Testimony of Richard S. Myers

Professor of Law, Ave Maria School of Law, Ann Arbor, Michigan

The Subcommittee on the Constitution of the

Committee on the Judiciary, U.S. House of Representatives

Hearing on H.R. 503 "Unborn Victims of Violence Act of 2001"

March 15, 2001

I am pleased to address the question of the constitutionality of the Unborn Victims of Violence Act of 2001. [Hereinafter, "Act".]

The first question that needs to be addressed concerning the constitutionality of the Act is not whether it violates a right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). That would be the first, and only interesting, question if a government with the power to legislate for the general welfare (or put differently if a government that possessed a general police power) passed a law like this Act. Our state governments have such power and more than half the states have effectively done so, either by separate enactment or by subsuming harm to the unborn within homicide protections of murder or manslaughter. As I'll discuss in more detail below, courts throughout the country have found these laws to be compatible with the right articulated in Roe.

Our Constitution creates a Federal Government of enumerated powers. Of course, the scope of congressional power pursuant to its delegated powers (particularly the commerce power and the spending power) is quite broad. Despite this, it remains true, as the structure of the Constitution and the 10^th Amendment attest, that Congress does not have unlimited power to legislate in what it perceives to be the national interest. And, recent cases make it clear that there are judicially enforceable outer limits on the scope of the commerce power. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). Congress possesses no general power to protect persons, including unborn persons, against private violence. The Fourteenth Amendment does guarantee to all "persons" the "equal protection" of the laws, including state laws against assault and homicide. And, Section 5 of the Fourteenth Amendment grants Congress the power to enforce this substantive guarantee by enacting "appropriate legislation," although this congressional enforcement authority has recently been given a rather narrow interpretation. See Board of Trustees v. Garrett, 2001 U.S. Lexis 1700 (February 21, 2001); City of Boerne v. Flores, 521 U.S. 507 (1997). On appropriate findings by Congress that some identifiable class of persons - say, a racial or ethnic minority, or a particularly vulnerable and politically powerless group, like the infirm or unborn - is, on a widespread basis, unequally exposed to private violence by exclusion from, or lax enforcement of, state homicide laws, direct federal protection against such discrimination would be constitutional.

With this as background, the first question is whether there is an enumerated power that authorizes the Act. With the recent revival of judicially enforceable limits upon Congress's commerce power in cases such as Morrison and Lopez and the narrow reading of Congress's "enforcement" power under Section 5 of the Fourteenth Amendment in Garrett and City of Boerne v. Flores, one might expect some serious debate about whether the Act is within the scope of one of Congress's enumerated powers. There is, however, no such issue presented here. The Act does not implicate these recent developments at all, and is not subject to any doubt about its constitutionality because of them. The Act does not extend Congress's reach; no conduct whatsoever that is presently free of federal regulation will be regulated if the Act becomes law. No conduct that was lawful is to be unlawful; no conduct that was legal is to be illegal. The Act is essentially a punishment enhancement provision.

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

(There is one question to be addressed concerning the constitutionality of the reach of this Act, where federal authority is predicated entirely upon the identity of an individual attacked. I postpone that question until later.)

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

I suppose the most contentious constitutional question is whether the Act unconstitutionally restricts the right to abortion as defined by the Supreme Court in Roe v. Wade, Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Stenberg v. Carhart, 120 S. Ct. 2597 (2000). But, there is nothing in the Act that restricts a mother's right to an abortion as protected by these cases. Section (c) of the Act explicitly declares an intention to leave the abortion liberty unaffected. I think this section clearly immunizes from any prosecution under the Act the mother and all those cooperating with her in obtaining an abortion. This section also immunizes from prosecution under the Act anyone who provides medical treatment to the pregnant woman or her unborn child. Moreover, the scare-tactics that this Act will empower so-called "pregnancy police" are demolished by section (c)(3), which immunizes from prosecution under the Act the woman for any actions taken with respect to her unborn child, even when her actions violate the predicate criminal acts and cause the death or bodily injury of her unborn child. There is no thing in the Act that inhibits in any way the mother's freedom to have an abortion.

In fact, the Act promotes the liberty protected by Roe, Casey, and Stenberg. That liberty obviously does not require a woman to choose an abortion; she might choose to carry her baby to term. The Act promotes just that freedom by creating a criminal penalty for acts that result in the death or bodily injury of her unborn child.

The argument has been suggested that the Act is constitutionally suspect because it "attacks the premise of Roe v. Wade" and because it "is in irreconcilable tension with the right of reproductive choice." The theory here seems to be that the Act is constitu-ionally infirm because it adopts a different theory about when human life begins.

But, it is clearly a mistake to say that Roe and subsequent cases set forth an understanding of the origins of human life that must be comprehensively applied in every other area of the law. The Roe Court did say that it "need not resolve the difficult question of when life begins." 410 U.S. at 159. The Court went on to say that "[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Id. The Court did state that "we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake." Id. at 162.

But, the Act in question here does not at all interfere with - much less "override" - the rights of the pregnant woman. It is true that Roe reflects the view that, with respect to abortion, the unborn child has no rights that the pregnant mother is bound to respect. Cf. Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857).Yet, this does not mean that one is required to submit one's intellect and will to the Court's premises in every other area of the law.

Abraham Lincoln's comments on the Supreme Court's decision in the Dred Scott case are instructive. In 1858, Lincoln said that he "opposed that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision." Moreover, President Lincoln's First Inaugural Address made the point even more clearly. After commenting that he accepted the binding effect of the Supreme Court's decisions on the parties to the decision and that he accepted that the Court's decisions "are also entitled to very high respect and consideration in all parallel cases," President Lincoln went on to say "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." See G. Gunther & K. Sullivan, Constitutional Law 22 (13^th ed. 1997) (quoting those speeches by Abraham Lincoln).

The point here is obvious. Roe does not set forth an understanding of the origins of human life that must be comprehensively applied in every other area of the law. Fortunately, this understanding has been explicitly confirmed by the United States Supreme Court in its 1989 decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989). In Webster, the state of Missouri had legislated that the "life of each human being begins at conception", and that "unborn children have protectable interests in life, health, and wellbeing." The Missouri statute required that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Constitution and Supreme Court precedent. The Eighth Circuit held this provision unconstitutional on the view that this portion of the Missouri law "imper-missibl[y]" adopted a "theory of when life begins." But the Supreme Court reversed this part of the Eighth 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 of when life begins." 492 U.S. at 506. The United States Supreme Court reversed because the legislative declaration about when human life begins did "not by its terms regulate abortion or any other aspect of…[the plaintiffs'] medical practice." Id. Similarly, because this Act is in 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.

The state court decisions addressing the constitutionality of state unborn child homicide statutes confirm this view. For example, in State v. Merrill, 450 N.W. 2d 318 (Minn.), cert. denied, 496 U.S. 931 (1990), the Minnesota Supreme Court upheld the constitutionality of Minnesota's unborn child homicide statutes. The Court noted 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." 450 N.W. 2d at 322. The Court concluded that "the fetal homicide statutes seek to protect the 'potentiality of human life,' and they do so without impinging directly or indirectly on a pregnant woman's privacy rights." Id. Precisely the same analysis applies to this Act.

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

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