WHY THE SENATE SHOULD REFUSE EVEN TO CONSIDER THE UNBORN VICTIMS OF VIOLENCE ACT OF 2001

On April 26, the U.S. House of Representatives passed a bill called the "Unborn Victims of Violence Act of 2001" (UVVA). This legislation, if enacted, would specifically criminalize killing or injuring an "unborn child" during the commission of a separate federal crime.

The language of the bill defines "unborn children" as members of the human species who reside in their mothers' wombs, regardless of their developmental stage. The bill provides further that the penalty for committing this offense against the unborn child is the same as it would have been "had that injury or death occurred to the unborn child's mother," with the caveat that the death penalty may not be imposed.

Significantly, the bill exempts from its coverage the provision of an abortion with the pregnant woman's consent, and it bars prosecution of women for harming their own unborn children.

The upshot is that if a person (other than the pregnant woman) commits one of a list of federal crimes, and a pregnant woman's fetus or embryo is killed in the process, the perpetrator will be punished as if he had killed an adult. Multiple pregnancies could presumably result in multiple homicide prosecutions.

Not surprisingly, proponents of the UVVA are largely "pro-life" advocates who would happily dispense with the abortion exemption if the Supreme Court were willing to overturn Roe v. Wade. Also not surprisingly, those who support a woman's right to reproductive choice oppose the bill and consider it a "sneak attack" on abortion rights.

That is because the bill invites us to begin to think of embryos and fetuses —at least in one particular context — as if they were legally equivalent to adult persons, and precisely equal, in legal right, to their mothers.

Some argue that if this legal equivalence were accepted more generally, it would plainly forbid abortions. On this argument, a pregnant woman could no more "kill" her fetus or embryo legally than she could murder her sister. And if a pregnant woman did "kill" her embryo, the proper penalty would be as great as if she had murdered her sister.

In reality, as I argued in an earlier column, "The Frozen Embryo Analogy," the proposition that a fetus is a person does not logically or morally rule out a robust right to abortion. Even a full person is not entitled to survive by forcing another person to undergo the pain, risk, and bodily intrusion that are the essence of an unwanted pregnancy.

For example, though a woman (such as Jane Doe) can ask, she cannot require her sister (Joan Doe) to give up a kidney or undergo a bone marrow transplant in order to save Jane's life. Similarly, a fetus or embryo cannot require its mother to carry a pregnancy to term in order to ensure its live birth.

Thus, someone who supports the UVVA — believing the fetus or embryo to be a person and believing that assaulting a pregnant woman is thus doubly wrong — could still, in theory, support a woman's right to abortion.

Perhaps because of the salience of abortion politics surrounding this legislation, public debate has not focused on another important and troubling feature of the UVVA: It expressly states that to be guilty of violating this criminal statute, it need not be the case that an offender knew, or even should have known, that his victim was pregnant.

Consider the following illustration. A man shoves a woman to the ground in a jurisdiction subject exclusively to federal, not state, law (such as a military base). Though neither the assailant nor his victim knows it, the woman is three weeks pregnant. As a result of the assault, she miscarries. Without a question, the man is guilty of an assault and battery against her. Under the proposed UVVA, though, he would also be guilty of homicide against the fetus — a separate crime that he could not have known he was committing.

Criminal liability for unforeseeable harm is not unique to the UVVA. Felony-murder statutes and victim-impact statements at sentencing hearings can operate in a similar manner.

In the case of felony-murder, a person commits one of a specified class of felonies (for example, armed robbery), and somehow, often indirectly, the felony results in a death. The felon is deemed guilty of murder in connection with that death — regardless of whether he possessed "mens rea," or a guilty state of mind.

Normally, murder is a crime one must intentionally or knowingly commit. But not for the "felony-murderer." Suppose, for example, that an offender commits armed robbery with an accomplice. The accomplice and security guard exchange fire, and the accomplice dies. Now the offender is guilty of felony-murder — even if he did not intend, plan, or foresee his accomplice's death.

When victim-impact statements are admissible in court, liability for unforeseeable harm can also, similarly, be imposed. A judge or jury considering how harshly to sentence a murder defendant, for example, can hear from the victim's friends and family about the devastating effects they have suffered from the murder — even if the defendant was a complete stranger to the victim, and had no idea that the victim had friends or family. Indeed, in Payne v. Tennessee, the Supreme Court held that the death penalty may be imposed on the basis of such testimony.

In the cases of felony-murder and victim-impact statements, as in the case of the UVVA, the perpetrator need not have had reason to know of all the harmful consequences that would result from his crime. It might indeed have been the hope and expectation of the offender to avoid any such collateral damage. Nonetheless, we hold the offender responsible for these consequences, because he acted wrongfully and, in the process, caused harm.

This is sometimes the law's approach to civil suits, too. For example, an "egg shell" plaintiff (such as a hemophiliac whose bleeding cannot be stopped) might be able to recover for even those injuries that would not have occurred absent the plaintiff's special vulnerability. He can do so, moreover, even if the vulnerability was unknown and unforeseeable to the defendant.

It may seem logical to extend this principle of "egg-shell" victims to the criminal law and argue that anyone who commits a crime "assumes the risk" that unexpected harms and injuries will result.

A bank robber acts culpably; perhaps he should not be heard to complain when he is held responsible for deaths that come about because of his crime. Killers do evil; should they not bear responsibility for the pain their victims' deaths cause to unseen loved ones and dependents? Finally, one who assaults a woman who consequently miscarries a pregnancy has, through his own actions, rendered himself a culpable causal agent in that harm.

But there is another side to this debate. Holding a criminal responsible for unforeseen (but predictable) harms is often appropriate. But if the harms were not foreseeable at all, then punishing someone for them, based purely on the fact that he unwittingly caused them, waters down the moral force of the criminal law by attributing culpability where there is none.

There are two basic justifications for punishing crime, one utilitarian and one retributive. The utilitarian rationale says that we punish crime in order to deter the offender and others from committing similar acts, and to incapacitate dangerous individuals. Punishing for an unforeseeable outcome does not serve these objectives.

Punishing for the unforeseeable harm will not deter, because one cannot avoid what is unforeseeable. And with respect to incapacitation, offenders who wreak unforeseeable harm are no more dangerous than the overwhelming majority of convicts, the harm of whose crimes was entirely foreseeable.

The retributive rationale says that we punish people because they deserve punishment for the evil that they have done. But if the offender could not have predicted (and therefore was not even negligent with respect to) the harm for which he is separately condemned, then he does not deserve that extra punishment and condemnation.

One might find it difficult to accept these arguments, because the harm in so many of these cases is foreseeable. When a harm is foreseeable, but not intended, there is no injustice in holding the culpable actor accountable.

Consider, for example, prosecutions for vehicular manslaughter, in which the driver was intoxicated but did not deliberately kill his victim. It is fair to attribute to the driver the harm that did in fact occur, because it is precisely the risk of such harm that renders his conduct reckless and wrongful in the first place.

So too the bank robber charged with felony-murder based on his accomplice's death. He should have known that his conduct posed a serious risk that someone would die. It is no accident that armed robbery, like the other felonies that qualify a resulting death for felony-murder status, tends to involve violent force and threats of violence.

Similarly, any killer can predict that his victim is very likely to have family members and close friends who will suffer deeply from the crime. Thus, it is fair to allow their victim impact statements to play a part in determining his punishment.

Now let us return to the man who shoves the secretly pregnant woman on the military base to the ground, causing her miscarriage.

Assume that he shoved her because she mocked him for wearing glasses and then took his glasses and broke them in half (a provocation that does not excuse his assault but that does make the defendant somewhat more sympathetic). Assume also that his shove is not especially severe, but that the victim happens to lose her balance and hit the ground hard. Or even assume, to the contrary, that he does shove her hard, and without provocation.

In any of these situations, it would seem grossly disproportionate to charge this man with homicide of the fetus, when he had no way of knowing that his victim was pregnant.

By protecting the unborn child at "any stage of development," and by failing to impose even a negligence requirement with respect to fetal harm, the UVVA precisely targets the unforeseeable fetal injury. A woman in her seventh month of pregnancy provides clear notice to onlookers that she is pregnant; a woman in her third week does not. Yet causing either to miscarry is, under the UVVA, equally deemed a homicide.

This feature of the UVVA is no oversight. Rather, strict liability (that is, liability regardless of mental state) is a central feature of the bill. Indeed, the bill specifically excludes from its penalty coverage the defendant who deliberately kills or attempts to kill the unborn child; punishment of such defendants is left to other statutory sections. The UVVA thus targets the inadvertent killer.

Deliberately assaulting a woman is wrong. It is wrong not because the woman might possibly be carrying a pregnancy, but because she has a right to bodily integrity and security that the offender violates by assaulting her.

Absent knowledge, recklessness, or even negligence with respect to an extant pregnancy, the fact of fetal harm is irrelevant to why the assailant has acted wrongfully. Since the UVVA willfully disregards this irrelevance, the newly Democratic Senate should refuse to consider it in its current form.