U.S. House of Representatives

Committee on the Judiciary, Subcommittee on the Constitution

Hearing on H.R. 1997, The Unborn Victims of Violence Act or Laci and Conner’s Law

July 8, 2003

Testimony of Gerard V. Bradley

Professor of Law, University of Notre Dame

            I am grateful to the Subcommittee for this opportunity to address the constitutionality of the Unborn Victims of Violence Act of 2003, also known as “Laci and Conner’s Law.” [Hereafter, “Act”.]

            The first question about the constitutionality of the Act is not whether it violates any right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade. That would be the first question were we talking about a bill in a state legislature. The first question when looking at proposed federal legislation is whether some power enumerated in the Constitution authorizes Congress to act. The national government possesses no general police power to prohibit private violence. That is, basically, a job for the states. Especially in light of the recent revival of judicially enforceable limits upon Congress’s commerce power – see U.S. v. Lopez - and the narrow reading of Congress’s “enforcement” power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, one might doubt Congress’s power to protect unborn children from private violence.

            There is no question. The Act does not engage these recent developments. There is no doubt of its constitutionality lurking in the so-called “new federalism”, as found (for example) in the Violence Against Women Act case, U. S. v. Morrison.

            Why is there no question about Congress’s affirmative power to pass the Act? Because the Act does not extend Congress’s reach; no primary conduct which is presently free of federal regulation will be regulated if the Act becomes law. No conduct which was lawful is to be unlawful; no conduct which was legal is to be illegal.

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

            The Act relies upon established criminal law principles of transferred intent to add a new offense to an already criminal act. The basic idea is simple: a bad actor with the requisite malice to, in the language of the bill, “violate [] any of the provisions of law listed in subsection (b)”, may be charged with an additional violent offense. Some persons might object to this feature of the Act, saying it unfairly penalizes a criminal for the possibly unforeseeable effects of his acts. I grant that in some cases an assailant charged under this Act might not know that his victim is pregnant. But I deny that it is unfair to treat this assailant as the Act would. Our hypothetical assailant is treated like all other criminals, who are obliged to take their victims as they find them.

            The classic expression of this common feature of criminal liability is the “egg-shell skull” rule. Consider A and B, who knock C and D, respectively, over the head with a glass. C is a veteran boxer, and is scarcely dazed. A is thus guilty of, at most, misdemeanor assault and gets a conditional discharge. D has a plate in his head due to an old sports injury, and dies from a brain hemorrhage. B is guilty of homicide, probably manslaughter, and goes to jail for a long time.

            This established principle also illustrated in felony murder statutes, where the malice manifested in the commission of a felony is transferred to what may even be an accidentally caused death. So, for example, an arsonist who honestly believes the building he torches is unoccupied is nonetheless indictable for felony murder if, by chance, someone is inside, and is killed.

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

            Someone might object that the Act, because it protects a child in utero to practically the same extent as other persons, is somehow inconsistent with Roe or its progeny. Is there no difference, the objection might hold, between this Act and a flat Congressional declaration that the unborn are persons? And is not that declaration inconsistent with Roe?

            The answer to this challenge would very likely have to be yes if the Supreme Court in Roe or some other case held that the unborn are not persons. But the Court has never so held. The Roe court said that it did not “need [to] resolve the difficult question of when life begins” (410 U.S. at 159). The Court there said the “the judiciary...is not in a position to speculate as to the answer.” (Id.) In no general or broad way, moreover, did the Court hold that the states or the Congress operated under a similar disability. All that the Court held in this regard was that Texas “could not override the rights of the pregnant woman by adopting an answer to the question of when life begins.” (See 410 U.S. at 162). But this Act does not affect, much less “override,” the rights of any pregnant woman. The Roe court opined that the unborn were not to be considered persons in the “whole” sense, an opinion consistent with treating the unborn as persons for some purposes, like inheritance, tort injury, and (here) third party assaults.

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

            A final word about this Act’s treatment of assaults upon pregnant women, in comparison with the leading alternative: enhanced punishment for (what would remain) a single count of assault. I surely agree with the central notion of the alternative (a notion entirely consistent with this Act), that a mother suffers grievously with the injury or death of her child. This loss is particularly acute where the child is killed by a criminal act. But the criminal law does not generally treat crimes against children as aggravations of an accompanying crime against a parent. (Think of the case where a single violent act, such as planting a bomb or starting a fire, kills an entire family.) For each victim, a distinct count, complete unto itself, for the injury or death of that particular individual is the norm.

            The facts to which this Act would apply are these: a woman carries a child in utero, and does not seek an abortion. For all the world can see, she considers that child her baby, to be treated as such by everyone: her doctors, her family, the law. Upon that child’s death she suffers, too, of course, but does she suffer more, or differently, than the woman who loses a newborn to a crime? A toddler? Who is to say? Is there any general answer?

            My point is not that a simple enhancement of punishment is unconstitutional. But I do think this Act’s approach – separate victims, separate counts, and thus additional punishment – is much more in line with the normal operation of criminal law principles than is the leading alternative.