harm to the pregnant woman
providing a deterrent against violence against the woman.
So what we have here now is an artful attack on a
substitute, which on the floor, when this was brought forward,
came within nine votes of passage. So this new attack on
grounds of ambiguity, of unconstitutionality, of many, many
other things is a little bit I think late in terms of the
understanding of many of the members of the House of
Representatives.
This bill is similar to 503, making it a separate crime to
violently assault a pregnant woman and thereby interrupt or
terminate her pregnancy or injure her fetus. The substitute
does not require that the assailant have knowledge that the
woman is pregnant, another similarity with the bill before us.
But the one important way in which the substitute differs
is that it defines the crime to be against the pregnant woman,
whereas the main bill makes the crime against the fetus. This
distinction is the critical one because the substitute avoids
the issue, correctly, of fetal rights and fetal personhood
that, of course, puts the bill at odds with the major Supreme
Court decision, and instead recognizes that it is the woman who
suffers the injury when an assault causes harm to her fetus or
causes her to lose the pregnancy.
This substitute acknowledges the interconnections of the
woman and her fetus without distinguishing the rights of one
from the other, and so it therefore accomplishes the stated
goals of the major bill, notably the deterrence of violent acts
against pregnant women that cause injury to their fetuses or
the termination of her pregnancy. But unlike H.R. 503, it does
not--it does it in a way that avoids the controversial issues
of abortion and the right to choose. And that's why it was very
instructive, when I asked all of the witnesses before the
committee that the majority brought forward, whether they
supported Roe v. Wade, and not--surprisingly all of them did
not support it. All of them opposed it. And I think most of the
sponsors of the bill, even in committee, are those who have
problems with Roe v. Wade.
So this disguise is revealed, and a sensible alternative is
presented to you by myself and Ms. Lofgren, and I urge its
favorable passage.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose does the gentleman from California, Mr.
Issa, seek recognition?
Mr. Issa. I rise in opposition to the bill and seek to
strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Issa. In opposition to the amendment, to be more
specific. Sorry, Mr. Chairman.
I find it very disingenuous that this alternative is
suggested when, in fact, the bill, as it is presented, is
probably the best example of supporting what my colleague from
California and others have said is their position on a woman's
right to choose. A woman's right to choose is an exclusive
right. It is a right to protect that child or to terminate that
child. The Supreme Court did not say that this is not a child.
The Supreme Court supported a privacy claim, very narrowly
constructed, which I believe, if we go back and look at the
core of the problem, the problem was a question of what is a
mother's right over her unborn child.
This law simply seeks to strengthen the ability for a
mother who has been injured and whose child has been injured or
killed to seek appropriate punishment. I think there is no
question that it is hard for people on this side of the aisle
and on that side of the aisle, on one side of the life question
and the other, to come to consensus. But if there ever was a
sensible bill, one in which each of us could, in fact, agree
that this is a time in which the mother's right, and
obligation, and tradition of protecting the life of her unborn
child is essential and one in which the law has a gap in
supporting a woman when, in fact, that life is taken without
her permission.
As my colleague from Michigan has said, it is often a group
on one side that speaks on one side of this issue and a group
on the other that speaks on the other, and I'm no different
than anyone else on this panel. I have strong views on this.
But I ask my colleagues, supporting the amendment, to look more
closely at the real face of the bill, not what's in the hearts
of those who might present it, not what's in the mind of the
crafter, but what's in the bill.
This bill, in a straightforward way, is going to allow for
the punishment for those who take away a mother's right to care
for their child, and I have no question that if you read the
bill closely, and you put aside our petty differences over the
final goal, forget about the goalpost and look at one single
occurrence, you can support the bill as it is unamended.
I relinquish the rest of my time.
Ms. Lofgren. Would the gentleman yield?
Mr. Issa. I will yield.
Ms. Lofgren. I thank the gentleman for yielding.
I just would like to make a gentle point because I think
the underlying bill is clearly defective constitutionally. And,
for example, it assigns rights to a zygote that no court, and
the Supreme Court has not allowed. And consequently, the
protection that I believe the gentleman has said he intends,
and I don't question his intent, will not, in fact, be
delivered under the underlying bill.
However, if a pregnant woman is assaulted and miscarries,
even though her pregnancy is not developed towards a viable
fetus, it's still an injury to that woman. It is still a lost
opportunity that is a serious, serious harm. And that's why I
just wanted to say I believe that the substitute amendment
actually will provide constitutionally sound protection in that
instance.
And I thank the gentleman for yielding.
Mr. Issa. Mr. Chairman, just a short followup.
If you assume that the mother has all of the rights and
that this is not a child, then we lose the basis on which to
say that there is for sure additional damage. It is really only
when you take the absence of the mother's determination to
abort the child and link it with the child's inherent rights
sans that determination by the mother that you create an
individual, and additional, and severe penalty that should be,
in fact, passed.
Mr. Weiner. Will the gentleman yield on that point?
Mr. Issa. Yes, I will.
Mr. Weiner. What I'm not understanding in that explanation
is that we do have the opportunity, in this panel and this
Congress, to say that there has been additional harm to the
woman because of the loss that she's had, and this is an
additionally difficult and heinous crime, and we are going to
increase the penalties. So we certainly can do that, and that's
what the substitute does.
We absolutely have the ability to raise the stakes for
committing the crime against the woman that you describe
without drawing into it this other element. If we're interested
in that, I think you, and I, and members of this committee can
pass the bill unanimously that increases the penalty for that.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Schiff, seek recognition?
Mr. Schiff. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. Thank you, Mr. Chairman.
Both the bill and the substitute seek to accomplish the
same criminal justice purposes by using a sentencing
enhancement for those who injure a pregnant woman. Both seek to
deter the commission of subsequent crimes of that kind. Both
seek to increase the punishment for those who commit the crime.
Both seek retribution on those who have committed the crime,
and seek to incapacitate by increasing the sentence. So all of
the goals of the criminal justice law are satisfied by both
bill and substitute.
If I had to choose, as a prosecutor going into the
courtroom, and for 6 years in Federal court that's what I did,
and I know other members of the committee have had the same
experience, I would choose to go into court under a statute
less subject to constitutional attack, one, in fact, less
likely to be challenged on constitutional grounds. Like a court
that, given two ways to decide a case, one that requires it
decide to a question of constitutional significance, an
undecided question, or it can decide one on an alternative
basis, it always prefers the alternative basis. The substitute
has the merit of not forcing the Supreme Court to decide when
life begins.
All of the goals of the criminal justice system, all of the
deterrent value that we would want, are satisfied by both bill
and substitute, but the substitute is easier to implement in
the courtroom, it's easier for prosecutors to use, it is less
likely to involve a constitutional question, it is less likely
to be struck down. And if our purpose here really is deterrence
of these crimes and greater punishment for the perpetrator, why
choose a statute, why choose a bill that has much greater
likelihood of failing to survive motions to dismiss the
prosecution or requiring extended appellate proceedings?
We have a substitute that accomplishes all of these goals.
As a prosecutor, the last thing that I would want to do is have
to argue a motion about how we define an unborn child and what
it means to refer to a member of the species, homo sapiens, at
any stage of development who is carried in the womb, and have
that the subject of litigation in a prosecution. And all of
that is unnecessary if what we are after in this bill or
substitute is deterrence and incapacitation, all of the goals
of the criminal justice system.
Now, if that's not what we're after, if what we're after is
precisely what, as a prosecutor you would want to avoid and
that is a constitutional question of first impression, and all
of the delays and appeals attendant on that, well, then that's
another matter. If that is the goal, then we should support the
bill in its original form. But let's not undertake the pretense
that this is about something other than what it is. If we want
the Supreme Court to decide when life begins, then let's go for
the bill. If we want a vehicle we can use to prosecute these
cases, to put away people who commit these atrocious offenses,
and give prosecutors another weapon in their arsenal, I urge a
vote for the substitute.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Graham. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from South Carolina, Mr. Graham, seek recognition?
Mr. Graham. I move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Graham. Thank you, Mr. Chairman. We had this debate
last year, and there are some major differences between the
substitute and the underlying bill in terms of how you reach
justice and what you would do as a prosecutor, and I will be
glad to go over that in a moment.
But from the political aspect of it, Mr. Conyers mentioned
that I think it was nine votes short for the substitute last
year, but he forgot to tell us that the bill itself passed
254--by 254 votes. I would argue that there's not 254 pro-
choice people in Congress. I do believe there's 254 people who
understand that this is not about abortion, this is about
putting people in jail to the fullest extent of the law when
possible, and America has a disagreement over the right to
choose.
I'm a pro-life person, and I understand that debate I think
very well, and I'm not going to question your religion or your
patriotism if you disagree with me, but America seems to be
coming together in a couple of areas. Late-term abortions, in
the seventh, eighth, ninth month of pregnancy, most Americans
view abortion at that point in time as something very
uncomfortable, and they would only do that to save the life of
the mother.
This is a bill where a lot of Americans come together. Once
the woman has chosen to have the baby, and the baby is lost
through criminal activity, most Americans, I believe, would not
consider the unborn child the enemy there, but something that
we would want to protect and would like to put the person in
jail. And let me tell you how the law is developing in this
region, in this area.
There are 11 States that have statutes just exactly like
the bill I have proposed. And we can talk till the cows come
home about what terminating a pregnancy means, an unborn child,
when the twelfth week of pregnancy occurs, that's all proof
problems that every prosecutor will face. The bill is drafted,
I think, very legally sound in the sense that it mirrors what
11 States have already had on the books for several years and
have been tested. Thirteen States allow you to prosecute an
individual who attacks a pregnant woman and destroys the unborn
child after 12 weeks, after the embryonic stage of development,
a different time period. Seven States have sentence
enhancement. Now sentence enhancement, I believe, is a lawful
way to approach this topic. I have problems with the substitute
as drafted because I think it is vague, but you could probably
make it work.
Let me tell you why I think the majority of States have
rejected sentence enhancement in this area. The Arkansas case.
The Arkansas case that Asa Hutchinson's I think nephew brought
to our attention last year involved a man who hired three
people to kidnap his pregnant girlfriend because he didn't want
to pay child support. They did that, they kidnapped her, beat
her within an inch of her life. She was begging, while she was
being beaten, for the protection and safety of her unborn
child. They killed a 7-pound baby in her womb. Under Arkansas
law, they're prosecuted as murderers, not an additional
sentence for assaulting people. I think most people would side
with the mother and say they murdered her unborn child.
Now this becomes a proof problem about termination of
pregnancy when a child is in utero, but legally you can do it
that way if you choose. And I've chosen to do it that way
because that's where the majority of States are coming out on
this issue. That's where the case law is. And in my bill, we
never can prosecute the woman, no matter what she does to the
unborn child. We protect people who perform abortions, when the
woman has given her consent, implied or otherwise, and the
medical community need not worry. This is not about abortion.
This is about putting people in jail to the fullest extent
possible when they attack pregnant women, and the way you avoid
getting put in jail with this bill is you don't hurt anybody.
I yield back the balance of my time.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Nadler, seek recognition?
Mr. Nadler. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you.
Mr. Conyers. Would the gentleman yield briefly?
Mr. Nadler. Yes, I'll yield briefly.
Mr. Conyers. Thank you. I just wanted to let Mr. Graham
know that his illustration that he doesn't think there are 254
choice votes in the Congress, pro-life votes in the Congress,
illustrates my point. We had nine--we came nine votes short of
winning on the floor, which means that there were people of
both persuasions that were involved, and I think it's a tribute
to those people with common sense on both sides of this issue
to realize that this is a much more sound approach.
I thank the gentleman for yielding.
Mr. Nadler. Thank you. Mr. Chairman, reclaiming my time.
Mr. Chairman, there's been a lot said, but the essence of
this debate really comes down to what is written in the memo
from the National Right to Life Committee, and I'd like to read
from that. It's talking about the Lofgren substitute, and it
says, ``This proposal did not recognize unborn children as
crime victims, but rather provided enhanced penalties for the
offense of interruption to the normal course of the pregnancy.
Such a one-victim amendment would codify the fiction that when
a criminal assailant injures a mother and kills her unborn
child, there has been only a compound injury to the mother, but
no loss of any human life.''
And then it goes on. Then it says, ``Such internal
contradictions are produced by tortured efforts to avoid
acknowledging what everyone really knows. These crimes have two
victims.'' And the Supreme Court said that the unborn have
never been recognized in the law as persons in the whole sense,
and that ``person,'' as used in the Fourteenth Amendment, does
not include the unborn.
If we want to punish the assailant for killing or injuring
the fetus, this bill will do it, the substitute will do it. The
difference is precisely, and several members on the other side
have acknowledged this, is precisely whether we want, for the
first time in the law, to recognize the fetus or the zygote or
the blastocyst as a separate person. That is the difference,
that's the debate, and I understand those who want to do it,
and the National Right to Life Committee is commendably honest
in saying that that's the point of the bill and that the
amendment is not good because it doesn't do that. I think
exactly the opposite. Enough said on that point.
I'm going to ask Mr. Lindsey a question--Mr. Graham,
rather. Sorry--Mr. Graham a question. The bill does say, in
this section, ``The term `unborn child' means a child in utero
or child who is in utero means a member of the species homo
sapiens at any stage of development--'' that sounds clear ``--
who is carried in the womb.''
Now, ``who is carried in the womb'' would seem to mean
after implantation. At any stage of development would seem to
mean before implantation, as well as after implantation, and I
would think that if you don't read ``who is carried in that
womb'' to modify that and to limit to only after implantation,
then it has no meaning at all. I would think any court would
read it that way.
So my question is what is the intent of the bill, and is
the intent really to say that a two-celled, a fertilized egg,
is a person in the legal meaning of the term and has legal
conse--and that the full strictures of the bill should apply to
that?
I will yield.
Mr. Graham. The intent of the bill is to mirror those
statutes that have been on the books for years that recognize
it a separate offense to attack a woman who has--who is
carrying at any stage of prenatal development--an unborn member
of the species, homo sapiens.
Mr. Nadler. Reclaiming my time. I have a specific question.
Mr. Graham. Yes.
Mr. Nadler. Does it mean from the time of conception or
does it mean from the time of implantation or does it mean from
some other time? That's my only question. I'll yield for the
purpose of answering that question.
Mr. Graham. I think the term ``carried in the womb'' is the
term, the operative phrase here, and it means just what we
tried to do when we passed 417 to nothing----
Mr. Nadler. But what is that? Tell me which it is.
Mr. Graham. It's in the statutory language. It's a proof
problem. I think I understand, as a prosecutor, what I have to
prove under the statute, just like every other State that has
this statute on the books.
Mr. Nadler. Excuse me. A defendant has to be on notice. My
question is, and you should be able to answer it, if someone
kills an embryo before implantation in the womb, is that a
violation of this statute or is it not, of this bill?
Mr. Graham. I'd say the operative phrase is ``carried in
the womb,'' and if it's not carried in the womb, then it would
be no crime.
Mr. Nadler. So it doesn't mean at any stage of development,
only once implanted in the womb.
Mr. Graham. What it means, Mr. Nadler, is just exactly what
it means in 11 other States who have the laws on the books----
Mr. Nadler. Well, I don't have those States----
Mr. Graham. And it means exactly what we tried to do when
we said you couldn't execute a pregnant woman. Four hundred and
seventeen people to nothing----
Mr. Nadler. Reclaiming my time.
Mr. Graham. If you don't want to hear the story, I'll tell
it later.
Mr. Nadler. Fine. I asked a very specific--I understand--I
understood the----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. I guess there's no clear answer then.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Pennsylvania, Ms. Hart, seek recognition?
Ms. Hart. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Hart. Thank you, Mr. Chairman. I also ask my colleagues
to oppose this amendment, an amendment that does not do the
same thing as the original bill, although they do call it a
substitute.
Mr. Chairman, from my reading of that, what it does, in my
opinion, is harm to legislation that is really directed at the
general crime, and often in this case, of domestic violence.
Mr. Chairman, it actually lists on Line 4, Page 1, Section
2, crimes against a woman. Mr. Chairman, I submit to my
colleagues that this is far more than a crime against a woman.
In fact, many of these acts perpetrated against a woman who is
pregnant are perpetrated for the very reason that she is
pregnant. Famous cases that we've heard and that were discussed
in our hearing, such as the Rae Carruth case, are unfortunately
all too common in the United States. They are the extreme cases
of domestic violence, which unfortunately, with all of the
education that we've had of our young people, do continue in
this world.
Domestic violence is not always a crime against a woman
alone, and I'm going to state that again. Domestic violence is
called domestic violence because it is a crime against
families. It is against other members of the family. We had
testimony, Mr. Chairman, from a gentleman whose sister was
murdered, along with his unborn niece. That is a crime against
that family. That is what domestic violence is.
I submit that Mr. Graham's legislation seeks to provide a
further penalty against the person who commits an extreme act
of domestic violence, resulting in possibly the death of the
pregnant woman and additionally the death of her unborn child.
This substitute, in no way, substitutes sufficiently enough
penalty to basically deter any perpetrator from such an extreme
violent act.
Also, I would like to mention, Mr. Chairman, that as a
State Senator in Pennsylvania, I was able to participate in
similar discussion on legislation that we passed in 1998. I
would submit to my colleagues that at that time we had, I
believe, 45 votes out of 50 for the legislation, worded in a
very similar manner, with the same intent. There were, by no
means, 45 pro-life State Senators in that body at the time.
This is not an issue of abortion. This is an issue, as I
submit, to my colleagues, I believe, of extreme domestic
violence. It is a violence against a pregnant woman, yes. It is
also a violence against a family, it is a violence against a
child, it is a violence that if we do not punish it more fully
will, unfortunately, continue to proliferate in this country.
I yield back the balance of my time.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. Strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I thank the chairman very much, and I rise
to support the Conyers-Lofgren substitute, frankly, because
this is what it is. It is an emotionally charged issue. It is
an attempt, on an ongoing and continuous basis, to ignore the
constitutional right to choose under Roe v. Wade.
I must remind my colleagues that individual State actions
are different from the responsibility of this Judiciary
Committee that serves as the body that governs laws for all of
the people of the United States of America. There's nothing
more emotionally disturbing and riveting for a mother to lose
her child, for a mother to lose the ability to be a mother, for
the mother involuntarily to have that taken away from her, and
maybe from the entire family.
I'm reminded of sitting here in this room, with
Congresswoman Pat Schroeder, who is not here, as we listened
year after year of the pain that was exhibited by those women
who came forward expressing the need for a medical procedure
dealing with the termination of a pregnancy that would then
allow them to have a child in the future. That was called my
colleagues on the other side of the aisle partial birth
abortion.
That moved throughout this Congress consistently labeling
those of us who had a different view; that is, that we wanted
the choice to be with mom, and family, and the religious
leader, and physician. And I think this amendment gets to the
point of what my colleagues are trying to express, and I only
wish that we would understand the value of the Constitution and
the existing federally constituted law, and that is the law of
Roe v. Wade.
We can pass this legislation, under the Conyers and Lofgren
amendment, and we can answer the question of my colleagues. For
example, we can answer the questions of the United States v.
Robbins, Supreme Court, where an airman on an Air Force base
brutally beat his wife, she survived, but the little 8-month,
not-yet-termed Jasmine, that was named, did not survive in the
mother's womb. Under the legislation, both with the Conyers
amendment, which cites an assault provision, that particular
incident, that tragic incident, the unwillingness of that
mother to have lost that unborn child, would have been covered
by this substitute, for the substitute provides and protects a
woman and punishes the violence resulting to injury or
termination of pregnancy. How clear can we get?
You already heard a prosecutor, who has been in the
courtroom for a number of years--many of us have served in
similar capacities--be able to say that that is clear on its
face. You have injured the woman, which has resulted in the
injury or termination of a pregnancy. And additional, this
provides for a 20-year-sentence for injury, but a maximum of
life for death in the instance of the termination of a woman's
pregnancy.
The clear deciding difference that we have in the
legislation offered by my friends on the other side of the
aisle, and I think it's fair to say that this is going to the
very heart of the emotions and heartstrings of America. Of
course, in various State legislatures, where they do not have
the responsibility to speak for the vastness of the Nation, it
is easy to pass legislative initiatives such as that.
When I was in local Government, we rarely had divide over
these kinds of issues because there were more likeness of point
of view, little attention to constitutional soundness. The
responsibility of the Judiciary Committee is constitutional
soundness. This is not constitutionally sound. And the tragedy
of this is that time after time we come here, and rather than
forthrightly say let's put the amendment on the table to undo
Roe v. Wade, we chip, chip away, and we dangerously undermine
the rights of women and the rights of Americans who quietly
remain in their homes not protesting, not speaking out loud,
supporting the right to privacy and the right of Roe v. Wade.
I can tell you that we have all experienced a tragedy.
Those of us who are women have had, in our lives, tragedies
dealing with the losing of a child.
Ms. Jackson Lee. Fathers have lost and felt this experience
from a different perspective. So I simply say that can we not
come together, can we get along and support the substitute
which responds to the concerns that are being expressed I
believe fairly and justly that gives you both relief, that
provides the punishment for that brutal person who would
terminate or injure that pregnancy and yet protects what is
constitutionally our right, which is the Roe v. Wade decision
that has yet been undermined.
Now, let me just conclude, Mr. Chairman, by simply saying
that we know the journey of this legislation at this point. It
is now attempted again so that it will go through I assume the
Senate if it takes it up, and we know what the results will be
with the new Administration. How tragic, and I hope that those
who have expressed themselves at the polls understand what
votes mean today. It means that constitutionally sound law that
have been the law of the land for years and years and years now
will be undermined because of someone's failure to count a vote
or someone's failure to vote. It's a tragedy. I frankly believe
that the Lofgren and Conyers substitute is constitutionally
sound, but more importantly, it provides the relief that the
present H.R. 503 does not.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The question is on the amendment in the nature of a substitute
offered by the gentlewoman from California, Ms. Lofgren. Those
in----
Mr. Conyers. Record vote.
Chairman Sensenbrenner. Record vote is requested. Those in
favor will, as your names are called, answer aye; those
opposed, no; and the Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
Mr. Scarborough. No.
The Clerk. Mr. Scarborough, no. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, No. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Pass.
The Clerk. Mr. Watt, pass. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. The gentleman from North Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Alabama.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. The gentleman from Arkansas.
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no.
Chairman Sensenbrenner. The gentleman from Indiana.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Meehan. Aye.
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. Mr. Chairman, I change my pass to aye.
Chairman Sensenbrenner. The gentleman from California.
Mr. Issa. No.
Chairman Sensenbrenner. Are there any additional members in
the room who wish to record their vote or to change their vote?
If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 20 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Michigan,
Mr. Conyers.
Mr. Conyers. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Mr. Chairman, I do not have--amendment to H.R.
503 offered by Mr. Conyers and Ms. Baldwin. Add at the end the
following: Section 4----
Mr. Conyers. I ask unanimous consent the amendment be
considered as read.
[The amendment to H.R. 503 offered by Mr. Conyers and Ms.
Baldwin follows:]

Chairman Sensenbrenner. Without objection, and the
gentleman is recognized for 5 minutes.
Mr. Conyers. Members of the Committee, this follows the
discussion about the Violence Against Women Act full funding,
and this is a full-funding amendment that I offer that would
make the effective date of the bill contingent on full funding
programs authorized by the Violence Against Women Act.
Most of us here last Congress remember that this Committee
unanimously passed the Violence Against Women Act and the House
overwhelmingly approved the same measure by a vote of 415 to 3.
But unfortunately, the Violence Against Women Act authorized
over $677 million to be spent on programs to combat domestic
violence and sexual assault in the Fiscal Year 2001, the
amounts appropriated in that same budget are more than $200
million short of the authorization levels, and this disparity
is inexcusable, and I am hoping that we here would ensure that
VAWA is fully funded in the next year's budget.
Now, although VAWA authorized $235 million for the stop
grant program, less than $210 million was appropriated for this
purpose. So even though the authorization had an increase in
funding in real terms, there was actually less money
appropriated for stop grants than there was for the past 2 or 3
years. We all know that this wasn't the intent of the VAWA
reauthorization.
In addition, there was no money appropriated for new
programs created by VAWA reauthorization legislation. This
includes programs that were proposed and passed on a bipartisan
basis by this Committee, such as protections for older and
disabled women, education and training for judges and court
personnel, the Domestic Violence Research Task Force and
supervised visitation centers.
We know that VAWA is the lifeblood for shelters and
services, victims of violence throughout the country, and we
also know that the Violence Against Women Act works. Since the
passage in 1994, we have seen a reduction in levels of sexual
assault and domestic violence.
So before we criminalize injury to even a fertilized egg, I
hope that we would make sure that there's full funding for the
bipartisan Violence Against Women Act programs that truly help
prevent domestic violence. Please support the amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman yield back the
balance of his time?
Mr. Conyers. Yes, of course.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I will be relatively
brief.
Most of us on this side do clearly support the Violence
Against Women Act but there's absolutely no reason to tie
funding to that particular bill to this legislation.
Our purpose in the bill that has been proposed by Mr.
Graham is to protect pregnant women who are viciously attacked
by criminals and to also protect the unborn children that
they're carrying.
Domestic violence is clearly a serious problem in this
country. There is a congressional role most of us believe and
have supported that in the past and will continue to support in
the future, but there's absolutely no reason to tie these two
together. For that reason, I oppose this amendment and yield
back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I speak in support of the amendment and I
want to speak to the issue that I think was raised by the
gentlewoman from Pennsylvania regarding the efficacy of this
act in terms of domestic violence, and I really believe it's
important that the American people understand that what we do
here in terms of the underlying bill will have absolutely no
impact at all in terms of deterrence, in terms of deterring
those who would commit a violent act upon a woman whether the
woman was pregnant or whether she was not pregnant.
The issue of domestic violence is an issue that I have been
committed to for some 26 years. I was a former State's Attorney
in a large metropolitan jurisdiction outside of Boston. We
initiated the first domestic violence program in the United
States, and it is very clear that the resources that have been
authorized by VAWA have made a difference in terms of domestic
violence and assaults and violence against women, whether they
be pregnant or whether they be not pregnant.
So let's not suggest that the underlying bill will in any
way deter violence against women, because it will not; and
again, I urge my colleagues to support the Conyers amendment
and yield back.
Chairman Sensenbrenner. The question is on the Conyers
amendment.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I support this amendment. It
seems to me that the amendment goes to the heart of the real
purpose of the bill. If the real purpose of the bill is to deal
with assaults against women, then we ought to be fully funding
the real preventive programs in the Violence Against Women Act.
If the real purpose of the bill is something else, as for
example to define human life in a way to undermine Roe v. Wade,
if that's the real purpose of the bill, then obviously the
Violence Against Women Act doesn't have too much relevance to
it and this amendment really doesn't advance the purpose of the
bill.
But if the real purpose of the bill is that we have to help
women who are attacked, that we're upset about, in particular,
the attacks on pregnant women, the damage to women and the
fetuses they carry, then obviously we would want to fully fund
the Violence Against Women Act and anything that we could do to
prod our colleagues into doing that such as this amendment,
which really brings it into stark outline, advances the purpose
of the bill.
And let me remind you of the finding of the Journal of the
American Medical Association last week that pregnancy-
associated death represents a largely preventable source of
premature mortality among young women in the United States and
devastates the children, families, communities left behind.
Largely preventable sources of premature mortality among young
women in the United States.
I would hope that we would pass this amendment. I hope we
don't--I should be very clear, not disingenuous--I hope we do
not pass the bill, but if we're going to pass the bill, at
least we can do something constructive in this bill by
associating it with an attempt to get adequate funding for
things that will really help in this battle against domestic
violence.
I thank the Chairman. I urge my colleagues to support the
amendment and I yield back.
Mr. Graham. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from South Carolina seek recognition?
Mr. Graham. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Graham. And I know we're all ready to vote, but I do
believe there is a deterrent aspect to this bill versus waiting
or doing sentence enhancement, and it doesn't allow the use of
the death penalty because I did not want to get in that debate
when I drafted the bill; I wanted to try to bring the Congress
together the best I could and avoid issues like the death
penalty.
But the Arkansas case I think is a good illustration. The
people who kidnapped the pregnant woman and beat her for money
so that the man would not have to pay child support are on
death row in Arkansas. Maybe the next time someone comes along
and offers people to beat up pregnant women, they'll turn down
the offer because the consequences are too great.
My bill doesn't allow for the death penalty, but we're
trying to make the consequences of a violent assault in society
against pregnant women and protect the unborn coexist together,
not inconsistent with Roe v. Wade. I think it does add a great
deal of deterrence to have two separate offenses. I think any
prosecutor, as the Air Force did in Ohio by incorporating the
Ohio law through the Crimes Act, would relish the opportunity
to prosecute the offender twice, not once, for something this
brutal and this bad.
And the point is to do justice, to bring the full force of
law as we can and view it to be appropriate, and this amendment
doesn't do justice. This is politics, I think, at its worst and
I would ask you to reject it.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. rollcall.
Chairman Sensenbrenner. rollcall is ordered. Those in favor
of the Conyers amendment will as your names are called answer
aye; those opposed no; and the Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, No. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. No.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. No.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Scarborough.
Mr. Scarborough. No.
The Clerk. Mr. Scarborough, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. No.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. No.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Aye.
Chairman Sensenbrenner. Are there additional members in the
chamber who wish to record their vote or change their vote?
If not, the Clerk will report.
The Clerk. Mr. Chairman, there are eight--eleven ayes and
18 nays.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler.
Mr. Hostettler. If I may be recorded, Mr. Chairman, no.
Chairman Sensenbrenner. The Chair has not announced the
result of the vote. Mr. Hostettler votes no.
The Clerk. Mr. Chairman, there are eleven ayes and 19 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Virginia,
Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment in the Nature of a Substitute to H.R.
503 Offered by Mr. Scott.
Mr. Scott. Mr. Chairman, I ask unanimous consent that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
The gentleman from Ohio reserves a point of order and the
gentleman from Virginia is recognized for 5 minutes.
[The Amendment in the Nature of a Substitute to H.R. 503
offered by Mr. Scott follows:]

Mr. Scott. Mr. Chairman, this amendment is an attempt to
solve a serious problem, and that problem is violence against
pregnant women.
Last week's issue of the Journal of the American Medical
Association reported on a study of pregnancy-related mortality
in Maryland over a 5-year period. The findings were stunning.
The American Medical Association found that the leading
cause of death among pregnant or recently pregnant women was
homicide. Homicides made up 20 percent of all pregnancy-related
deaths, twice the rate of cause of death of non-pregnant women,
and more than twice as many deaths as embolisms, which was in
second place.
Maryland's study was consistent with other studies. It
showed that pregnant women are at increased risk for domestic
violence. And so for pregnant women, threats from social--
threats from the social envelope, such as homicide and domestic
violence, are at least as dangerous as those from the
biological envelope.
Violence against pregnant women devastates not only the
women involved, but also children, families and communities. It
is a largely preventable problem that we should be able to
address without engaging in a debate over abortion or the
philosophical issue of when life begins, and we should be able
to do it without creating additional categories of victims.
I believe the simplest way to address the problem is with
sentencing enhancements to take into account those situations
where the victim of a crime is a pregnant woman. Sentencing
enhancements offer the opportunity to take into account a
number of different factors such as whether the pregnancy was
interrupted or terminated, or whether the crime was
specifically intended to interrupt or terminate a pregnancy.
Mr. Chairman, this amendment addresses several of the
concerns articulated by the gentleman from Ohio because it has
exceptions for cases where it's an abortion or the conduct of
the pregnant woman. The sentencing enhancements would not apply
to conduct relating to abortion or the conduct relating to
provisions for medical treatment or the conduct of the pregnant
woman as addressed by the gentleman from Ohio as concerns.
I suggest that we take a reasonable approach to the serious
problem of violence against pregnant women, and I ask that you
support this amendment in the nature of a substitute so we can
address the problem of violence against pregnant women that the
American Medical Association has found to be a serious threat.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Scott. I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from Ohio seek recognition? The gentleman from Ohio wishes to
press his point of order?
Mr. Chabot. Mr. Chairman, as before, I'll withdraw my point
of order at this time.
Chairman Sensenbrenner. Okay. Does the gentleman move to
strike the last word?
Mr. Chabot. I do, Mr. Chairman.
Chairman Sensenbrenner. He is recognized for 5 minutes.
Mr. Chabot. Thank you very much, Mr. Chairman.
This substitute amendment should be opposed for a couple of
reasons. The substitute, as the first amendment made today was,
is ambiguous. We believe it would place any prosecution again
against the unborn in jeopardy. Second, the--against violence
against the unborn in jeopardy.
In addition to that, the substitute ignores the injuries
inflicted by violent criminals upon the unborn, transforming
these injuries, as I said before, we believe into mere
abstractions. The terminology in the substitute amendment is
very difficult and, if adopted, it would almost certainly again
jeopardize any prosecution for injuring or killing an unborn
child during the commission of a violent crime.
The substitute amendment would authorize an enhanced
penalty for interruption or termination of a pregnancy. Again,
it's difficult--what exactly is the difference between an
interruption of a pregnancy and an interruption that terminates
a pregnancy? The substitute really doesn't address that. It
doesn't--wouldn't any interruption of a pregnancy necessarily
result in termination of the pregnancy? Does terminate mean
only that the unborn child died, or could it mean that the
child was merely born prematurely even without suffering
injuries? These ambiguities make the substitute very, very
difficult to understand and we think that if it were attacked,
there is a good chance that it would be overturned.
The substitute amendment also appears to mischaracterize
the nature of the injury that is inflicted when an unborn child
is killed or injured during the commission of a violent crime.
Under the current language of the bill, a separate offense
is committed whenever an individual causes the death of or
bodily injury to a child who is in the womb at the time the
conduct takes place. The substitute amendment would transform
the death of the unborn child into again what we consider an
abstraction, terminating or interruption of a pregnancy.
These abstractions ignore the fact that the death of an
unborn child occurs whenever a pregnancy is violently
terminated by a criminal. They also fail to recognize that a
prenatal injury is an injury inflicted upon a real human being
in the womb of his or her mother.
The substitute is thus fatally flawed and should be
rejected. The substitute amendment we believe is not very well
drafted and ambiguous. No offense to the maker of the
amendment, but obtaining a conviction of the violent criminal
under this would be very difficult.
The substitute amendment ignores the injuries inflicted by
violent criminals upon unborn children, again, as we said,
transforming them into what we think are mere abstractions.
Moreover, the substitute would only authorize a mere
sentence enhancement when the victim of a violent crime is
pregnant, and that trivial increase in punishment would not
reflect the seriousness with which violent crimes against
pregnant women and unborn children should be treated.
For example, if an individual assaults a pregnant woman,
the base offense level for the offense under sentencing
guidelines is 15, which carries a sentence of between 18 and 24
months if this were a congresswoman, for example, because these
are Federal predicate statutes.
If the congresswoman were pregnant and her unborn child
were killed or injured as a result of the assault, a bodily
injury or vulnerable victim sentence enhancement would result
in an offense level of 17, which carries a sentence of 24 to 30
months.
The permissible range of punishment for the assault would
thus increase only by an additional 6 months, and we think that
that's just totally inappropriate, especially if the assailant
intended to kill the unborn child.
This minor increase in punishment is woefully inadequate
for the offense of killing or injuring an unborn child, and for
these and many other reasons, the substitute amendment should
be rejected. And I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, seek recognition?
Mr. Weiner. To briefly strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. I have a great deal of respect for my good
friend from Ohio, but I just--I find it a tad ironic to
criticize the amendment for its level of abstraction when the
base bill seeks to define human beings as a--seeks to define
zygotes or blastocysts or embryos as human beings and begin
this what is clearly a philosophical debate about when life
begins.
I mean, there are reasons that you can support the base
bill and oppose the substitute. You can say that we want to
have, in the context of the 66 laws that are in the books just
under USC 18 that this might impact, we want to have a debate
about abortion in every single one of them; you can say that we
want to spur another level of debate about when a life--when
life begins; and you can say that I believe very strongly even
if it jeopardizes prosecutions, as my good friend from
California pointed out earlier, we still want to do it. But to
say that you oppose the amendment because it raises this debate
to a level of abstraction is a little bit absurd.
The whole point of the base bill is to raise to the level
of--to raise to level of person a zygote. I mean, if that isn't
an abstract notion, then I think that nothing is.
The fact remains and I think that it has been put here
several times that if your objective is to punish someone and
to throw the book at someone and to whack them with the full
force of law, then there are many, many ways that we can do
that that do not get into the morass that the bill gets us
into.
You can increase the--if you don't like the sentencing
guideline language that's in this substitute and you want to
ratchet it up another notch, I can tell you I would probably
vote for an amendment that you can offer for that purpose. If
you think that there should be that a life sentence isn't
enough, you want to have two life sentences, or five life
sentences, or 900 years sentences for doing violence against
women, I think we could have a debate and I would probably be
willing to support you. I have never voted against an effort to
increase the penalties for violating--for committing crimes
against women.
But the fact remains that if you're wedded to the idea
about having a debate about when life begins, then this is the
way to do it, the base bill is the way to do it. If you really
want to do something, if you want to increase the penalties,
then we're essentially offering you anything possible that will
allow you to do that.
But if you want to have abstraction to the nth degree, if
you want to have when they're having a trial about whether or
not someone threw scalding water within a special maritime
jurisdiction in the United States and you think that we should
also have a debate about abortion in that context, then you
should not vote for the amendment, you should vote for the base
bill.
If you want to have a--in the context of prosecution about
tampering with the consumer products that affects interstate
commerce and you think we should have, in the context of that
trial, we should have a discussion about whether a zygote or an
embryo constitute a human life, then you're right, you should
not support this amendment, you should support the base bill.
And I got to tell you, I'm not really sure why the sponsors
are stopping here. Why not simply amend all references to
person in the entire US Code and substitute zygote? Let's do
that. Why even stop here, why stop and just--I mean, if that's
really what the purpose of the debate is from the perspective
of the sponsors, then substitute it throughout. Never mind just
18 USC and a few spots in 21 USC or 42 USC, let's substitute
all throughout, let's have every single prosecution of every
single Federal law ever brought. Also, it should have an
abortion debate within it. That seems to be the objective of
the sponsors of the base bill.
I yield back my time.
Chairman Sensenbrenner. The gentleman's time has expired.
Just so that members can make their plans, let me state
that it is the Chair's intention to recess the Committee at the
time of the next vote on the floor, which is anticipated to be
within the next 15 minutes, and to come back at two o'clock to
complete the calendar.
For what purpose does the gentleman from South Carolina
seek recognition?
Mr. Graham. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Graham. I would ask my colleagues to oppose the
amendment, but I do appreciate my colleague from Virginia
bringing out a disturbing fact, that one of the leading causes
of death is murder among young pregnant women, and that there
was a study done in the District of Columbia of women who were
killed between--in an 8-year period, and they went back through
the autopsy records and found that 30 of them were pregnant and
they're beginning to find that one of the common problems in
these cases is that boyfriends--domestic violence abuse
situations result in their death, and they're afraid that the
pregnancy may be part of the motivating factor. So we've
defined the problem as a growing problem in America. Now what
to do about it?
Now, my good friend from New York, I just ask you to read
the statutes on the books. There are seven sentencing
enhancement statutes that talk about terminating a pregnancy.
When a pregnancy begins is defined in the law in those statutes
and prosecutors have to prove that a pregnancy was interrupted
resulting in a termination.
I have chosen another course. I have chosen the larger body
of law that allows someone to be prosecuted for criminal
activity when they assault a pregnant woman, for any damage
done to unborn child at the earliest stages of development,
being carried in the womb, and that's what the prosecutor would
have to prove. In eleven States, they do that fairly routinely.
But the problem is growing, and I would ask you for a
moment not to look at this through the eyes of an abortion
advocate or a pro-life person, but to go into the testimony
that we've acquired over the last couple of years from the
families involved in situations that occur where the mother is
killed carrying an unborn child wanted by the mother and the
father.
Michael Lenz lost his wife and unborn baby boy in the
Oklahoma City bombing in April 1995. His unborn son's name was
Michael James Lenz III, and his wife had just brought in
pictures of the unborn child ultrasound images in the office
the week before and she got to work particularly early that day
and we all know what happened in Oklahoma City.
And he came to us and tell--to tell us that, ``I'm not a
Republican, I'm not a Democrat, I'm not here to talk about the
abortion debate; I'm here to tell you that I believe that I
lost my son and the person who took my son away from my wife
and myself was not fully punished, and when you list the
victims in the Oklahoma City bombing, I wish you would put
Michael James Lenz III.''
We had a gentleman come in from North Carolina, William
Creston, who said that his niece--excuse me--his sister,
Ruthie, and her unborn child were murdered by her boyfriend,
and he said, ``I'm not a Democrat, I'm not a Republican and I'm
not a lawyer, but our family grieves for the loss of that
unborn child that was murdered.'''
I would argue to my friends on the other side that if you
really want to address this problem, let's bring the full force
of the law down on the heads of people who do this.
I yield back the----
Mr. Delahunt. Would the gentleman yield? Lindsey, would you
yield for a minute?
Mr. Graham. Yes. Yes.
Mr. Delahunt. I would just pose the question, the one that
I did earlier in the debate. Let me pose it to you. When you
say bring the full force of the law down upon the offender, I
presume what you're saying is that there is--that society has a
right to punish, and that there is a right to--a legitimate
right, a legitimate right in a justice context to seek
retribution. But in any of these cases, would you claim that by
passing this particular bill that's before us, that it would
serve as a specific deterrent, whether it be Timothy McVeigh in
Oklahoma or whether it be any other perpetrator? Because I
believe, from my own experience, that first, a potential
assailant in a domestic violence situation is not--first of
all, he's not going to be aware of this particular bill, this
particular proposal. You and I both know that most criminals do
not carry with them a compendium of the criminal statutes of
the United States Code.
On top of that, clearly this act itself--and if you're
claiming that punishment is appropriate or enhanced punishment
is an appropriate response by society to these acts, I can
understand that.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose does the gentleman from North Carolina,
Mr. Watt, seek recognition?
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I'll yield a minute to Mr. Delahunt to finish his
point if he wants to.
Mr. Delahunt. Yes. I just would--I would pose that to my
friend and colleague from South Carolina. I'm aware of no
evidence whatsoever, either anecdotal or empirical, that would
indicate that anything that we do in that regard would deter an
assault, an attack.
Mr. Graham. Will the gentleman yield? Would the gentleman
yield?
Mr. Watt. I'm going to yield to Mr. Graham so he can
respond.
Mr. Graham. Thank you.
I would agree with the gentleman along with the idea that
crimes of passion we need to punish to the fullest extent of
law, and the deterrent factor when you have crimes of passion,
I don't know the effect of the punishment regime. Crimes for
hire, which we've had two cases brought before the committee
where people hired to attack the pregnant woman, shoot her,
beat her to make sure the person doesn't have to pay child
support, there would be a deterrent effect there.
But the whole idea is to do justice, and we can have a
discussion about that, but I do believe very sincerely that the
best way to do justice is to look at this through the eyes of
the families who have lost not only the mother but the unborn
child and to bring the full force and effect of the law on the
perpetrator, and over time, hopefully that will make people
think differently. I hope so. But I know from the justice point
of view that we're falling well short when we just enhance
punishment.
Thank you.
Mr. Watt. Reclaiming my time, Mr. Chairman, my intent was
to speak on this amendment independently, but Mr. Scott's
arguments I think adequately express my sentiments on this. He
has acknowledged that there is a real problem that exists. The
amendment tries to deal with that problem in a way that gets us
outside the context of this whole abortion, when-life-begins
debate and is a reasonable way to deal with it, and I fully
support his amendment.
And I'll yield to Mr. Scott.
Mr. Scott. Thank you. Thank you and I thank the gentleman
for yielding.
I just wanted to respond briefly to comments made by the
gentleman from Ohio when you said that this might complicate
the prosecutions. There is no complication on the prosecution.
If you get complicated and lose your argument on the pregnancy
related, you might lose the enhanced penalty, but you're not
going to lose the underlying conviction. There is no
transformation into abstraction; it's transformed into
additional time that's real time, and I would hope that the
committee would accept this as a logical way to address a
serious problem.
I yield back.
Mr. Watt. And I'll yield the balance of my time to Ms.
Lofgren.
Ms. Lofgren. Thank you.
I--just a note on that amendment. I preferred the earlier
amendment of Mr. Conyers and myself, but I certainly can
support Mr. Scott's amendment for the following reason. It
really actually provides much greater protection for women and
to prevent assaults resulting in miscarriage than does the
underlying bill.
If you read through what the Supreme Court has said about
prenatal status, prior to viability, the States' interest as
expressed by the Supreme Court is less than post-viability.
Under this amendment, even those women whose pregnancy had not
actually progressed to viability would gain protection from
assault that resulted in miscarriage, and I think that is
appropriate because such an assault does tremendous damage and
harm to a woman who is intending and wants to have a child, and
I think this amendment would actually accomplish something that
the underlying bill does not.
I did want to make one additional comment. Someone on the
other side of the aisle suggested that people who are pro-
choice are proponents of abortion. In fact, that is not
correct. I am someone who is pro-choice, someone who believes
that individual women ought to make decisions about their
fertility, not the United States Congress, and that goes in
both directions--women who decide that they need to terminate
the pregnancy and women who decide that they want to have a
child. That's what choice is about, the women's choice, not
Congress' choice.
And I yield back the balance of the time to Mr. Watt.
Chairman Sensenbrenner. The gentleman's time----
Mr. Watt. I yield back.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the amendment in the nature of a
substitute offered by the gentleman from Virginia, Mr. Scott.
Those in favor will say aye.
Opposed, no.
The no's appear to have it, the no's have it and the
amendment is not agreed to.
Are there further amendments?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I would like to ask the sponsor of
the bill a question just to clarify legislative intent.
On page 4 of the bill, on line 7 through 13, you have
essentially exempted from prosecution cases relating to an
abortion for which the consent of the pregnant woman has been
ascertained. On page 4, on line 7 through 13.
Mr. Graham. What was the purpose of that language?
Mr. Scott. And my question is the consent of the pregnant
woman is really a term of art, and I assume it's not your
intention to ensnare a physician--page 4, line 7 through 13--I
assume it is not your intention to ensnare a physician who
violates a parental consent law or something like that, that
you really mean permission of the pregnant woman and not to
have the physician ensnared for a murder charge by having
violated the informed consent law of a particular State. What
is the--is that the intent?
Mr. Graham. Yes. My intent is to make sure that people who
are following the law of the State or the jurisdiction in
question who are performing an abortion as recognized by law
and providing medical treatment not be prosecuted.
Mr. Scott. Okay. My question is if you have someone who has
violated, intentionally or unintentionally, a parental consent
law, so that technically the physician does not have the
consent of the patient, would they be in trouble with their
medical license, civil liability, or would they be looking at a
murder charge?
Mr. Graham. Well, if a person violated a law intentionally
requiring that you not perform an abortion under certain
circumstances without approval of someone else and they didn't
seek that approval, then they basically would be violating--
violating the law.
Mr. Scott. Let me get it directly, then. If you have a 17-
year-old in a parental consent State that lies about her age,
the doctor did not get the consent although he got permission,
would he be looking at a murder charge under this bill?
Mr. Chabot. Would the gentleman yield?
Mr. Scott. I will yield to the gentleman from Ohio.
Mr. Chabot. Thank you for yielding.
There would have to be an underlying Federal offense, a
predicate offense in order for this proposed legislation to
have any effect at all, and unless an underlying Federal
offense has been committed, this would not have any impact
whatsoever.
Chairman Sensenbrenner. The Chair would like to report the
bill before we go and vote. Mr. Conyers kind of feels the same
way, too.
Mr. Scott. I yield back.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on reporting the bill favorably. I'm sure a
rollcall will be demanded, so the Clerk will call the roll.
Those in favor will signify by saying aye; those opposed no.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. Yes.
The Clerk. Mr. Cannon, yes. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
Mr. Scarborough. Aye.
The Clerk. Mr. Scarborough, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
[No response.]
The Clerk. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional members in the
room who desire to cast, change their votes?
The gentleman from Virginia.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Chairman Sensenbrenner. The gentlewoman from Pennsylvania.
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Chairman Sensenbrenner. Anybody else who wishes to record
or change their vote?
If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 9 nays.
Chairman Sensenbrenner. And the motion to report is agreed
to. Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
All members will be given 2 days as provided by House rules in
which to submit additional dissenting, supplemental or minority
views.
The Chair is about ready to recess the Committee until two
o'clock in the afternoon. The remaining bill on the calendar
has strong bipartisan support. I do not believe it will be very
time-consuming and I would encourage all members to return
promptly at two o'clock so that we can finish the business
today and move on.
So without objection, the Committee is recessed until two.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order. The
Chair notes the presence of a working quorum.
The Chair recognizes the gentlewoman from Texas to strike
the last word.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I was detained at the Capitol as you were voting on H.R.
503. Prior to the final vote, I would have offered an amendment
that I had at the desk dealing with striking the language ``of
unborn children''' and inserting ``against violence during
pregnancy.''' I hope to be able to offer that amendment to the
Rules Committee which I believe is a fair compromise that
protects a woman who may have destructive conduct of not eating
or not taking the appropriate medication, that that individual
would not be subject to H.R. 503.
I hope my colleagues will join in the support of the
amendment that I would offer at the Rules Committee, but at
this time, Mr. Chairman, I would like to submit into the record
a statement on that amendment. I ask unanimous consent to
submit that statement into the record.
Chairman Sensenbrenner. Without objection.
[The amendment to H.R. 503 offered by Ms. Jackson Lee
follows:]

Ms. Jackson Lee. And I would like to have noted for the
record in my absence for the final vote that if I had been
present, I would have voted no for H.R. 503.
Chairman Sensenbrenner. Without objection, the statement
will----
Ms. Jackson Lee. I yield back. Thank you, Mr. Chairman.
Chairman Sensenbrenner. Pursuant to notice, the next----
Ms. Jackson Lee. Thank you, Ranking Member.
Dissenting Views

Acts of violence against women, especially pregnant women,
are tragic and should be punished appropriately. However, we
must oppose H.R. 503, the ``Unborn Victims of Violence Act of
2001,'' because, as drafted, the bill will diminish, rather
than enhance, the rights of women and do little to protect
pregnant women from violence.
H.R. 503 would amend the Federal criminal code and the
Uniform Code of Military Justice to create a new Federal crime
for bodily injury or death of an ``unborn child'' who is ``in
utero''--defined as ``a member of the species homo sapiens, at
any stage of development, who is carried in the womb.'' H.R.
503 creates an offense that would occur when one or more
enumerated Federal crimes have been committed and the ``death''
or ``bodily injury'' to the fetus occurs. There is no
requirement of knowledge or intent to cause such death or
bodily injury. The bill includes a penalty that is ``the same
as the punishment provided under Federal law . . . had that
injury or death occurred to the unborn child's mother,'' except
that the death penalty shall not be imposed. The woman carrying
the pregnancy is specifically exempt from prosecution under the
bill, as are medical professionals who perform consensual
abortions or emergency medical treatment.\1\ (The bill is
identical to legislation considered last Congress, H.R. 2436,
which passed the House, but was not taken up in the Senate.)
---------------------------------------------------------------------------
\1\ Georgetown Law Professor Peter Rubin expressed some concern
that this language may be too narrowly tailored to pass constitutional
scrutiny because it is unclear whether, as drafted, the exception would
apply to an abortion for which parental consent was not obtained, but
which had been approved through a judicial bypass. See Written
Testimony of Peter J. Rubin, Hearing on H.R. 503 before the Subcomm. on
Const, House Jud. Comm, March 15, 2001 [hereinafter, ``March 15, 2001
Hearing''].
---------------------------------------------------------------------------
H.R. 503 is unanimously opposed by groups concerned about
protecting a woman's right to choose and opposed to domestic
violence, including the National Abortion and Reproductive
Rights Action League, Planned Parenthood Federation of America,
National Abortion Federation, National Women's Law Center,
National Partnership for Women and Families, Center for
Reproductive Law and Policy, American Civil Liberties Union,
Feminist Majority, American Association of University Women,
National Family Planning and Reproductive Health Association,
American Medical Women's Association, National Coalition
Against Domestic Violence, National Council of Jewish Women,
National Organization for Women, Physicians for Reproductive
Choice and Health, and People for the American Way.
On its face, this bill could be seen as an attempt to
protect pregnant women from assault and to provide prosecutors
with another tool to punish those who cause the non-consensual
termination of a pregnancy. On closer examination, however, it
appears that the use of words such as ``unborn child,''
``death'' and ``bodily injury'' merely inflame the debate, and
the bill sets the stage for an assault on Roe v. Wade \2\
through the legislative process by treating the fetus as a
person, distinct from the mother. Because we believe that this
same bill could be written in a way that would not undermine
Roe, and for the other reasons set forth herein, we are
compelled to dissent.
---------------------------------------------------------------------------
\2\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------

I. H.R. 503 Will Undermine the Rights of Women

Our principal concern is that H.R. 503 represents an effort
to endow a fetus with rights--such as recognition as a crime
victim--and to thus erode the foundational premise of Roe. If
passed, this bill would mark the first time that our Federal
laws would recognize the fetus, and earlier stages of
gestational development, as a person, a notion that the Roe
Court considered but rejected. Aside from this general concern,
there is the real threat that this bill will spur the anti-
choice movement to use this bill as a building block to
undermine a woman's right to choose.
The threat to Roe v. Wade could not be more clear. In Roe,
the Court recognized a woman's right to have an abortion as a
privacy right protected by the Fourteenth Amendment. In
considering the issue of whether a fetus is a ``person,'' the
Court noted that, except in narrowly defined situations, and
except when the rights are contingent upon live birth, ``the
unborn have never been recognized in the law as persons in the
whole sense'' and concluded that `` `person,' as used in the
Fourteenth Amendment, does not include the unborn.'' \3\ In the
28 years since Roe, the Supreme Court has never afforded legal
personhood to a fetus.\4\
---------------------------------------------------------------------------
\3\ Id. at 158.
\4\ The Court has only twice been asked to uphold a state's
determination that a fetus was an ``unborn child,'' and in both cases,
the Court declined to do so. See Burns v. Alcala, 420 U.S. 575 (1975)
(an ``unborn child'' is not a ``dependant'' for purposes of AFDC
benefits); Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
(holding that a Missouri law which afforded legal protection to
``unborn children'' was merely rhetorical and not ``operative'' because
it was a statement of principle, and was not actually being applied; as
such, the Court never addressed the merits of the constitutionality).
---------------------------------------------------------------------------
These concerns were strongly echoed by the Clinton Justice
Department last Congress. In a letter to the Committee
regarding the predecessor version of the bill, the Department
wrote: ``[I]dentification of a fetus as a separate and distinct
victim of crime is unprecedented as a matter of Federal statute
. . . such an approach is unwise to the extent it may be
perceived as gratuitously plunging the Federal Government into
one of the most--if not the most--difficult and complex issues
of religious and scientific consideration and into the midst of
a variety of State approaches to handling these issues.'' \5\
Indeed, other observers have parsed through the rhetoric and
assessed the political motivations behind this bill, with a New
York Times editorial stating that the legislation ``treats the
woman as a different entity from the fetus--in essence raising
the status of the fetus to that of a person for law enforcement
purposes--a long time goal of the right-to-life movement.'' \6\
---------------------------------------------------------------------------
\5\ Letter from Jon P. Jennings, Acting Assistant Attorney General,
September 9, 1999.
\6\ New York Times, September 14, 1999 at A30.
---------------------------------------------------------------------------
We are also deeply concerned that the bill's underlying
theory of fetal personhood would establish a dangerous
precedent that could result in women and their physicians being
targeted for criminal prosecution in the future. Specifically,
the pregnant woman could be placed in a position that is
directly at odds with, or subordinate to, her fetus. For
example, a future statute might require a woman to be
prosecuted for any act or ``error'' in judgement during her
pregnancy that results in harm to the fetus, including violence
perpetrated on her by her batterer under a ``failure to
protect'' theory.\7\ Current laws requiring warning labels on
wine and cigarettes could be used, by extension, as a basis to
restrain or prosecute women who smoke or drink during
pregnancy.\8\
---------------------------------------------------------------------------
\7\ Prosecutions of this type have already been brought at the
State level. South Carolina now prosecutes women whose babies are found
to have drugs in their systems. Whitner v. State, 492 S.E.2d 777 (S.C.
1997), cert. denied, 523 U.S. 1145 (1998). In one case, a court ordered
into custody a pregnant woman who refused medical care because of her
religious convictions, in an attempt to ensure that the baby would be
born safely. National Public Radio, Pregnant Woman Being Forced Into
Custody at a State Medical Facility in Massachusetts to Ensure That
Here Baby is Born Safely, (Sept 14, 2000). In another case, a court
sent a student to prison to prevent her from obtaining a midterm
abortion. Reuters, Judge Intends Prison Time to Block Abortion (Oct.
10, 1998).
\8\ A woman could also conceivably be held liable for any behavior
during her pregnancy having potentially adverse effects on her fetus,
including failing to eat properly, using prescription, nonprescription
and illegal drugs, exposing herself to infectious disease, to workplace
hazards, or engaging in immoderate exercise or sexual intercourse,
residing at high altitudes for prolonged periods, or using general
anesthetic or drugs to induce rapid labor during delivery. Pregnant
women would live in constant fear that any accident or ``error'' in
judgment could be deemed ``unacceptable'' and become the basis for a
criminal prosecution by the state or a civil suit by a disenchanted
husband or relative. When expanded to cover fetuses, child custody
provisions could be used as a basis for seizing custody of the fetus to
control the woman's behavior, or in some cases, civilly committing a
pregnant woman to ``protect'' her fetus.
---------------------------------------------------------------------------
As Juley Fulcher, the Public Policy Director of the
National Coalition Against Domestic Violence testified:

This bill would, for the first time, federally
recognize that the unborn fetus could be the victim of
a crime. It would not be a large intellectual leap to
expand the notion of unborn fetus as victim to other
realms. In fact, some states have already made that
leap and, in those states, women have been prosecuted
and convicted for acts that infringe on state
recognized legal rights of a fetus.\9\
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\9\ Written Testimony of Juley Fulcher, March 15, 2001 Hearing.

Indeed, the true goal of the legislation is belied by the
extreme rhetoric of the sponsors and its proponents in the
anti-choice community. For example, last Congress, then-
Chairman Hyde explained during full committee markup that,
under this bill, ``finally there will be a Federal law that
recognizes that the [fetus] is not a `nothing.' '' Moreover,
two of the Majority's subcommittee hearing witnesses, Hadley
Arkes (a Professor at Amherst) and Gerard Bradley (a Professor
at Notre Dame Law School), explicitly linked the bill to the
abortion debate through their testimony. Perhaps most candidly,
Mr. Arkes noted that the bill ``would find its fuller
significance when Congress finally puts into place the
understanding that there are limits to the right of abortion. .
. .'' \10\ This year, in a letter to Members, the National
Right to Life Committee has again written that the bill is
necessary to establish that a crime against a pregnant woman
involves two human lives.\11\ In addition, the fact that in
each of the last two Congresses the bill was referred to the
Constitution Subcommittee, rather than the Crime Subcommittee,
would seem to reveal the Majority's true intent to craft an
abortion bill and not a crime bill.\12\
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\10\ Hearing on H.R. 2436 before the Subcomm. on Const, House Jud.
Comm, July 21, 1999. At 46 (Statement of Harley Arkes.)
\11\ In criticizing the Lofgren/Conyers amendment, the group
argued: ``Such a `one-victim' amendment would codify the fiction that
when a criminal assailant injures a mother and kills her unborn child
there has been only a compound injury to the mother, but no loss of any
human life. The one-victim substitute would also enact the notion that
when a criminal assailant kills a pregnant woman, the assailant should
be punished once for killing the mother and then again for depriving
her of her `pregnancy'--but if there is only one victim, it is
difficult to see why this would not be a duplicative criminal charge,
since legally speaking a woman who has been killed can hardly suffer an
additional `loss.' '' Letter from Douglas Johnson, Legislative
Director, and Patricia Coll, Legislative Assistant, National Right to
Life Committee, Inc., March 12, 2001.
\12\ When Representative Scott inquired as to why H.R. 2436, last
Congress' version of the bill, was assigned to the Constitution
Subcommittee, rather than the Crime Subcommittee since it purported to
involve the criminal law, he was informed by Chairman Hyde that the
assignment was ``arbitrary.'' Judiciary Committee Markup, September 14,
1999.
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II. The Legislation Ignores the Very Serious Problem of Domestic
Violence

As the bill reported by the Committee stands, when a crime
is committed against a pregnant women, the focus is no longer
on the woman victimized by violence. Instead, the legislation
switches our attention to the impact of the crime on the
pregnancy--diverting the legal system away from domestic
violence or other violence against women.
If the sponsors of H.R. 503 were truly concerned with the
problem of violence against women, they would support full
funding of the Violence Against Women Act of 2000
(``VAWA'').\13\ The problem of violence against women, and
specifically violence against pregnant women and women who have
given birth within the previous year, is all too real; with the
Journal of the American Medical Association recently finding
that homicide was the leading cause of death among pregnant, or
recently pregnant, women.\14\
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\13\ Pub. L. No. 106-386 (2000). VAWA provides funding for domestic
violence shelters, victim services, training for law enforcement
personnel, and many other programs at the state and local level that
help to prevent and deal with violence against women, regardless of
their pregnancy status. Since the original Violence Against Women Act
was passed in 1994, there has been a 21% decrease in intimate partner
violence. Bureau of Justice Statistics: Special Report ``Intimate
Partner Violence,'' by Callie Marie Rennison, Ph.D. and Sarah Welchans
(BJS Statisticians), May 2000.
\14\ I.L. Horon, V. Chung, Enhanced Surveillance for Pregnancy-
Associated Mortality--Maryland, 1993-1998, 285 JOURNAL OF THE AMERICAN
MEDICAL ASSN. 1455 (March 21, 2001); Victoria Frye, Examining
Homicide's Contribution to Pregnancy-Associated Deaths, id. at 1510-
1511; S. Martin, L. Mackie, L. Kupper, P. Buescher, Moracco, Physical
Abuse of Women Before, During, and After Pregnancy, id. at 1581. In
contrast, homicide was the fifth leading cause of death among non-
pregnant women during the same time period. Homicides made up 20% of
all pregnancy-associated deaths, more than twice as many deaths as
embolisms, which comprised 9% of pregnancy-associated deaths.
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The funding deficit for VAWA is also far too real. For
example, although VAWA authorized over $677 million to be spent
on programs to combat domestic violence and sexual assault in
fiscal year 2001, the amounts appropriated in the 2001 budget
are more than $200 million short of the authorization levels.
Moreover, although VAWA authorized $235 million for the STOP
Grant program, less than $210 million was appropriated for this
purpose. Thus, even though VAWA authorized an increase in
funding, in real terms, there actually was less money
appropriated for STOP Grants than there was 3 years ago.
Furthermore, last year there was no money appropriated for
new programs created by the VAWA reauthorization legislation.
This includes programs that were proposed and passed on a
bipartisan basis by this very Committee--such as protections
for older and disabled women, education and training for judges
and court personnel, the domestic violence research task force,
and supervised visitation centers. Yet H.R. 503 totally ignores
this problem in a headlong effort to politicize the abortion
issue. Sadly, when an amendment to provide for full funding of
VAWA was offered by Rep. Conyers, it was defeated by the
Majority in a party line vote.

III. The Legislation Raises Additional Constitutional Concerns

In addition to the concern that the bill may run afoul of
Roe v. Wade, several additional constitutional concerns exist
with H.R. 503 as it is presently drafted.
A critical problem is that key provisions of the bill are
written so vaguely as to be potentially constitutionally
``void'' or violative of due process.\15\ The principal problem
is the uncertainty regarding the meaning of the bill's scope,
namely its application to an ``unborn child'' defined as ``a
child, who is in utero,'' which in turn is defined as ``a
member of the species homo sapiens, at any stage of
development, who is carried in the womb.'' \16\ The broadest
interpretation would apply to zygotes (fertilized eggs) formed
immediately after conception. A slightly narrower
interpretation would apply to blastocysts which have not yet
been implanted in the uterine wall. And an even narrower
interpretation would limit the bill's scope to embryos or
fetuses after they have been implanted. It is because of these
concerns that Georgetown Law Professor Peter J. Rubin has
written:
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\15\ Another possible vagueness concern is presented by the bill's
broad definition of `bodily injury'' in that it raises questions as to
how the sponsors intend to account for such speculative criteria as
``fetal pain.''
\16\ Supporters of the legislation argue that the bill uses the
same definition as the ``Innocent Child Protection Act of 2000'' which
prohibited the execution of pregnant prison inmates, and passed the
House by a vote of 417-0-2. The language in that bill defined ``a child
in utero'' as ``a member of the species sapiens, at any stage of
development, who is carried in the womb.'' There are several problems
with this argument. First, the language in that bill was based on the
predecessor version of this bill, not vice versa. According to Rep.
Pitts, ``H.R. 4888's definition of `child in utero' (`a member of the
species sapiens, at any stage of development, who is carried in the
womb') was taken verbatim from the Unborn Victims of Violence Act (H.R.
2436).'' Congressional Record, July 25, 2000, H6797 (Statement of Rep.
Joseph Pitts). In addition, that bill skipped Committee and was taken
up on suspension and therefore never offered Members the opportunity
for clarifying amendments. Finally, the Innocent Child Protection Act
does not operate to apply criminal penalties, so the need for clarity
and specificity is far less.

[The bill's use] of the phrase ``child, who is in
utero'' may give a defendant an argument that the
statute is ambiguous, and that he lacked the notice of
what acts are criminal that is required by the Due
Process Clause of the Fifth Amendment. (See, e.g.,
Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).)
\17\
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\17\ Written Testimony of Peter J. Rubin, March 15, 2001 Hearing.

The legislative process has done little to elucidate the
meaning of the phrases ``child in utero,'' and ``unborn
child.'' For example, during full committee, when Rep. Nadler
asked ``[d]oes it [i.e., `unborn child'] mean from the time of
conception or does it mean from the time of implantation or
does it mean from some other time?'' Rep. Graham, the bill's
lead sponsor, responded: ``if it's not carried in the womb,
then it would be no crime,'' without clarifying to what stage
of development this term referred.\18\
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\18\ Also, during a line of questioning by Rep. Nadler during the
legislative hearing on H.R. 503, he asked what the words ``who is
carried in the womb'' mean, Mr. Myers, a Majority witness who does not
support the Supreme Court decision in Roe, replied ``I am not sure that
adds anything. In fact, I think it may be better to take that clause
out.'' March 15, 2001 Hearing (transcript at 68).
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Concerns have also been raised that H.R. 503 may lack a
mens rea requirement \19\, and thereby run afoul of the
Constitution's due process mandate that criminal laws require
the perpetrator must have a criminal intent.\20\ This is
because under H.R. 503, a person may be convicted of the
offense of harm to a fetus even if he or she did not know, and
had no reason to know, that the woman was pregnant. The problem
is compounded by the fact that the bill does not even require
that the predicate offense of a crime against the woman be
first established in a court of law.\21\
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\19\ In fact, the bill explicitly disavows a mens rea requirement,
providing that: ``An offense under this section does not require proof
that . . . the person engaging in the conduct had knowledge that the
victim of the underlying offense was pregnant . . . or the defendant
intended to cause the death of, or bodily injury to, the unborn
child.''
\20\ See New York v. Ferber, 458 U.S. 747, 765 (1982) (holding
that, except in a small class of public welfare cases, ``criminal
responsibility . . . not be imposed without some element of scienter
(intent) on the part of the defendant.'' See also Liporta v. United
States, 471 U.S. 419, 426, (1985) (``[C]riminal offenses requiring no
mens rea have a generally disfavored status.'' (internal quotations
omitted)); Staples v. United States, 511, 605 U.S. 6000 (1994) (``The
contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and
persistent in mature systems of law as belief in freedom of the human
will and a consequent ability and duty of the normal individual to
choose between good and evil.'' quoting Morisette v. United States, 342
U.S. 246, 250 (1952).
\21\ The sponsors of H.R. 503 rely on the criminal law doctrine of
transferred intent, which transfers the malevolent intent which the
perpetrator of a crime harbors and acts upon against a pregnant woman,
to her fetus. However, H.R. 503's application of the transferred intent
doctrine may prove to be difficult to apply because, as noted supra,
under Roe the fetus is not considered a person in the constitutional
sense.
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A related concern is that H.R. 503 may present needless procedural
and evidentiary difficulties in prosecuting offenders under laws
already on the books. Under the bill, if a separate offense is charged
on behalf of the fetus, as opposed to a single offense brought on
behalf of the pregnant woman under current law, the case would have to
be presented to a grand jury and charged separately. Each element of
the separate offense must be proven beyond a reasonable doubt. As such,
the procedural complexity and questionable constitutional basis for
this bill may dissuade prosecutors from bringing charges in such cases.

IV. A Preferable Legislative Alternative is Available

Finally, we oppose H.R. 503 because a far more effective
alternative is available, which discourages crimes against
pregnant women without undermining Roe v. Wade or otherwise
running afoul of the Constitution. Such an alternative is
embodied in the Lofgren/Conyers substitute, which received 201
votes on the House Floor in the 106th Congress. This substitute
was again offered at the Committee markup this year and
rejected along a party line vote.
The Lofgren-Conyers substitute includes the following
elements: (1) it creates a separate Federal criminal offense
for harm to a pregnant woman, which protects the legal status
of a woman; (2) it recognizes the pregnant woman as the primary
victim of a crime that causes termination of a pregnancy; (3)
it includes exactly the same sentences for these offenses as
does the base bill, providing for a maximum 20 year sentence
for injury to a woman's pregnancy, and a maximum life sentence
for termination of a woman's pregnancy; and (4) it requires a
conviction for the underlying predicate offense, thereby
requiring that intent to commit the predicate offense be
proven.
Perhaps the most important manner in which the substitute
differs from H.R. 503 is that the Lofgren/Conyers substitute
defines the crime to be against the pregnant woman, whereas
H.R. 503 makes the crime against the fetus, in utero. This
distinction is a critical one, because the Substitute avoids
the issues of ``fetal rights'' and ``fetal personhood'' that
put the bill at odds with the principles of Roe v. Wade.
Instead, the Lofgren/Conyers substitute recognizes that it
is the woman who suffers the injury when an assault causes harm
to her fetus or causes her to lose the pregnancy. The
substitute also acknowledges the interconnectedness of the
woman and her fetus, without distinguishing the rights of one
from the other. The substitute therefore accomplishes the
stated goals of H.R. 503, deterring violent acts against
pregnant women that cause injury to their fetuses or the
termination of a pregnancy. However, unlike H.R. 503, the
substitute does so in a way that avoids the controversial
issues of abortion and the right to choose.

Conclusion

It is unfortunate that the Majority's goal of averting
violence against women and their developing pregnancies is
secondary to their goal of undermining the reproductive rights
of women. Rather than seeking to score points in the abortion
debate, we invite the Majority to join us in crafting
legislation that protects women and mothers from violence that
threatens all those under their care. Because it is impossible
to harm a developing pregnancy without causing harm to the
woman, we would be better served by laws that protect women,
pregnant and non-pregnant alike, from violence. Instead of
moving toward the laudable goal of enhancing the welfare of
mothers, H.R. 503 lays the groundwork for governmental
intervention into their bodies and their reproductive choice.

John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Tammy Baldwin.
Anthony D. Weiner.