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88–204 PDF 2003

UNBORN VICTIMS OF VIOLENCE ACT OF 2003

OR LACI AND CONNER’S LAW

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 1997

JULY 8, 2003

Serial No. 39

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 
(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania 

TOM FEENEY, Florida 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ADAM B. SCHIFF, California

CRYSTAL M. ROBERTS, Chief Counsel 

PAUL B. TAYLOR, Counsel 

D. MICHAEL HURST, JR., Counsel 

MINDY BARRY, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 
(III)

C O N T E N T S 

JULY 8, 2003

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress From the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

The Honorable Melissa A. Hart, a Representative in Congress From the 

State of Pennsylvania .......................................................................................... 5

The Honorable Steve King, a Representative in Congress From the State 

of Iowa ................................................................................................................... 8

The Honorable Tom Feeney, a Representative in Congress From the State 

of Florida ............................................................................................................... 9

WITNESSES 

Mrs. Tracy Marciniak, Mother of Victim, Mosinee, Wisconsin 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 12

Ms. Juley Fulcher, Director of Public Policy, National Coalition Against Domestic Violence 

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 17

Ms. Serrin M. Foster, President, Feminists for Life of America 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 22

Professor Gerard V. Bradley, University of Notre Dame School of Law 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 26

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Laci Peterson’s family submitted by Representative Hart .............. 44

Documents submitted by Chairman Chabot ......................................................... 46

Response submitted by Representative King to Representative Nadler’s Opening Statement ....................................................................................................... 60

(1)

UNBORN VICTIMS OF VIOLENCE ACT OF 2003 

OR LACI AND CONNER’S LAW 

TUESDAY, JULY 8, 2003

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 2:05 p.m., in Room 

2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of 

the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

This is the Subcommittee on the Constitution. This afternoon the 

Subcommittee convenes to consider H.R. 1997, the ‘‘Unborn Victims 

of Violence Act of 2003’’ or ‘‘Laci and Conner’s Law.’’ I want to first thank Congresswoman Hart for her leadership on 

this issue. When Congresswoman Hart and I reintroduced this bill 

in May, it received increased attention because of the welcome support from Laci Peterson’s family. It is important to remember, however, that there are many other similarly disturbing cases across 

the country which have occurred over time. 

Unfortunately, violence against women and their unborn children 

is a far too common occurrence in our society. In fact, recent studies in Maryland, North Carolina, New York City, and Illinois indicate that homicide is the leading cause of death of pregnant women 

in those areas of the country. Yet there remains a gaping hole in 

Federal law which would allow an unborn child to be killed or injured during the commission of a violent Federal crime without any 

legal consequences whatsoever. A remedy to this deficiency is desperately needed now more than ever. 

The Unborn Victims of Violence Act was designed to address this 

current inadequacy in Federal law by providing that an individual 

who injures or kills an unborn child during the commission of certain predefined violent Federal crimes may be punished for a separate offense. This legislation is vitally important to expectant mothers and their families, serving as a deterrent to anyone who thinks 

that they can injure or kill an unborn child with minimal consequences. 

This legislation is also important to a broad majority of Americans. A recent poll conducted by Newsweek and Princeton Survey 

Research Associates notes that 84 percent of Americans believe 

that prosecutors should be able to bring a homicide charge on behalf of an unborn child killed in the womb. Mothers and fathers, 

brothers and sisters, sons and daughters all across our Nation are 

asking an important question: Why does the Federal Government 
2

refuse to recognize the loss of a valuable life when a criminal takes 

a woman’s unborn child away from her? 

Contrary to allegations made by opponents of the bill, the Unborn Victims of Violence Act has nothing to do with abortion. In 

fact, 28 States have had fetal homicide laws on the books, some for 

over 30 years now, and all of those challenged have been upheld 

as constitutional, coexisting with current abortion laws. 

The Unborn Victims of Violence Act will help ensure just punishment for criminals like Gregory Robbins, an airman at Wright-Patterson Air Force Base in Ohio, just up the road from my district 

in Dayton, Ohio, who wrapped his fist in a T-shirt to reduce the 

chance that he would inflict visible bruises and beat his 8-months 

pregnant wife in the face and abdomen, killing their unborn child. 

Military prosecutors were able to charge Robbins for the death of 

the unborn child by assimilating Ohio’s fetal homicide law through 

the Uniform Code of Military Justice. Had Mr. Robbins beaten his 

wife just across the Ohio River in Kentucky, for example, a State 

which has no fetal homicide law, he would have received no additional punishment for killing this child. 

In the 107th Congress, this Subcommittee heard the testimony 

of William Croston regarding the tragic loss of his sister, Ruth. On 

April 28, 1998, Ruth Croston and her unborn child were shot and 

killed by her husband, Reginald Anthony Falice, as she sat at a red 

light in Charlotte, North Carolina. Falice was convicted by a Federal jury for interstate domestic violence and using a firearm in the 

commission of a violent crime, but because Federal law does not 

currently recognize the unborn as victims, he received no additional punishment for killing the near-term infant. 

Mr. Croston’s words best speak to the pain experienced by his 

family. Let me read from his testimony: ‘‘Our family will forever be 

mourning the loss of Ruth Croston and our unborn niece. Our grief 

will last a lifetime. The emotional effects of the death of our niece 

resurface each time we hear about another unnecessary act of violence against a pregnant women.’’

By enacting the Unborn Victims of Violence Act, Congress will 

ensure that criminals who commit violent acts against pregnant 

women are justly punished for injuring or killing unborn children, 

as well as they are punished if they harm or inflict harm on a pregnant women, while affirmatively acknowledging to grieving family 

members that their deceased loved ones are recognized under the 

law. 

Let me make one final observation. I hope everyone here will be 

able to put politics aside and recognize that this is an important 

women’s rights issue. We should all be able to agree that—regardless of our positions on abortion—that women should have the 

right to see a criminal who injures or kills their unborn child 

brought to justice. 

I know that Laci and Conner’s family feel that way, and I know 

that most Americans agree. But without the Unborn Victims of Violence Act, Federal crimes against these innocent victims will continue to go unpunished and the rights of women and their unborn 

children will continue to be violated. 

Mr. CHABOT. I now yield to the gentleman from New York, Mr. 

Nadler, the Ranking Member, for his opening statement. 
3

Mr. NADLER. Thank you, Mr. Chairman. 

We are here again to consider the Unborn Victims of Violence 

Act, which has for several years unnecessarily mired what should 

be a laudable and uncontroversial effort to punish truly heinous 

crimes in the emotionally charged and legally suspect back allies 

of the abortion debate. This is regrettable, Mr. Chairman, because 

real people are suffering real harm, and this Committee has played 

abortion politics instead of acting to punish truly barbaric crimes. 

For those of us who are pro-choice, the right to choose extends 

not just to a woman’s right to have an abortion but to a woman’s 

right to carry her pregnancy to term and deliver a healthy baby in 

safety. That is why we supported the Violence Against Women Act, 

that is why we support programs to provide proper prenatal care 

and nutrition to all women, that is why we support proper health 

and nutritional services after a live birth, and that is why we support other initiatives like the Family and Medical Leave Act. 

Life does not begin at conception and end at birth. We have an 

obligation to these children and their parents. Let there be no mistake: Using physical violence against a woman to prevent her from 

having a child she wants is just as much an assault on the right 

to choose as is the use of violence against women who exercised 

their constitutional right to choose to end their pregnancies. 

A woman, and only a woman, has the right to decide when and 

whether to bring a child into the world, not an abusive partner, not 

a fanatic, certainly not her Congressman. My colleagues should understand that we are talking not just about viable healthy fetuses 

who are ready to be born in this bill, as was the case in the grotesque crime committed against today’s witness. That is not what 

the bill says. The bill says, ‘‘in any stage of development.’’ Page 4, 

line 24. I think that means any stage, including violence to embryos, violence to zygotes, violence to blastocysts. And I do not 

apologize to my colleagues on this Committee who have in the past 

taken offense at the use of the correct medical terms for the subject 

matter we are discussing. 

The defendant need not be aware that the women is pregnant or 

have any intent to harm a fetus. That is on page 3, lines 3 to 9. 

We should have no illusions about the purpose of this bill, that it 

is, despite the Chairman’s denial, yet another battle in a war of 

symbols in the abortion debate in which opponents of a woman’s 

constitutional right to choose attempt to establish that fetuses from 

the earliest moments of conception are persons with the same 

rights as the adult women who are carrying them. 

The implication is that anyone who does not share the metaphysical slant of the radical anti-choice movement, that a onecelled zygote is a person on exactly the same basis and with the 

same rights as a child or an adult, must secretly favor infanticide. 

This bill, by making the destruction of a fetus or even of a zygote 

a crime against a fetus, without any reference to the terrible harm 

suffered by the pregnant woman, speaks volumes about that view. 

Recognizing an embryo or a zygote as a legal person is at odds 

with the holdings of the Supreme Court in Roe v. Wade. The Court 

clearly said, ‘‘The unborn have never been recognized in the whole 

sense’’ and concluded that person as used in the four—and there 
4

is a quote again—that, ‘‘person as used in the 14th amendment of 

the Constitution does not include the unborn.’’ The rhetoric used by proponents of this bill urging that the law 

must recognize the fetus as a victim, as a separate victim, is a direct assault on that holding in Roe. Rather than debate the abortion issue yet again, we should pass Representative Lofgren’s legislation that provides for the same severe penalties, for the same terrible crimes as does the bill before us without getting into the 

thorny issue of whether an embryo at 30 days gestation is a person. 

The Lofgren bill provides for two separate crimes, one conviction 

for the assault and murder of the women and the new crime involving injury to the fetus or termination of the pregnancy. The major 

difference is that the Lofgren bill gives recognition to and imposes 

serious penalties for the additional and truly grotesque crime 

against the woman. It recognizes and punishes a separate crime. 

It does not get into the question of a separate person. 

Regrettably, the majority is so intent on pursuing the abortion 

issue that Representative Lofgren’s legislation on which this Committee and the whole House have voted in the past was not even 

made part of this hearing, which it seriously should be. 

If we are serious about this problem, we have effective remedies 

at our disposal. If we want to play abortion politics, we have the 

bill on our agenda today. Violence against a pregnant woman is, 

first and foremost, a criminal act of violence against a woman that 

deserves strong preventative measures and stiff punishment. 

According to the Journal of the American Medical Association, 

homicides during pregnancy and in the year following birth represent a largely preventable source of premature mortality among 

young women in the United States, devastating children, family, 

and communities. While in the United States homicide is the leading killer of young women, pregnant or not, homicides of pregnant 

women occurred with much greater frequency than did homicides 

against all women. 

Mr. Chairman, it is a disgrace that while these preventable 

crimes continue to occur Congress fiddles with largely symbolic legislation, rather than take affirmative steps to deal with the problem. Why, for example, did the Republican majority fall $209 million short of President Clinton’s request for full funding of the Violence Against Women Act? Why, now that the Republicans control 

both Houses of Congress and the White House, are we still shortchanging funding for the Violence Against Women Act? It appears 

that many of the Members who have signed on to this bill are the 

same ones who voted to divert funds from protecting women from 

violence to protecting stock dividends from taxation. 

No one who listened to the testimony this Subcommittee has received in the past and will hear today could have been left 

unmoved by the murders and assaults against women who wanted 

nothing more than to bear a child. This legislation is named for one 

such woman, and we will hear from another victim today. We owe 

it to these women and to those who are closest to them to ensure 

that early intervention is available and that States and localities 

receive the full resources of the Violence Against Women Act to 

prevent violence against women by intervening before the violence 
5

escalates to that level. We owe it to these victims to enact strong 

penalties, ones which are not constitutionally suspect for these heinous crimes. 

Let’s not cloud that issue. Let’s not fail to enact strong penalties 

that will stand the constitutional test before the courts by plunging 

a legitimate law enforcement effort into the murky waters of the 

abortion debate. 

Finally, this bill opens the door to prosecuting women or restraining them physically for the sake of a fetus. Some courts have 

already experimented with that approach. 

The last time we had occasion to consider this bill, the Supreme 

Court had just struck down a practice in the then sponsor’s home 

State of South Carolina in which a hospital would give the results 

of a pregnant woman’s blood test to local law enforcement for the 

purpose of initiating legal action against those women if they used 

improper drugs. 

Once we recognize a zygote, one cell, as this bill would do, as 

having the same legal status as the pregnant woman, it would logically follow that her liberty could be restricted in order to protect 

the zygote and the fetus. The whole purpose of Roe and of the Supreme Court holdings in these cases was to protect the liberty interests of the woman. This bill would undermine it. 

Mr. Chairman, we should deal with the Lofgren bill that would 

protect these women, make it a separate crime, recognize a separate crime, and impose the same penalties as the bill before us 

would do without getting into the abortion debate, which is wholly 

unnecessary for this purpose but is the real purpose of this bill. 

Thank you, Mr. Chairman, and I yield back the balance of my 

time. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

The gentlelady from Pennsylvania is recognized, and I want to 

thank her for her leadership on this bill. She is the principal sponsor of this particular piece of legislation. Melissa Hart. 

Ms. HART. Thank you. I also thank you for holding this hearing 

and for those who are here to testify on this issue today. 

When a woman chooses to have a child and then someone violently takes that child away from her, I believe there must be accountability. This is especially important because that unborn child 

is often the motivator, the motivating factor behind the attack on 

the pregnant woman. 

A Maryland study showed that homicide was the leading cause 

of death for pregnant women in the State, as the Chairman referred to earlier. According to the Maryland State Department of 

Health, there were 247 pregnancy-associated deaths between the 

years of 1993 and 1998; 50 of these were homicides. 

This study confirms a trend across the Nation, where similar 

studies in New York and Illinois as well as others have shown 

homicide as a leading cause of death for pregnant women. 

In Cook County, Illinois, 26 percent of the 95 deaths of pregnant 

women recorded between 1986 and 1989 were homicides. 

In New York, 25 percent of the 293 deaths among pregnant 

women between 1987 and 1991 were also homicides. 

The tragic theme here is that pregnant women have become targets of what is clearly an extreme pattern of domestic violence. 
6

In my home State of Pennsylvania, we are one of 28 States with 

a fetal homicide law. I was a lead sponsor of this bill when I served 

as a State Senator. Just 2 months ago, that law was used to convict a woman who had kicked a pregnant woman in the stomach, 

killing the child. The attacker had dragged the victim to the 

ground by her hair, punching and kicking her repeatedly. 

Forensic pathologists ruled that that unborn child died because 

of a blow to the victim’s abdomen, to the mother’s abdomen. Without this type of legislation, that attack would merely have been 

tried as an assault or a battery against that mother with little or 

no jail time for the assailant. Instead, because Pennsylvania has a 

fetal homicide law, the attacker faces 20 to 40 years for violently 

taking the life of the unborn child. 

I and the other sponsors of this bill hope to extend this necessary 

and commonsense remedy to Federal law, and I am honored that 

Sharon Rocha, the mother of Laci Peterson and the grandmother 

of Conner, has chosen to back this initiative. In fact, Laci Peterson’s family wrote to me requesting that this bill be named after 

Laci and her unborn son, Conner: ‘‘Knowing that the perpetrators 

who murder pregnant women will pay the price not only for the 

loss of the mother but for the baby as well will help bring justice 

for these victims.’’ I pause because it is important to note that 

there is more than one victim. ‘‘And hopefully, also,’’ she adds ‘‘that 

it will act as a deterrent to those who would consider such heinous 

acts.’’ I have met with Sharon Rocha, and she supports this legislation 

specifically and specifically opposes the one-victim solution. It is 

clear why she supports this legislation—because it recognizes that 

there are two victims in these crimes. 

Her family certainly bears the burden, as do the families of others who have faced such tragedy. As she noted in a letter, which 

she asked me to submit for the record today, ‘‘please understand 

how adoption of such a single victim proposal would be a painful 

blow to those who, like me, are left to grieve after a two-victim 

crime because Congress would be saying that Conner and other innocent victims like him are not really victims, that they never really existed at all. But Conner did exist. He was loved. And we anxiously awaited meeting him. His room was decorated and waiting 

for his arrival. My daughter, Laci, wanted desperately to be a 

mother. His life was violently taken from him, as was Laci’s, but 

before they ever even saw him. 

Mr. Chairman, I submit Sharon Rocha’s letter. 

Mr. CHABOT. Without objection, it will be included in the record. 

Ms. HART. Thank you very much, Mr. Chairman. 

[The information referred to follows in the Appendix] 

Ms. HART. Laci and Conner’s Law will ensure that anyone who 

commits such brutal acts of domestic violence, regardless of whether they do so on Federal property, will face the possibility of serious jail time for their crimes. 

I yield back, Mr. Chairman. 

Mr. CHABOT. Thank you very much. 

The gentleman from Virginia is recognized if he should like to 

make an opening statement. 

Mr. SCOTT. Thank you, Mr. Chairman. 
7

I won’t make an opening statement, but I would want to, I guess, 

inquire generally to the witnesses whether or not the purpose of 

the bill could be achieved if the bill provided additional punishment 

for criminal attacks when the victim is a pregnant woman? I think 

that kind of bill could pass without much problem. You won’t get 

into the constitutional issues of the abortion issue or evidentiary 

issues. And with that, Mr. Chairman, I would inquire why this legislation is in the Constitution Subcommittee and not the Crime 

Subcommittee if it purports to be a crime bill. 

Mr. CHABOT. This was directed from the top, from the Chair of 

the overall Committee to this Committee. I think it is an appropriate Committee for it to be in. 

Mr. NADLER. Mr. Chairman, can I comment on that? 

I think it is properly in front of this Committee since it obviously 

raises major constitutional claims against the questions given and 

will face a constitutional attack if adopted, given the holding of the 

Supreme Court in the Roe v. Wade case in which it said we have 

never recognized a fetus as a person under the meaning of the 14th 

amendment. 

I think certainly as—and given the holding of the Court as reaffirmed in subsequent cases as to the right of women for privacy 

to have abortions if they wish in the first trimester, subject to some 

regulation in the second trimester, and the right of a State to prohibit it if it wishes in the third trimester, as applied to—if this bill 

were to pass as applied within the first two trimesters, there would 

be a serious constitutional question on whether the bill is constitutional. 

So I think this is—because it does seem to go exactly against the 

holding of the Supreme Court in Roe v. Wade. It does raise the 

question of why go this route, whereas the Lofgren bill would accomplish exactly the same purpose, except—that is of punishing 

the crime, of recognizing it as a separate crime, of giving the strong 

penalty, up to life imprisonment for the crime—without getting 

into that constitutional question. 

But because of that constitutional question, I think it is properly—and I think the Republican leadership ought to be commended for recognizing that they are raising, unnecessarily, a 

major constitutional question with this bill in assigning it to the 

Constitution Subcommittee. 

Mr. CHABOT. There clearly is and can always be a constitutional 

challenge to something of this nature. 

I would note that it has been challenged in States that have enacted this legislation. It has always been upheld as an appropriate 

piece of legislation for those States and not unconstitutional. I fully 

expect that that would occur in this particular instance. 

Our goal is to protect the mother of the child and to protect the 

unborn child as well, and therefore, it should be a much stronger 

penalty, and it should be an additional penalty if one harms not 

only the woman who is carrying the unborn child but also the unborn child, him or herself. 

Mr. NADLER. Of course, that is the heart of the debate. No one 

disagrees that we ought to have a much stronger penalty, and it 

ought to be a penalty for harming the fetus, in addition to the penalty for harming the child. The question, as I said in my opening 
8

remarks, is not recognition of a separate crime or recognition of a 

higher penalty up to life imprisonment, as the Lofgren bill provides, which we would all support. The question is, rather, the different question of recognition of a separate victim, of a separate 

person, of the fetus as a person. That is the real debate here. 

It has nothing to do with the penalty. It has nothing to do with 

the recognition of a separate crime. It has nothing to do with the 

crimes in current law being too small because we all agree that it 

should be made up to life imprisonment. The question is simply a 

part of the abortion debate that the one bill that is before the Committee would recognize the fetus as a separate person; the Lofgren 

bill would not get into that question. That is the only thing that 

we are a disagreeing on. 

And, frankly, to use the heart-rending victims for one-sided purposes, because their purposes will be served by recognizing the separate crime and by enhancing the penalties or by making it a separate penalty, which both bills would do, I don’t see why we have 

to subject them and really distort the debate by making this sound 

as if it isn’t. The debate is really about should we increase the penalties; should we recognize the separate crime? We all agree on 

those questions. The question is, should we recognize the fetus as 

a separate person? 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Iowa, Mr. King, is recognized. 

Mr. KING. Thank you, Mr. Chairman, and I especially want to 

thank you, and also Ms. Hart, for bringing this before us today. 

This is an important piece, and the timing of it is something that 

I think is going to be helpful, that the country can look at these 

issues and be able to better frame the reality of the policy that we 

have and the policy that we have before us. 

With regard to the question of whether this should be before the 

Constitution Subcommittee, judging from some of the recent decisions of our Supreme Court, this might be a very busy Committee 

indeed if we are to examine some of these things that might be considered unconstitutional by our current makeup of the Supreme 

Court. 

Be that as it may, the Unborn Victims of Violence Act of 2003 

or the Laci and Conner’s Law would recognize that when a criminal commits a Federal crime against a pregnant woman and injures or kills her unborn child, he has claimed two victims. I firmly 

believe that if a pregnant woman is murdered, there are two victims. We must recognize the value of the life of the unborn child 

by holding the murderer responsible for crimes against both the 

mother and the child. 

To ignore the death of an unborn child is to let the perpetrator 

literally get away with murder. Whether or not a pregnant female 

has a moral right to choose, no one else has that right, and taking 

that life is murder. 

Mr. Chairman, I categorically disagree with the position taken in 

his opening remarks by the gentleman from New York, and I would 

ask unanimous consent to revise and extend my remarks, which 

will be include a full rebuttal of those remarks. 

With that, Mr. Chairman, I would yield back the balance of my 

time. Thank you. 
9

Mr. CHABOT. Thank you. 

The gentleman from Florida, Mr. Feeney, is recognized for an 

opening statement. 

Mr. FEENEY. Well, thank you. I will be brief. And I respect my 

good colleague from Iowa, but I actually want to associate myself 

with a very small part of the comments of the gentleman from New 

York because I think he is exactly right. But the question here 

today is whether or not there is one victim or two. 

Ultimately, though, the gentleman from New York falls back on 

the precedent in Roe, and I think that Congressman King from 

Iowa is correct. This Supreme Court just invited us last week to 

reexamine virtually every precedent they have been involved in. 

In the very first paragraph in the Lawrence case, they actually 

take up and reconsider the Court’s holding 17 years ago in the 

Bowers case and the Texas sodomy law strike-down; and I do believe that fundamentally the constitutional integrity of some of the 

arguments that this Supreme Court is making in its cases are not 

founded in the basis of the Constitution. So I think the Constitution Subcommittee is the right place to hear this. 

I think that the gentleman from New York is right, that their 

question is whether there is one victim or two. I think it is anybody’s guess on any given day what five or six members of this 

Court will do with our United States Constitution. 

I yield back. 

Mr. CHABOT. Thank you. 

At this time, we will introduce our panel here this afternoon. We 

have really an excellent panel. 

Our first witness will be Tracy Marciniak. She currently lives in 

Wisconsin with her husband, Jeff, and two young children. Mrs. 

Marciniak also has a daughter currently attending college. Mrs. 

Marciniak is a full-time mother and wife and survived a violent 

crime in February 1992. That tragic event, which she will be sharing with us today, has led her to be a full-time fighter for unborn 

victims of violence. And we thank you for being here. 

Next, we will hear from Juley Fulcher, who is currently the Public Policy Director for the National Coalition Against Domestic Violence. Ms. Fulcher previously served as Legislative Consultant for 

NOW, Legal Defense and Education Fund; and she was a Woman’s 

Law and Public Policy Fellow at the Georgetown University Law 

Center Sex Discrimination Clinic. 

She is a former litigator and has taught as a visiting professor 

at the Georgetown University Law Center Domestic Violence Clinic. She also has a Ph.D. in psychology from Johns Hopkins University and has been a part-time faculty member in the Psychology 

Department at Towson University for more than 10 years. And we 

welcome you here this afternoon. 

Following Ms. Fulcher, we will hear from Serrin M. Foster, President of Feminists for Life. Feminists for Life is a nonpartisan 

grassroots organization that seeks equality for all human beings 

and champions the needs of women. They oppose all forms of violence against women and children and are a member of the National Task Force to End Sexual and Domestic Violence Against 

Women. Ms. Foster has been an outspoken advocate, appearing on 

numerous television programs, before the national presidential con-
10

ventions of both major political parties, and throughout many colleges and universities. 

Prior to her work at Feminists for Life, Ms. Foster served as Director of Development for the National Alliance for the Mentally Ill 

in Arlington, Virginia, assisting those suffering from a no-fault 

brain disease. Ms. Foster also formerly worked at St. Jude Children’s Research Hospital and is a graduate of Old Dominion University in Norfolk, Virginia. We welcome you here this afternoon. 

And our final witness today will be Professor Gerard Bradley of 

the University of Notre Dame Law School in Indiana. Professor 

Bradley specializes in constitutional law as well as law and religion 

issues on which he has written numerous articles and publications. 

Before joining the faculty of Notre Dame, Professor Bradley 

taught at the University of Illinois from 1983 to 1992. He also previously served as an Assistant District Attorney for the New York 

County District Attorney’s Office. Professor Bradley earned his 

B.A. from Cornell University in 1976, and his J.D. from Cornell 

Law School in 1980. We welcome you here this afternoon, Professor 

Bradley. 

We want to thank all of you for coming. Before we get to the testimonies, I just would ask that you try to keep it within the 5-

minute rule. We will give a little leeway on that if necessary. But, 

as much as possible, we would ask you to try to do that. 

We have a lighting system there. When the yellow light comes 

on, that means that you have a minute to wrap-up. The red light 

means your time is up, but—so try to keep it within that as much 

as possible. 

Mr. CHABOT. We will begin with Mrs. Marciniak. 

STATEMENT OF TRACY MARCINIAK, MOTHER OF VICTIM 

Mrs. MARCINIAK. Mr. Chairman and honorable Members of the 

Subcommittee, my name is Tracy Marciniak. I thank you for the 

opportunity to appear before you today to tell you my story and to 

explain to you how it is related to the Unborn Victims of Violence 

Act. 

I respectfully ask the Members of the Subcommittee to examine 

the photograph that you see before you. In this photo I am holding 

the body of my son, Zachariah Nathaniel. Often, when people see 

the photo for the first time, it takes a moment for them to realize 

that Zachariah is not peacefully sleeping. Zachariah was dead in 

this photo. 

This photo was taken at Zachariah’s funeral. I carried Zachariah 

in my womb for almost 9 full months. He was killed in my womb 

only 5 days before delivery date. The first time I ever held him in 

my arms, he was already dead. This photo shows the second time 

I held him, which was the last time. 

There is no way that I can really tell you about the pain I feel 

when I visit my son’s gravesite in Milwaukee and at other times 

thinking of all that I have missed with him. But that pain was 

greater because the man who killed Zachariah got away with murder. 

Mr. Chairman, I ask you and the other Members of the Committee to look at this photo and ask yourselves, does it show one 

victim or two? If you look at this photo and you see two victims, 
11

a dead baby and a grieving mother who survived a brutal assault, 

then you should support the Unborn Victims of Violence Act. 

I know that some lawmakers and some groups insist that there 

is no such thing as an unborn victim and that the crimes like this 

only have a single victim. But this is callous, and it is wrong. 

Please don’t tell me that my son was not a real victim of a real 

crime. We were both victims, but only I survived. 

Zachariah’s delivery date was to be February 13th, 1992, but on 

the night of February 8th my own husband brutally assaulted me 

in my home in Milwaukee. He held me against a couch, by my hair. 

He knew I very much wanted my son. He punched me very hard 

twice in the abdomen. Then he refused to call for help, and he prevented me from calling. 

After about 15 minutes of screaming in pain that I needed help, 

he finally went to a bar. From there, he called for help. Zachariah 

and I were rushed by ambulance to the hospital where Zachariah 

was delivered by emergency cesarian section. My son was dead. 

The physician said he had bled to death inside me because of blunt 

force trauma. 

My own injuries were life-threatening. I nearly died. I spent 3 

weeks in the hospital. During this time, I was struggling to survive. 

The legal authorities came and spoke to my sister. They told her 

something that she found incredible. They told her that, in the eyes 

of Wisconsin law, nobody had died on the night of February 8th. 

Later, this information was passed on the me. I was told that, 

in the eyes of the law, no murder had occurred. I was devastated. 

My life already seemed destroyed by the loss of my son, but there 

was so much additional pain because the law was blind to what 

had really happened. The law, which I had been raised to believe 

in was based on justice, was telling me that Zachariah had not 

really been murdered. 

It took over 3 years for this case to go to trial. The State prosecuted my attacker for first-degree reckless injury and false imprisonment, and he was convicted of these counts. They also prosecuted 

him under a 1955 abortion law, but they failed to win a conviction 

on the abortion count because the law required that they prove a 

specific intent to destroy the life of my unborn child. 

I do not fault the State authorities or the jurors. They did not 

have the right legal tools for this type of case. The law simply 

failed to recognize what anybody who looks at the photo should be 

able to see, that Zachariah was robbed of his life. 

Before his trial, my attacker said on TV that he would never 

have hit me if he had thought that he could be charged with the 

killing of his child. 

My family and I looked for someone who would help us reform 

the law so that no such injustice would occur in our State in the 

future. We found only one group, and that was Wisconsin Right to 

Life. They never asked me my opinion on abortion or any other 

issue. They simply worked with me and with other surviving family 

members of unborn victims to reform the law. 

It took years. Again and again, I told my story to State lawmakers, and I pleaded with them, as I plead with you today: correct the injustice in our criminal justice system. Finally, on June 
12

16th, 1998, Governor Tommy Thompson signed a fetal homicide 

law. Under this law, an unborn child is recognized as a legal crime 

victim just like any other member of the human race. 

Mr. Chairman, I understand very well that the Unborn Victims 

of Violence Act would only apply to Federal crimes and Federal jurisdiction. Therefore, even if the bill had been in force on the day 

that I was attacked, it would not have applied to Zachariah. But 

you very well know that there have been in the past cases like ours 

that did occur in Federal jurisdictions and during Federal crimes, 

and you know that tragically such cases are bound to occur in the 

future. 

I do not want to think of any surviving mother being told what 

I was told, that she did not really lose a baby, that nobody really 

died. I say no surviving mother, father, or grandparent should ever 

again be told that their murdered loved one never even existed in 

the eyes of the law. 

So I think that you should really look at these cases for illustrations of types of pain and injustice that result when unborn victims 

of violence are not recognized by the law. This has been called the 

Laci and Conner’s bill, and it is. But it is also the Tracy and Zachariah bill, and it is also Shiwona and Heaven’s bill, and it is a bill 

for every unborn victim and surviving family member. 

I am encouraged that more and more States are enacting unborn 

victims laws. I have been told that 28 States now recognize the unborn child as a crime victim, at least in some circumstances. Fifteen of these laws cover the killing of an unborn child at any point 

of his or her development in the womb. Texas just enacted a strong 

law. These laws are all listed on the web site www.nrlc.org, and the 

photograph you see today is also posted there. 

In Wisconsin, the Wisconsin law has been in effect for 5 years 

now, and it has not had any effect on legal abortions. Opponents 

of the bill should stop trying to turn it into an abortion issue. It 

is not. 

I have read Congressman Lofgren’s proposal, which she calls the 

Motherhood Protection Act. There is only one victim in that bill, 

the pregnant woman. So if you vote for that bill, you are really saying all over again to me, we are sorry, but nobody really died that 

night. There is no dead baby in this picture. More importantly, you 

would be saying to all of the future mothers, fathers, and grandparents who lose their unborn children in future Federal crimes, 

you didn’t lose a baby. Please don’t tell me that my son was not 

a crime victim. 

If you really think that nobody died that night, if you really 

think there is no dead baby in this picture, then vote for the 

Lofgren amendment or Lofgren bill. But please remember 

Zachariah’s name and face when do you so. 

Thank you. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mrs. Marciniak follows:]

PREPARED STATEMENT OF TRACY MARCINIAK

Mr. Chairman and honorable members of the subcommittee: My name is Tracy 

Marciniak. I thank you for this opportunity to appear before you today to tell you 

my story and to explain how it is related to the Unborn Victims of Violence Act 

(H.R. 1997). 
13

I respectfully ask that the members of the subcommittee examine the photograph 

that you see before you. In this photo, I am holding the body of my son, Zachariah 

Nathanial. 

Often, when people see this photo for the first time, it takes a moment for them 

to realize that Zachariah is not peacefully sleeping. Zachariah was dead in this photograph. This photo was taken at Zachariah’s funeral. 

I carried Zachariah in my womb for almost nine full months. He was killed in 

my womb, only five days from his delivery date. The first time I ever held him in 

my arms, he was already dead. This photo shows the second time I held him, which 

was the last time. 

There is no way that I can really tell you about the pain I feel when I visit my son’s grave site in Milwaukee, and at other times, thinking of all that we missed 

together. But that pain was greater because the man who killed Zachariah got away 

with murder. 

ONE VICTIM, OR TWO?

Mr. Chairman, I ask you and the other members of the committee to look at this 

photograph and ask yourselves: Does it show one victim, or two? 

If you look at this photo and see two victims—a dead baby and a grieving mother 

who survived a brutal assault—then you should support the Unborn Victims of Violence Act. 

I know that some lawmakers and some groups insist that there is no such thing 

as an unborn victim, and that crimes like this only have a single victim—but that 

is callous and it is wrong. Please don’t tell me that my son was not a real victim 

of a real crime. We were both victims, but only I survived. 

Zachariah’s delivery date was to be February 13, 1992. But on the night of February 8, my own husband brutally attacked me at my home in Milwaukee. He held 

me against a couch by my hair. He knew that I very much wanted my son. He 

punched me very hard twice in the abdomen. Then he refused to call for help, and 

prevented me from calling. 

After about 15 minutes of my screaming in pain that I needed help, he finally 

went to a bar and from there called for help. I and Zachariah were rushed by ambulance to the hospital, where Zachariah was delivered by emergency Caesarean section. My son was dead. The physicians said he had bled to death inside me because 

of blunt-force trauma. 

My own injuries were life-threatening. I nearly died. I spent three weeks in the 

hospital. 

During the time I was struggling to survive, the legal authorities came and they 

spoke to my sister. They told her something that she found incredible. They told 

her that in the eyes of Wisconsin law, nobody had died on the night of February 

8. 

Later, this information was passed on to me. I was told that in the eyes of the 

law, no murder had occurred. I was devastated. 

My life already seemed destroyed by the loss of my son. But there was so much 

additional pain because the law was blind to what had really happened. The law, 

which I had been raised to believe was based on justice, was telling me that Zachariah had not really been murdered. 

It took over three years for this case to go to trial. The state prosecuted my 

attacker for first-degree reckless injury, and for false imprisonment, and he was convicted of those counts. They also prosecuted him under a 1955 abortion law. But 

they failed to win a conviction on the abortion count, because that law required that 

they prove a specific intent to destroy the life of my unborn child. I do not fault 

the state authorities or the jurors—they simply did not have the right legal tool for 

this type of case. The law simply failed to recognize what anybody who looks at the 

photo should be able to see—that Zachariah was robbed of his life. 

REFORM OF WISCONSIN LAW

Before his trial, my attacker said on a TV program that he would never have hit 

me if he had thought he could be charged with killing an unborn baby. 

My family and I looked for somebody who would help us reform the law so that 

no such injustice would occur in our state in the future. We found only one group 

that was willing to help: Wisconsin Right to Life. They never asked me my opinion 

on abortion or on any other issue. They simply worked with me, and with other surviving family members of unborn victims, to reform the law. 

It took years. Again and again, I told my story to state lawmakers and I pleaded 

with them, as I now plead with you, to correct this injustice in our criminal justice 

system. 
14

Finally, on June 16, 1998, Governor Tommy Thompson signed the fetal homicide 

law. This means that it will never again be necessary for state authorities in Wisconsin to tell a grieving mother, who has lost her baby, that nobody really died. 

Under this law, an unborn child is recognized as a legal crime victim, just like any 

other member of the human race. 

Of course, the state still has to prove everything beyond a reasonable doubt, to 

a jury, which is as it should be. But when this bill was under consideration in the 

legislature, it was actually shown to some of the former jury members in our case, 

and they said if that had been the law at the time I was attacked, they would have 

had no problem convicting my attacker under it. 

Mr. Chairman, we surviving family members of unborn victims of violence are not 

asking for revenge. We are begging for justice—justice like we were brought up to 

believe in and trust in. Justice means that the penalty must fit the crime, but that 

is only part of it—justice also requires that the law must recognize the true nature 

of a crime. 

Please hear me on this: On the night of February 8, 1992, there were two victims. 

I was nearly killed—but I survived. Little Zachariah died. 

WHY FEDERAL BILL IS NEEDED

Mr. Chairman, I understand very well that the Unborn Victims of Violence Act 

would apply only to federal crimes and federal jurisdictions. Therefore, even if this 

bill had been in force on the day I was attacked, it would not have applied to Zachariah. 

But you know very well that there have been in the past cases like ours that did 

occur in federal jurisdictions and during federal crimes. And you know that tragically, such cases are bound to occur in the future. I do not want to think of any 

surviving mother being told what I was told—that she did not really lose a baby, 

that nobody really died. I say, no surviving mother, father, or grandparent should 

ever again be told that their murdered loved one never even existed in the eyes of 

the law. 

So, I think that you really should look at these state cases for illustrations of the 

type of pain and injustice that results when unborn victims of violence are not recognized in the law. This has been called Laci and Conner’s bill, and it is, but it is 

also Tracy and Zachariah’s bill, and it is also Shiwona and Heaven’s bill, and it is 

a bill for every unborn victim and surviving family member. 

I am encouraged that more and more states are enacting unborn victims laws. I’ve 

been told that 28 states now recognize the unborn child as a crime victim at least 

in some circumstances, and 15 of those laws cover the killing of the unborn child 

at any point in his or her development in the womb. Texas just enacted a strong 

law. These laws are all listed at the website www.nrlc.org. The photograph that you 

have before you today is also posted at that website. 

I am also encouraged by recent national polls that show that more and more people ‘‘get it.’’ A scientific Newsweek poll released June 1 asked people whether someone who ‘‘kills a fetus still in the womb’’ should face a homicide charge for that act—

either throughout pregnancy, or from the point of ‘‘viability,’’ or not at all. Fifty-six 

percent (56%) said throughout pregnancy, and another 28% said at viability, for a 

total of 84%. Only 9% said there should be no such thing as a fetal homicide charge. 

Also in May, a national Fox News poll found that 84% favored a double-homicide 

charge in the Peterson murder case in California, while only 7% favored a single 

homicide charge. 

NO EFFECT ON ABORTION

The Wisconsin law has been in effect for five years now and it has had no effect 

on legal abortion. Legal abortion is specifically exempted under that law. The bill 

that you are considering also has a specific exemption for abortion. Opponents of 

the bill should stop trying to turn it into an abortion issue. 

It really boils down to the question that I asked you earlier. Does the photograph 

show one victim, or two? 

Some lawmakers say that criminals who attack pregnant women should be punished more severely, but that the law must never recognize someone’s unborn child 

as a legal victim. For example, I have read Congresswoman Lofgren’s proposal, 

which she calls the ‘‘Motherhood Protection Act.’’ There is only one victim in that 

bill—the pregnant woman. So if you vote for that bill, you are really saying all over 

again to me, ‘‘We’re sorry, but nobody really died that night. There is no dead baby 

in the picture. You were the only victim.’’
15

More importantly, you would be saying to all of the future mothers, fathers, and 

grandparents, who lose their unborn children in future federal crimes, ‘‘You didn’t 

really lose a baby.’’

Please don’t tell us that. Please don’t tell me that my son was not a real murder 

victim. 

If you really think that nobody died that night, if you really think there is no dead 

baby in the picture, then vote for the Lofgren bill. But please remember Zachariah’s 

name and face when you decide.

Mr. CHABOT. Ms. Fulcher. 

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

Ms. FULCHER. Good afternoon, Mr. Chairman and Members of 

the Subcommittee. On behalf of the National Coalition Against Domestic Violence I thank you for the opportunity to address the concerns of battered women who experience violence during their pregnancies. NCADV is a nationwide network of approximately 2,000 

domestic violence shelters, programs and individual members 

working on behalf of battered women and their children. 

My role here today is to advocate for increased safety for battered women, which in turn will lead to healthier pregnancies and 

births. Unfortunately, the Unborn Victims of Violence Act does not 

provide the protection that battered women need to obtain safety. 

Historically, one of the major obstacles to eradicating domestic 

violence from the lives of women has been the unwillingness of the 

legal system to treat domestic violence as a serious crime. In 1994 

and 2000, Congress passed the Violence Against Women Act and 

committed to a Federal investment in protecting battered women 

and their children. It is important that we continue this trend and 

recognize domestic violence threats, assaults, and murders as the 

serious crimes that they are. 

Four to 8 percent of all pregnant women in this country are battered by the men in their lives. Studies now indicate that homicide 

is the number one killer of pregnant women, yet physicians do not 

usually screen for signs of domestic violence, even though instances 

are more common than routinely screened for medical problems. 

As an attorney representing victims of domestic violence, I have 

seen the effects of this violence firsthand. Several years ago a client 

of mine lost a pregnancy due to domestic violence. No matter how 

many stories like this I hear, it never ceases to sicken me. 

I should note that, in the cases I have worked on, it was clear 

by the batterer’s words and actions that his intent was to cause 

physical and emotional injury to the woman and establish undeniably his power to control her. We are right to want to address this 

problem and protect women from such a fate. However, our response to the problem should be one that truly protects the pregnant woman by early intervention and prevention and not a reaction to a specific set of circumstances after the fact. 

The Unborn Victims of Violence Act is not designed to protect 

women and does not help victims of domestic violence. The goal is 

to create a new cause of action on behalf of the unborn and further 

a specific political agenda. The result is that the crime committed 

against a pregnant woman is no longer about the woman victimized by violence. Instead, the focus will be shifted to the impact of 

that crime on the unborn embryo or fetus, once again diverting the 
16

attention of the legal system away from domestic violence and 

other forms of violence against women. 

Moreover, passage of the bill would set a dangerous precedent, 

which could easily lead to statutory changes that could hurt battered women. This bill would, for the first time, federally recognize 

that the unborn embryo or fetus could be the victim of a crime. It 

would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms. In fact, some States have already made that leap, and in those States, women have been prosecuted and convicted for acts that infringe upon these State-recognized rights. 

While the Unborn Victims of Violence Act specifically exempts 

the mother from prosecution, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even 

for violence perpetrated on her by her batterer under a failure to 

protect theory. 

Moreover, a battered woman can be intimidated or pressured by 

her batterer not to reveal the cause of her miscarriage, and if she 

is financially or emotionally reliant on her batterer, she may be 

less likely to seek appropriate medical assistance. The long-term 

public health implications of such a policy would be devastating for 

victims of violence and all women. 

The harmful potential of this bill is balanced by little or no additional protections for battered women and other women victimized 

by violence. The vast majority of domestic violence threats, assaults, and murders are prosecuted by the State. As this bill would 

apply only in Federal cases, the change would do little if anything 

to address the crime of domestic violence in our country against 

pregnant women. 

Since the original Violence Against Women Act was passed in 

1994, we have seen a 49 percent decrease in intimate partner violence. Unfortunately, the fiscal year 2003 appropriations for the Violence Against Women Act programming fell more than $100 million short of the authorized amounts. 

Last year, changes to the way the Victims of Crime Act funds 

were distributed resulted in the loss of more than $30 million to 

programs serving victims of domestic violence, sexual assault, child 

abuse, and other crimes. Moreover, funding for programs critical to 

the sustained safety of battered women, such as transitional housing, received no funding at all. Entities that currently work on the 

front lines to end domestic violence are experiencing large cuts in 

funding. 

If the United States Congress is serious about protecting women 

from domestic violence, whether they are pregnant or not, you 

must fully fund these programs that have already made so much 

difference in the lives of victims nationwide. Certainly there can be 

no doubt that a pregnancy lost due to domestic violence greatly increases that toll on a battered woman. We at NCADV wish to fully 

recognize and respond to that loss. However, the more appropriate 

means of dealing with this problem with respect to battered women 

is to provide comprehensive health care, safety planning, and domestic violence advocacy for victims. This solution would maintain 

the focus of any criminal prosecution on the intended victim of the 

violence, the battered woman, and make an important affirmative 
17

1Public Law 103–322 [H.R. 3355]; September 13, 1994. 2Public Law 106–386 [H.R. 3244]; October 28, 2000. 3 Bureau of Justice, Bureau of Justice Statistics, Homicide Trends from 1976–1999, (2001). 4Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., Goodwin, Mary M., Saltzman, Linda 

E., and Marks, James S., ‘‘Violence and Reproductive Health: Current Knowledge and Future 

Research Directions,’’ Maternal and Child Health Journal, Vol. 4, No. 2, 2000. 5Wiemann, Constance M., Agurcia, Carloyn A., Berenson, Abbey B., Volk, Robert, J. & 

Rickert, Vaughn I., ‘‘Pregnant Adolescents: Experiences and Behaviors Associated with Physical 

Assault by an Intimate Partner,’’ Maternal and Child Health Journal, Vol. 4, No. 2, 2000. 6 Horon, I. and Cheng D. ‘‘Enhancing surveillance for Pregnancy-Associated Mortality—Maryland, 1993–1998.’’ Journal of American Medical Association, Vol. 285, No. 11, pg. 1457. March 

21, 2001. Study examines the most common cause of death for pregnant women between the 

years of 1993 to 1998. 7Parker, B. et al. ‘‘Physical and Emotional Abuse in Pregnancy: A Comparison of Adult and 

Teenage Women’’. Nursing Research, Vol. 42, No. 3, pg. 173–7. 1993 8 Russo, Nancy Felipe and Jean Denious, Understanding the Relationship of Violence Against 

Women to Unwanted Pregnancy and its Resolution, (1999). In Beckman, Linda J. and S. Marie 

Harvey, eds. The new civil war. The psychology, culture, an politic of abortion. Washington DC, 

The American Psychological Association, pg. 211–234. 9Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., Goodwin, Mary M., Saltzman, Linda 

E., and Marks, James S., ‘‘Violence and Reproductive Health: Current Knowledge and Future 

Research Directions,’’ Maternal and Child Health Journal, Vol. 4, No. 2, 2000. 

step toward providing safety for her. If Congress wishes to protect 

the pregnancy, the way to do that is by protecting the woman. 

Thank you. 

Mr. CHABOT. Thank you. 

[The prepared statement of Ms. Fulcher follows:]

PREPARED STATEMENT OF JULEY FULCHER, ESQ. 

Good afternoon Mr. Chairman and Members of the Subcommittee. My name is 

Juley Fulcher and I am the Public Policy Director of the National Coalition Against 

Domestic Violence (NCADV). On behalf of the Coalition, I thank you for the opportunity to address the concerns of battered women who experience violence during 

their pregnancies. The National Coalition Against Domestic Violence is a nationwide 

network of approximately 2,000 domestic violence shelters, programs and individual 

members working on behalf of battered women and their children. My role here 

today is to advocate for increased safety for battered women, which in turn will lead 

to healthier pregnancies and births. Unfortunately, the ‘‘Unborn Victims of Violence 

Act’’ (H.R. 1997) does NOT provide the protection that battered women need to obtain safety. 

Historically, one of the major obstacles to eradicating domestic violence from the 

lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime. The hard work of dedicated domestic violence advocates 

on the front lines has slowly brought about a change in the way we treat the crime 

of domestic violence. States began toughening laws on domestic violence and enforcing existing laws in the late 1980s. In 1994 1 and 2000,2 Congress gave an important 

boost to this trend by passing the Violence Against Women Act and committing to 

a federal investment in protecting battered women and their children. As a result, 

we have seen increased criminal prosecutions of domestic violence nationwide. It is 

important that we continue this trend and recognize domestic violence threats, assaults and murders as the serious crimes that they are. 

One-third of all female murder victims are killed by an intimate partner.3 According to a summary of recent studies, 4% to 8% of all pregnant women in this country 

are battered by the men in their lives 4 with the highest rates of violence being experienced by pregnant adolescents.5 Studies now indicate that homicide is the number 

one killer of pregnant women.6 Women who experience abuse are more likely to 

delay prenatal care 7 and are at a substantially increased risk of domestic violence.8

Yet physicians do not usually screen for signs of domestic violence even though instances are more common than routinely screened for gestational diabetes or 

preeclampsia.9 As an attorney representing victims of domestic violence, I have seen 

the effects of this violence first hand. Several years ago, a client of mine lost a pregnancy due to domestic violence. There was a history of domestic violence in her case 

and she had sought assistance several times. While she was 8 months pregnant, her 

batterer lifted her up in his arms and held her body horizontal to the ground. He 

then slammed her body to the floor causing her to miscarry. No matter how many 

stories like this I hear, it never ceases to sicken me. I should note that in this case 

and others I have worked on, it was clear by the batterer’s words and actions that 
18

10 18 U.S.C. 2261(a). 11 18 U.S.C. 2261A. 12 18 U.S.C. 2262(a)(1). 13This number reflects actual indictments under 18 U.S.C. 2261, 2261A and 2262 through November, 2000. It does not include the largest category of federal domestic violence prosecutions, 

those brought under 18 U.S.C. 922(g)(8)—a statute that is not addressed by the ‘‘Unborn Victims of Violence Act.’’ 14 ‘‘Intimate Partner Violence, 1993–2001,’’ Callie Marie Rennison, Bureau of Justice Statistics 

Crime Data Brief, U.S. Department of Justice, Office of Justice Programs, February, 2003. 

his intent was to cause physical and emotional injury to the woman and establish 

undeniably his power to control her. We, as a society, are right to want to address 

this problem and protect women from such a fate. However, our response to the 

problem should be one that truly protects the pregnant woman by early intervention 

and prevention and not a reaction to a specific set of circumstances after the fact, 

however horrible and sad. 

The ‘‘Unborn Victims of Violence Act’’ is not designed to protect women and does 

not help victims of domestic violence. The goal of the Act is to create a new cause 

of action on behalf of the unborn and further a specific political agenda. The result 

is that the crime committed against a pregnant woman is no longer about the 

woman victimized by violence. Instead the focus often will be shifted to the impact 

of that crime on the unborn embryo or fetus, once again diverting the attention of 

the legal system away from domestic violence or other forms of violence against 

women. Moreover, passage of the ‘‘Unborn Victims of Violence Act’’ would set a dangerous 

precedent, which could easily lead to statutory changes that could hurt battered 

women. This bill would, for the first time, federally recognize that the unborn embryo or fetus could be the victim of a crime. It would not be a large intellectual leap 

to expand the notion of the unborn fetus as a victim in other realms. In fact, some 

states have already made that leap and in those states women have been prosecuted 

and convicted for acts that infringe on state recognized legal rights of a fetus. While 

the ‘‘Unborn Victims of Violence Act’’ specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent 

legislation that would hold her responsible for injury to the fetus, even for the violence perpetrated on her by her batterer under a ‘‘failure to protect’’ theory. Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage and, if she is financially or emotionally reliant on 

her batterer, she may be less likely to seek appropriate medical assistance if doing 

so could result in the prosecution of her batterer for an offense as serious as murder. The long-term public health implications of such a policy would be devastating 

for victims of domestic violence and all women. 

The harmful potential of this bill is, unfortunately, balanced by little or no additional protections for battered women and other women victimized by violence. The 

vast majority of domestic violence threats, assaults and murders—like other crimes 

of violence—are prosecuted by the state. While there are important federal laws to 

prosecute interstate domestic violence,10 interstate stalking 11 and interstate violation of a protection order,12 these are stop-gap statutes which are appropriately applied in a very small number of cases relative to the incidence of domestic violence 

nationwide. In fact, the federal domestic violence criminal statutes have been called 

into play only 130 times between 1994 and 2000.13 As the ‘‘Unborn Victims of Violence Act’’ would only apply in federal cases, the change in the law would do little, 

if anything, to address the crime of domestic violence in our country or other assaults on pregnant women. 

Federal programming already exists that positively impacts the lives of hundreds 

of thousands of battered women and their children. Since the original Violence 

Against Women Act was passed in 1994, we have seen a 49% decrease in intimate 

partner violence.14 Unfortunately, available services still do not come close to meeting the needs of victims. In a recent NCADV survey, as many as two-thirds of the 

victims seeking assistance at domestic violence shelters and programs were turned 

away last year due to lack of space. Since the passage of the Violence Against 

Women Act of 2000, the fiscal year 2003 appropriations for Violence Against Women 

Act programming fell more than 100 million dollars short of the authorized 

amounts. Last year, changes in the way Victims of Crime Act (VOCA) funds were 

distributed resulted in the loss of more than $30 million to programs serving victims 

of domestic violence, sexual assault, child abuse and other crimes. In Indiana, 1,185 

women and children were turned away this year due to the lack of funding. Michigan has been forced to make cuts of 5% to 10% in direct assistance to victims because of the reduction in VOCA funding. Ohio programs have lost over $2 million 

dollars in funding and California is struggling to keep its 120 domestic violence pro-
19

15 National Center for Injury and Prevention and Control. Costs of Intimate Partner Violence 

Against Women in the United States. Atlanta (GA): Centers for Disease Control and Prevention. 

2003. 

grams open. Moreover, funding for programs critical to the sustained safety of battered women such as transitional housing received no funding at all. Women and 

their unborn children can be helped substantially more by other programs. The cost 

of intimate partner violence exceeds $5.8 billion dollars in this country each year, 

not including the cost of the criminal justice process,15 yet entities that currently 

work on the front lines to end domestic violence are experiencing large cuts in funding. If the United States Congress is serious about protecting women from domestic 

violence, whether they are pregnant or not, you must fully fund these programs that 

have already made so much of a difference in the lives of victims nationwide. 

I hope you agree with me that the crime of domestic violence is a horrendous one, 

not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can 

be no doubt that a pregnancy lost due to domestic violence greatly increases that 

toll on a battered woman. We at the National Coalition Against Domestic Violence 

wish to fully recognize and respond to that loss. However, the more appropriate 

means of dealing with this problem with respect to battered women is to provide 

comprehensive healthcare, safety planning and domestic violence advocacy for victims. This solution would maintain the focus of any criminal prosecution on the intended victim of violence—the battered woman—and make an important affirmative 

step toward providing safety for her. If Congress wishes to protect the pregnancy, 

the way to do that is by protecting the woman.

Mr. CHABOT. Ms. Foster, you are recognized for the purpose of 

making a statement. Thank you. 

STATEMENT OF SERRIN M. FOSTER, PRESIDENT, FEMINISTS 

FOR LIFE OF AMERICA 

Ms. FOSTER. Thank you. 

Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is Serrin Foster, and I am the President of 

Feminists for Life of America. Feminists for Life is an education 

and advocacy organization that continues the work of the early 

American feminists who worked both for the rights of women and 

legal protection for the unborn. 

Feminists for Life is a member of the National Task Force to End 

Sexual and Domestic Violence Against Women. As a proud advocate of the Violence Against Women Act, we applaud the universal 

support by Members of Congress for VAWA—and might I add—for 

your work at the National Coalition Against Domestic Violence. We 

can all be proud that statistics show that violence against women 

has decreased since VAWA was enacted, but there is much work 

to be done. 

Feminists for Life has a track record of getting beyond deadlock 

on polarizing issues by addressing the root causes of problems that 

women face. One of the ways we do this is by listening to women 

and then prioritizing what women really want. 

Today I am pleased to speak from that perspective about an urgent question. What is the appropriate response to a woman who 

has lost her child due to an assault that she survived? What is the 

appropriate response to survivors when an assault takes the lives 

of both a pregnant woman and the child she carries? 

The victims are speaking loudly and clearly on this issue, and we 

need to listen. According to a 2-year study by the Center for the 

Advancement of Women, reducing violence against women is the 

number one priority of women. Women who are pregnant are at 

particular risk of being targeted for violence. In fact, recent studies 
20

by two different State health departments have shown that a leading cause of maternal mortality is not complications during pregnancy or childbirth; rather, it is homicide. We are hearing more 

and more horrible stories via mainstream media of pregnant 

women who are assaulted by those who do not want them to carry 

a child to term. 

A doctor was videotaped as he tried to poison his pregnant fiance. Another doctor attacked his girlfriend’s abdomen with a needle. A number of women have tried to kill the unborn child of another woman who was involved with the same man. Unwilling fathers have hired thugs to intentionally kill the unborn child. 

For every story we hear, there are countless more that go untold. 

Such is the story of Marion Syversen, a board member of Feminists 

for Life, who lost her unborn child when her abusive father threw 

here down a flight of stairs when she was pregnant. 

Women and their families who have survived such unthinkable 

violence are unequivocal: Justice demands recognition of and remedy for both their assault and the killing of their unborn child. 

The gruesome and well-publicized case of Laci Peterson and her 

unborn baby, Conner, prompted Americans to examine their own 

convictions on this issue. According to a Newsweek/Princeton Survey Research Associates poll, 84 percent of Americans believe that 

prosecutors should be able to bring a homicide charge on behalf of 

a fetus killed in the womb. 

Feminists for Life and our partners in the Women Deserve Better Campaign support the Unborn Victims of Violence Act because 

it would provide justice for the victims of Federal crimes of violence. 

Congresswoman Lofgren has introduced an alternative called the 

Motherhood Protection Act of 2003. Instead of recognizing a woman’s unborn child as an additional victim, it would, ‘‘provide additional punishment for certain crimes against women when the 

crimes cause an interruption in the normal course of their pregnancies.’’

We are not here to discuss an interruption. That implies something temporary, as if it were possible for the victim’s pregnancy 

to start back up again. And dare we ask, mother of whom? Motherhood is neither protected nor honored through the proposed Motherhood Protection Act. Instead, it tells grieving mothers that their 

lost children don’t count. 

Ten days ago in the Bronx, a 54-year-old man allegedly kicked 

and punched his 24-year-old girlfriend in the abdomen. Julie Harris was 9 months pregnant at the time. She went through labor 

only to deliver stillborn twins. The Motherhood Protection Act, 

which some people call the single victim substitute, would only recognize one of three victims. 

The family of the California murder victims, Laci and Conner Peterson, as Congresswoman Hart just entered into testimony, is explicitly urging Congress to pass the Unborn Victims of Violence 

Act, also known as Laci and Conner’s Law, and not the single victim substitute which Sharon Rocha, Laci’s mother and Conner’s 

grandmother, called, ‘‘a step away from justice.’’

The Unborn Victims of Violence Act would also avoid multiplying 

the pain of survivors of horrendous Federal crimes of violence such 
21

as the bombing in Oklahoma City or the terrorist attacks of September 11th. 

After years of trying to have a child, Carrie and Michael Lenz, 

Jr., were overjoyed to learn that she was carrying their son, whom 

they named Michael Lenz, III. Carrying a copy of the sonogram, 

Carrie went to work early that morning to show coworkers the first 

photo of baby Michael. She and Michael were killed, along with 

three other pregnant women and their unborn children, when the 

Alfred P. Murrah Federal Building exploded on April 19th, 1995. 

This father’s agony was multiplied later when he saw the memorial 

named only his wife, not his son as victims. 

Ms. FOSTER. In the eyes of the Federal Government, there was 

no second victim for this father to mourn. If the legal system does 

not recognize the loss of an unborn child, it becomes an unwitting 

agent of the perpetrator who robbed the survivors of the child and 

the life they would have had together. 

Women have a right to have children. On this we agree. But 

when a woman has this right taken away from her due to violence 

that kills the fetus in her womb, she needs and deserves the support of those on both sides of the abortion debate, those who support women’s rights. It is also worthwhile to note that outside the 

context of abortion, unborn children are often recognized as persons 

who warrant the law’s protection. 

Some have questioned whether it is reasonable to apply this law 

if the perpetrator is unaware that the woman is pregnant, especially if she is in the earliest stages of gestation. Neither the Unborn Victims of Violence Act nor the Motherhood Protection Act 

makes the distinction about the age of the fetus. But would anyone 

seriously suggest, especially those who advocate a right of privacy, 

that it is the woman’s responsibility to disclose her pregnancy to 

a potential attacker or murderer? 

In 1990, the Supreme Court of Minnesota answered that question in State v. Merrill. A man who killed a woman was responsible 

for two deaths even though the woman was just 28 days pregnant. 

The court said, ‘‘the possibility that a female homicide victim of 

child bearing age may be pregnant is a possibility that an assaulter 

may not safely exclude.’’

We cannot tell grieving mothers like Tracy Marciniak, who testified here today, that Zachariah did not count, and we mourn with 

you for him. We cannot tell Julie Harris, the mother of twins, that 

there was only one victim when there were three. And we cannot 

tell the families of Laci and Conner, Carrie and Michael, III that 

there was only one loss to mourn. 

The Motherhood Protection Act would deny these victims the recognition and justice they deserve. The women have spoken. Women 

want the justice promised by the Unborn Victims of Violence Act, 

and we are asking our federally elected officials to honestly answer 

the question in the case of Laci Peterson and baby Conner, in the 

case of Tracy Marciniak and baby Zachariah, was there one victim 

or were there two? Thank you. 

[The prepared statement of Ms. Foster follows:]
22

PREPARED STATEMENT OF SERRIN M. FOSTER

Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is 

Serrin Foster and I am the President of Feminists for Life of America. Feminists 

for Life is an education and advocacy organization that continues the work of the 

early American feminists who championed both the rights of women and legal protection for the unborn. 

Feminists for Life is a member of the National Task Force to End Sexual and Domestic Violence Against Women. As a proud advocate of the Violence Against 

Women Act, we applaud the universal support by Members of Congress for VAWA. 

I thank the Members of Congress here who have supported VAWA. We can all be 

proud that statistics show violence against women has decreased since VAWA was 

enacted. But there is much more work to be done. 

Feminists for Life has a track record of getting beyond deadlock on polarizing 

issues by addressing the root causes of the problems women face. One of the ways 

we do this is by listening to women and then prioritizing what women really want. 

Today I am pleased to speak from that perspective about an urgent question: What 

is the appropriate response to a woman who has lost her unborn child due to an 

assault that she survived? What is the appropriate response to survivors when an 

assault takes the lives of both a pregnant women and the child she carries? 

Sarah Norton, an early American feminist who was the first woman to seek admission to Cornell University, asked this question more than a century ago. Speaking of the then-common situation in which an unwilling father attempted to kill an 

unborn child, she asked, ‘‘Had the scheme been successful in destroying only the life 

aimed at, what could have been the man’s crime—and what should be his punishment if, as accessory to one murder he commits two?’’ (Woodhull and Claflin’s Weekly, November 19, 1870) 

Today’s victims are speaking loudly and clearly on this issue. We need to listen. 

According to a recent two-year study by the Center for the Advancement of 

Women, run by Faye Wattleton, former president of the Planned Parenthood Federation of America, reducing violence against women is the number one priority of 

women. Women who are pregnant are at particular risk of being targeted for violence. In fact, recent studies by two different state health departments have shown 

that a leading cause of maternal mortality is not complications during pregnancy 

or childbirth—rather, it’s homicide. For example, according to the Journal of the 

American Medical Association, a Maryland study concluded that, ‘‘A pregnant or recently pregnant woman is more likely to be a victim of homicide than to die of any 

other cause.’’

We are hearing more and more horrible stories via mainstream media of pregnant 

women who are assaulted by those who do not want them to carry a child to term.

• A doctor was videotaped as he tried to poison his pregnant fiance ́e.

• Another doctor attacked his girlfriend’s abdomen with a needle.

• A number of women have tried to kill the unborn child of another woman who 

is involved with the same man.

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

For every story we hear, there are countless more that go untold, such as the 

story of Marion Syversen, a board member of Feminists for Life, who lost her unborn child when her abusive father threw her down a flight of stairs when she was 

pregnant. 

Women who have survived such unthinkable violence are unequivocal: justice demands recognition of and remedy for both their assault and the killing of their unborn baby. The Unborn Victims of Violence Act would support justice for women 

who lose children as the result of a federal crime of violence. 

Many women do not survive such crimes, and their grieving survivors are equally 

unequivocal: justice demands recognition of and remedy for the killing of both victims, the woman and her unborn child or children. 

The gruesome and well-publicized case of Laci Peterson and her unborn baby, 

Conner, prompted Americans to examine their own convictions on this issue. The 

American people, too, were unequivocal. They recognize and mourn the loss of both 

mother and child. According to a Newsweek/Princeton Survey Research Associates 

poll released June 1, 2003, 84% of Americans believe that prosecutors should be able 

to bring a homicide charge on behalf of a fetus killed in the womb. This figure includes 56% who believe such a charge should apply at any point during pregnancy, 

and another 28% who would apply it after the baby is ‘‘viable,’’ i.e., of sufficient lung 

development to survive outside the mother. Only 9% believe that a homicide charge 

should never be allowed for a fetus. 
23

Feminists for Life and our partners in the Women Deserve Better campaign support the Unborn Victims of Violence Act because it would provide justice for the victims of federal crimes of violence. As victims, survivors, and the American people 

clearly demand, the Unborn Victims of Violence Act would recognize an unborn 

child as a legal victim when he or she is injured or killed during the commission 

of a federal crime of violence. 

Congresswoman Lofgren has introduced an alternative to the Unborn Victims of 

Violence Act, called the Motherhood Protection Act of 2003. Instead of recognizing 

a woman’s unborn child as an additional victim, it would ‘‘provide additional punishment for certain crimes against women when the crimes cause an interruption in 

the normal course of their pregnancies.’’

An ‘‘interruption?’’ That implies something temporary, as if it were possible for 

the victim’s pregnancy to start back up again. Dare we ask: mother of whom? Motherhood is neither protected nor honored through the proposed Motherhood Protection Act. Instead, it tells grieving mothers that their lost children don’t count. It ignores these mothers’ cries for recognition of their loss and for justice. It is a step 

backward in efforts to reduce violence against women. 

Ten days ago in the Bronx, a 54-year-old man allegedly kicked and punched his 

24-year-old girlfriend in the abdomen. Julie Harris was nine months pregnant at the 

time. She went through labor only to deliver stillborn twins. The Motherhood Protection Act, which some call the single victim substitute, would only recognize one 

of these three victims. 

The family of California murder victims Laci and Conner Peterson is explicitly 

urging Congress to pass the Unborn Victims of Violence Act, also known as Laci and 

Conner’s Law—not the single-victim substitute. Sharon Rocha, Laci’s mother and 

Conner’s grandmother, concluded a letter to Senators DeWine, Hatch, and Graham 

and Congresswoman Hart:

I hope that every legislator will clearly understand that adoption of such a single-victim amendment would be a painful blow to those, like me, who are left 

alive after a two-victim crime, because Congress would be saying that Conner 

and other innocent unborn victims like him are not really victims—indeed, that 

they never really existed at all. But our grandson did live. He had a name, he 

was loved, and his life was violently taken from him before he ever saw the sun.

The application of a single-victim law, such as the [Lofgren] amendment, would 

be even more offensive in the many cases that involved mothers who themselves 

survive criminal attacks, but who lose their babies in those crimes. I don’t understand how any legislator can vote to force prosecutors to tell such a grieving 

mother that she didn’t really lose a baby—when she knows to the depths of her 

soul that she did. A legislator who votes for the single-victim amendment, however well motivated, votes to add insult to injury.

The advocates of the single-victim amendment seem to think that the only thing 

that matters is how severe a sentence can be meted out—but they are wrong. 

It matters even more that the true nature of the crime be recognized, so that 

the punishment—which should indeed be severe—will fit the true nature of the 

crime. This is a question not only of severity, but also of justice. The singlevictim proposal would be a step away from justice, not toward it. For example, 

if Congresswoman Lofgren’s legal philosophy was currently the law in California, there would be no second homicide charge for the murder of Conner.

The Unborn Victims of Violence Act would also avoid multiplying the pain of survivors of horrendous federal crimes of violence such as the bombing in Oklahoma 

City or the terrorist attacks of September 11, 2001. 

After years of trying to have a child, Carrie and Michael Lenz, Jr. were overjoyed 

to learn that she was carrying their son, whom they named Michael Lenz III. Carrying a copy of the sonogram, Carrie went to work early the next morning to show 

coworkers the first photo of baby Michael. She and Michael were killed, along with 

three other pregnant women and their unborn children, when the Alfred P. Murrah 

Federal Building exploded on April 19, 1995. This father’s agony was multiplied 

later when he saw that the memorial named only his wife, not his son, as a victim. 

In the eyes of the federal government, there was no second victim. Timothy McVeigh 

was never held accountable for killing Michael Lenz’s namesake. 

If the legal system does not recognize the loss of the unborn child, it becomes an 

unwitting agent of the perpetrator who robbed the survivors of the child and the 

life they would have had together. 

Women have a right to have children. When a woman has this right taken away 

from her due to violence that kills the fetus in her womb, she needs and deserves 

the support of all those who champion women’s rights, including those who support 
24

legalized abortion. Columbia Law School Professor Michael Dorf, who is pro-choice, 

agrees: ‘‘Certainly pro-choice activists would oppose government-mandated sterilization. For similar reasons, they should support punishing feticide.’’

It is also worthwhile to note that outside the context of abortion, unborn children 

are often recognized as persons who warrant the law’s protection. Most states, for 

example, allow recovery in one form or another for prenatal injuries. Roughly half 

the states criminalize fetal homicide. Unborn children have long been recognized as 

persons for purposes of inheritance, and a child unborn at the time of his or her 

father’s wrongful death has been held to be among the children for whose benefit 

a wrongful death action may be brought. Federal law similarly recognizes the unborn child as a human subject deserving protection from harmful research. 

Some have questioned whether it is reasonable to apply this law if the perpetrator 

is unaware that a woman is pregnant, especially if she is in the earliest stages of 

pregnancy. 

Neither the Unborn Victims of Violence Act nor the Motherhood Protection Act 

makes a distinction about the age of the fetus. But would anyone seriously suggest—especially those who advocate a right to privacy—that it is a woman’s responsibility to disclose her pregnancy to a potential attacker or murderer? 

In 1990, the Supreme Court of Minnesota answered that question. In State v. 

Merrill, a man who killed a woman was responsible for two deaths, even though the 

woman was just 28 days pregnant. The court said: ‘‘The possibility that a female 

homicide victim of child-bearing age may be pregnant is a possibility that an 

assaulter may not safely exclude.’’

Knowing this may serve as a deterrent to future attacks on women of childbearing 

age. 

We cannot tell grieving mothers like Tracy Marciniak, who testified here today, 

that her son Zachariah didn’t count. We cannot tell Julie Harris, mother of twins, 

that there was only one victim when there were three. We cannot tell the families 

of Laci and Conner, or Carrie and Michael III, that they have only one loss to 

mourn. The Motherhood Protection Act would deny these victims the recognition 

and justice they deserve. 

Women have spoken. Women want the justice promised by the Unborn Victims 

of Violence Act. 

We are asking our elected Representatives to honestly answer the question in the 

case of Laci Peterson and baby Conner, was there one victim or two? 

Those who support the single-victim substitute would deny women justice. 

On behalf of women and families who have lost a child through violence, a father 

who has lost both his wife and child through terrorism, and Laci and Conner’s family, I urge unanimous support for this bill, not the single-victim substitute.

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

STATEMENT OF PROFESSOR GERARD V. BRADLEY, 

UNIVERSITY OF NOTRE DAME SCHOOL OF LAW 

Mr. BRADLEY. Mr. Chairman and Members of the Subcommittee, 

thank you for the opportunity to address the constitutionality of 

the Unborn Victims of Violence Act of 2003. The constitutional 

questions about the act seem to me are two. First, is it within Congress’ enumerated powers, and second, if it is within Congress’ enumerated powers, does the act nevertheless run afoul of Roe v. Wade

and cases following it concerning women’s reproductive liberty. 

To answer the first question, there might really seem to be a 

question. Of course, under our Constitution, Congress has no general police power to prohibit private violence. You say a job assignment reserved for the States—a job assignment which the Supreme 

Court has emphasized in several cases over the last few years in 

the so-called new federalism cases exemplified by U.S. v. Lopez. I 

think there really is no question. As to the first question, Congress 

surely does have enumerated powers sufficient to sustain this act, 

and that is basically because this act does not extend Congress’

regulatory reach. No act which is presently lawful is made unlawful by this act. It is this act relies on what might be called predi-
25

cate offenses—that is, offenses found elsewhere in the Federal 

criminal code—and adds to them an additional count and therefore 

enhanced punishment. The act says whoever engages in conduct 

that violates any of the listed provisions is guilty of the offense of 

assaulting the unborn child. So it is to be compared in this regard 

to the RICO statute, which is different in some respects, but nevertheless, RICO does not extend Congress’ reach over primary conduct of individuals. 

The second question, I think the leading question, the constitutional question about this act, has to do with Roe v. Wade, the 

cases following it, and women’s reproductive rights. 

I remind you that nothing in this act affects, much less unconstitutionally restricts a woman’s right to terminate her pregnancy. 

The current expression of the constitutional standard is the undue 

burden test of Casey v. Planned Parenthood, affirmed by the Court 

3 years ago in Stenberg v. Carhart. I refer the Committee Members 

to what I call the safe harbor provision of section (c) of the act. 

This is an air tight immunity thrown up around the pregnant 

woman and her unborn child by this act. Simply put, no woman 

may be prosecuted under this act with respect to her unborn child. 

This is all that Roe requires. It does not require more. 

Now some say that it does require something; this act requires 

something inconsistent with Roe. I take this to be Mr. Nadler’s position. He says it is inconsistent with Roe and, therefore, should be 

opposed on constitutional grounds. I disagree. Mr. Nadler said, in 

his opening remarks, that the Roe court said, and this is correct, 

that the unborn have not been recognized as persons in a whole 

sense. Well, maybe not, but this act refers to or pertains to part 

of legal protections that are afforded to persons. It refers to that 

part of personhood, one might say, which has to do with the right 

to be free of intentional assault or killing. Mr. Nadler rightly says 

that the court in Roe said, and I paraphrase, that the 14th amendment could not be read to establish or understood to include the 

unborn as, you might say constitutional persons. That is true as far 

as it goes, but this act is not an exercise of Congress’ power under 

the 14th amendment. I think it would be section 5 if it were. So 

simply put, this is not an attempt by Congress to establish constitutional personhood. Congress is not here trying to say that the 

unborn are persons for purposes of the 14th amendment. 

Now besides those two objections one might say in a more general sense that there is an opposition between Roe and this act because this act is tantamount to recognizing the unborn as persons 

in some ordinary legal sense. Well, that seems to me the case; that 

is to say, the arguments. But again, I disagree with Mr. Nadler. 

The Roe court did not itself say that the unborn are not persons. 

The Roe court said on the other hand, the judiciary, including the 

Supreme Court, is not in a position to speculate as to the answer 

to the question of when life begins. In any event, I think the key 

case here is not Roe but the Webster decision of 1989, where the 

Supreme Court was confronted with an act, in that case an act by 

the State of Missouri, which said that the life of each person began 

at conception. Some people thought and argued in the court below 

in that case that this adopted a theory of when life begins and that 

doing so was contrary to Roe v. Wade. But the Supreme Court said 
26

no. The Supreme Court in Webster said of its own Roe decision that 

Roe meant only that a State could not justify an abortion regulation, otherwise invalid under Roe v. Wade, on the ground that life 

began at conception. But there, as here, there is nothing otherwise 

invalid about this act under Roe v. Wade. See again the safe harbor 

provision of subsection (c). So Congress, under Roe, Webster, and 

for that matter, Casey v. Planned Parenthood, is as free as was the 

State of Missouri in the late 1980’s to conclude that outside the parameters of Roe, therefore outside the parameters of a woman’s 

right to terminate her pregnancy, there are two victims, that the 

unborn are persons with at least a right to be free of assault and 

intentional killing. 

Now, final word about this act’s treatment of assaults upon pregnant woman. I speak here in ordinary legal terms and as a former 

prosecutor from Manhattan, and I refer or compare this bill to the 

leading alternative, Representative Lofgren’s version, which of 

course adds a count, enhanced punishment, but still retains the notion of there being one victim in the case of assault upon a pregnant woman. I surely agree with the central notion of Representative Lofgren’s approach that a mother suffers grievously with the 

injury or death of her child, born or unborn. This loss is particularly acute where a child is killed by a criminal act, but the criminal law does not generally treat crimes, injuries, assaults against 

children as any kind of aggravation of an accompanying crime 

against a parent. 

Think of the case where a single violent act, such as planting a 

bomb or starting a fire, kills an entire family. In such cases, for 

each victim is a separate count, complete unto itself, for the injury 

or death of the particular person who is the subject of that count. 

My observation here is not that the alternative version proposed by 

Representative Lofgren is unconstitutional. I don’t think it is unconstitutional. But it seems to me that this act’s approach—separate victims, separate counts, and thus additional punishment—is 

not only constitutional but also more in line of the normal operation of criminal law principles than the alternative. 

Thank you again to Members of the Committee. 

[The prepared statement of Mr. Bradley follows:]

PREPARED STATEMENT OF GERARD V. BRADLEY

I am grateful to the Subcommittee for this opportunity to address the constitutionality of the Unborn Victims of Violence Act of 2003, also known as ‘‘Laci and 

Conner’s Law.’’ [Hereafter, ‘‘Act’’.] 

The first question about the constitutionality of the Act is not whether it violates 

any right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade. That would be the first question were we talking about 

a bill in a state legislature. The first question when looking at proposed federal legislation is whether some power enumerated in the Constitution authorizes Congress 

to act. The national government possesses no general police power to prohibit private violence. That is, basically, a job for the states. Especially in light of the recent 

revival of judicially enforceable limits upon Congress’s commerce power—see U.S.

v. Lopez—and the narrow reading of Congress’s ‘‘enforcement’’ power under Section 

5 of the Fourteenth Amendment in City of Boerne v. Flores, one might doubt 

Congress’s power to protect unborn children from private violence. 

There is no question. The Act does not engage these recent developments. There 

is no doubt of its constitutionality lurking in the so-called ‘‘new federalism,’’ as 

found (for example) in the Violence Against Women Act case, U. S. v. Morrison. 

Why is there no question about Congress’s affirmative power to pass the Act? Because the Act does not extend Congress’s reach; no primary conduct which is pres-
27

ently free of federal regulation will be regulated if the Act becomes law. No conduct 

which was lawful is to be unlawful; no conduct which was legal is to be illegal. 

The Act in this regard is comparable to the Racketeer Influenced and Corrupt Organizations Act—RICO. RICO relies upon (what it expressly calls) ‘‘predicate’’ offenses—and then lists them, as does the Act—in order to set up what is essentially 

an enhanced punishment statute. The Act relies upon predicate acts for its constitutional hook, one might say. If there is any question about the constitutionality of 

its reach, then, it is a question of the constitutionality of the ‘‘predicate’’ offense, and 

not about this Act. 

The Act relies upon established criminal law principles of transferred intent to 

add a new offense to an already criminal act. The basic idea is simple: a bad actor 

with the requisite malice to, in the language of the bill, ‘‘violate [ ] any of the provisions of law listed in subsection (b),’’ may be charged with an additional violent offense. Some persons might object to this feature of the Act, saying it unfairly penalizes a criminal for the possibly unforeseeable effects of his acts. I grant that in some 

cases an assailant charged under this Act might not know that his victim is pregnant. But I deny that it is unfair to treat this assailant as the Act would. Our hypothetical assailant is treated like all other criminals, who are obliged to take their 

victims as they find them. 

The classic expression of this common feature of criminal liability is the ‘‘egg-shell 

skull’’ rule. Consider A and B, who knock C and D, respectively, over the head with 

a glass. C is a veteran boxer, and is scarcely dazed. A is thus guilty of, at most, 

misdemeanor assault and gets a conditional discharge. D has a plate in his head 

due to an old sports injury, and dies from a brain hemorrhage. B is guilty of homicide, probably manslaughter, and goes to jail for a long time. 

This established principle also illustrated in felony murder statutes, where the 

malice manifested in the commission of a felony is transferred to what may even 

be an accidentally caused death. So, for example, an arsonist who honestly believes 

the building he torches is unoccupied is nonetheless indictable for felony murder if, 

by chance, someone is inside, and is killed. 

The leading constitutional question about the Act is undoubtedly about Roe v. Wade and its progeny. But nothing in the Act affects, much less unconstitutionally 

restricts, a woman’s right to terminate her pregnancy. (The current expression of 

the constitutional standard is the ‘‘undue burden’’ test of Casey v. Planned Parenthood, affirmed by the Court in Stenberg v. Carhart.) I can scarcely imagine language more adequate to the preservation of the right to abortion than that found 

in section (c) of the Act. Not only are the mother and all those cooperating with her 

in securing an abortion completely immunized against all potential liability. No 

woman may be prosecuted under this Act ‘‘with respect to her unborn child.’’ No 

woman engaged in predicate criminal conduct may be prosecuted for harm to her 

child, even where she did not intend to abort. So, a woman engaged in a hijacking 

or assault upon a federal juror or in animal terrorism or in any covered activity and 

who, as a result (of flight or some mishap) causes harm or death to her own fetus, 

is beyond prosecution under this Act, even though she may be liable for hijacking 

or assault upon a juror or animal terrorism. The Act simply does not inhibit the 

woman’s freedom to choose whether to bear a child or not. 

Someone might object that the Act, because it protects a child in utero to practically the same extent as other persons, is somehow inconsistent with Roe or its 

progeny. Is there no difference, the objection might hold, between this Act and a 

flat Congressional declaration that the unborn are persons? And is not that declaration inconsistent with Roe? 

The answer to this challenge would very likely have to be yes if the Supreme 

Court in Roe or some other case held that the unborn are not persons. But the Court 

has never so held. The Roe court said that it did not ‘‘need [to] resolve the difficult 

question of when life begins’’ (410 U.S. at 159). The Court there said the ‘‘the judiciary . . . is not in a position to speculate as to the answer.’’ (Id.) In no general or 

broad way, moreover, did the Court hold that the states or the Congress operated 

under a similar disability. All that the Court held in this regard was that Texas 

‘‘could not override the rights of the pregnant woman by adopting an answer to the 

question of when life begins.’’ (See 410 U.S. at 162). But this Act does not affect, 

much less ‘‘override,’’ the rights of any pregnant woman. The Roe court opined that 

the unborn were not to be considered persons in the ‘‘whole’’ sense, an opinion consistent with treating the unborn as persons for some purposes, like inheritance, tort 

injury, and (here) third party assaults. 

This understanding of Roe was explicitly confirmed by the Supreme Court in the 

1989 Webster decision. There the state of Missouri had legislated that the ‘‘life of 

each human being begins at conception,’’ and the ‘‘unborn children have protectable 

interests in life, health, and wellbeing.’’ The 8th Circuit Court of Appeals seems to 
28

have adopted the view of Roe stated as an ‘‘objection’’ here, that the state had, in 

light of Roe, ‘‘impermissibl[y]’’ adopted a ‘‘theory of when life begins.’’ But the Supreme Court reversed this part of the 8th Circuit holding, stating that its own prior 

decisions, including Roe, meant ‘‘only that a state could not justify an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the 

state’s view.’’ (emphasis added). Since this Act is no way questionable under Roe

apart from the viewpoint issue, the matter is settled: Congress is as free as was the 

state of Missouri to conclude, and to enforce outside the parameters of Roe, its view 

that life begins at conception. If there remains something anomalous about the situation, it is an anomaly engendered by Roe, and not by this Act. 

A final word about this Act’s treatment of assaults upon pregnant women, in comparison with the leading alternative: enhanced punishment for (what would remain) 

a single count of assault. I surely agree with the central notion of the alternative 

(a notion entirely consistent with this Act), that a mother suffers grievously with 

the injury or death of her child. This loss is particularly acute where the child is 

killed by a criminal act. But the criminal law does not generally treat crimes 

against children as aggravations of an accompanying crime against a parent. (Think 

of the case where a single violent act, such as planting a bomb or starting a fire, 

kills an entire family.) For each victim, a distinct count, complete unto itself, for 

the injury or death of that particular individual is the norm. 

The facts to which this Act would apply are these: a woman carries a child in 

utero, and does not seek an abortion. For all the world can see, she considers that 

child her baby, to be treated as such by everyone: her doctors, her family, the law. 

Upon that child’s death she suffers, too, of course, but does she suffer more, or differently, than the woman who loses a newborn to a crime? A toddler? Who is to say? 

Is there any general answer? 

My point is not that a simple enhancement of punishment is unconstitutional. But 

I do think this Act’s approach—separate victims, separate counts, and thus additional punishment—is much more in line with the normal operation of criminal law 

principles than is the leading alternative.

Mr. CHABOT. Thank you very much. And panel Members will 

now have an opportunity to question the witnesses for 5 minutes, 

and I will start with myself. Let me first of all begin by clearing 

up the record a bit. Ms. Fulcher, you had stated that fiscal year 

2003 appropriations fell more than 100 million short of what was 

authorized for that year. But you failed to mention that funding for 

the Violence Against Women Act was actually boosted by more 

than 110 million from fiscal year 2001 to 2002 for a total of $517.22 

million. That is actually a 25 percent increase in that 1 year alone 

and an increase when you consider the budget as it currently is, 

pretty substantial increase. And the claim that we are not adequately funding the Violence Against Women Act and related programs I think is very misleading and a mischaracterization of the 

facts, but let me get on with the questions. 

Mrs. Marciniak—— Ms. FULCHER. Mr. Chairman, may I address that comment? 

Mr. CHABOT. When I ask you a question you can. 

Thank you, Ms. Marciniak, for being here and courageously telling us your very tragic story. Let me first of all say, at least as one 

Member, there is no question in my mind that in that photo over 

there, there are two victims and two very tragic victims, no question about that. You stated in your testimony that your attacker 

said on a TV program that had he thought he could be charged 

with the killing of an unborn baby that he never would have beaten you. Based on this testimony, do you think the Unborn Victims 

of Violence Act could serve as a deterrent to individuals who might 

attack a pregnant woman, and why do you think that? 

Mrs. MARCINIAK. I think so because if you look at the other laws, 

if you look at a drunk driver, if they know they can get punished 

for that crime, they are going to think twice. If an attacker of a 
29

pregnant woman knows that they can get prosecuted for harming 

or killing that woman’s child, they are going to think twice before 

they do it. 

Mr. CHABOT. And your husband actually stated that. 

Mrs. MARCINIAK. And he stated that if he knew that there was 

a law that could have prosecuted and convicted him for murdering 

his own son, he wouldn’t have done it, and that was on national 

TV. 

Mr. CHABOT. Ms. Fulcher, in your testimony you criticize H.R. 

1997 because it is, ‘‘not designed to protect women.’’ You heard Ms. 

Marciniak’s testimony that her husband has said that he would not 

have attacked her had he known he could be prosecuted for injury 

or death of their unborn baby. Is it still your contention that the 

Unborn Victims of Violence Act will not deter violence against 

pregnant women? Yes or no. 

Ms. FULCHER. The reality is——

Mr. CHABOT. Did you say yes? 

Ms. FULCHER. I am trying to answer the question. We have plenty of laws on the books that allow us to prosecute a batterer for 

his crimes. They still continue to do that. Yes, we need to hold perpetrators completely accountable. This is one of many attempts to 

try to do that, and there are other ways that could do it more effectively. 

Mr. CHABOT. On that same note, you also said that by recognizing the unborn child as the victim of a crime in addition to the 

child’s mother, ‘‘the focus often will be shifted to the impact of that 

crime on the unborn fetus, once again diverting the attention of the 

legal system away from domestic violence or other violence against 

women.’’ If that is your position, do you also believe that protecting 

born children from violence diverts attention away from the violence that might be committed against their mothers? 

Ms. FULCHER. No, but the particular bill in question only addresses the violence against the unborn. In fact, it does not recognize two victims, but only one. 

Mr. CHABOT. Well, right now if somebody harmed a mother and 

her child, there would be two separate crimes, no question about 

that. In this particular instance, we are saying that there ought to 

be a separate charge and a separate penalty for harming the unborn child as well. 

Ms. Foster and Professor Bradley, let me ask you a question. Do 

you think that strengthening protections for children born or unborn will erode current statutes protecting women from violent 

crime? And we will start with you, Ms. Foster. 

Ms. FOSTER. I need a booster seat, too. I don’t see any problem 

with the Unborn Victims of Violence Act in this regard, no. I think 

that it is—we shouldn’t be concerned about doing all things in 

every bill, and I do not think that protecting women is at odds with 

punishing a perpetrator. I think they are both laudable goals. And 

this bill, why we support it—and the Women Deserve Better Task 

Force as well as Feminists for Life—is because we recognize the 

fact that knowing that a woman may be pregnant may be a deterrent to a perpetrator who may attack a woman of child bearing 

age. We agree with that and support that. And of course, we also 

want programs that prevent and support and help women and 
30

batterers to get over the problems that they have in terms of anger 

management. We don’t see these things as mutually exclusive. 

Mr. CHABOT. Thank you. Professor Bradley? 

Mr. BRADLEY. My answer is no. It won’t divert the protections of 

pregnant woman. Indeed, it will enhance them to the extent that 

it gives prosecutors another weapon in the arsenal against domestic violence and assault upon pregnant women. 

Mr. CHABOT. Thank you. My time has expired. Gentleman from 

New York is recognized for 5 minutes. 

Mr. NADLER. Ms. Fulcher, would you answer the question that 

the Chairman didn’t permit you to answer? 

Ms. FULCHER. Yes. I would be happy to. As I am sure this Subcommittee knows, the Violence Against Women’s Act of 1994 was 

reauthorized in 2000 by an overwhelming majority of the House 

and Senate because everyone recognized how powerful and effective 

it had been. We greatly increased the amounts of money that were 

authorized because of that, and that is the reason why we saw an 

increase in funding in the years you mentioned. But the reality is 

that we are still turning away as many as two-thirds of the women 

who are seeking assistance in trying to leave a violent relationship. 

And in my mind, no, there is not enough being done by the United 

States Congress. So I think at a minimum, we need to be fully 

funding the amounts of money that were authorized overwhelmingly by Congress, and we should be going a step further to make 

sure that no woman has to be turned away from services that she 

needs. 

Mr. NADLER. The budget is still greatly inadequate. If we were 

serious about addressing this, we would increase that budget, fully 

fund the act? 

Ms. FULCHER. Absolutely. 

Mr. NADLER. Next question, first Ms. Fulcher, then Ms. 

Marciniak. Ms. Marciniak stated that this bill would be a deterrent 

if her husband knew that he could be prosecuted for damaging the 

fetus or killing the fetus and he would not have done it. Ms. 

Fulcher, assuming the truth of that, which I do, would the Lofgren 

bill be just as much a deterrent? 

Ms. FULCHER. Absolutely. The penalties are the same, and as a 

matter of fact, the Lofgren bill goes a step further by not just recognizing the unborn as a victim but by recognizing the unity of the 

two as a victim in the State in which they were a victim. 

Mr. NADLER. Mrs. Marciniak, do you think—why do you disagree, or do you, that the Lofgren bill would also be a deterrent at 

least to the same extent? 

Mrs. MARCINIAK. The Lofgren bill only recognizes one victim. 

There are two victims. 

Mr. NADLER. That is a different question. In terms of someone 

worried about if I caused the—if I damaged the fetus of my pregnant wife, I might be prosecuted beyond the point than if I just hit 

her and she weren’t pregnant. Why would there be any psychological deterrent less or more for that guy? 

Mrs. MARCINIAK. I am not exactly understanding what you are 

asking in that. 

Mr. NADLER. Never mind. Professor Bradley, I was very struck 

by your remarks that this bill does not in any way establish a per-
31

son, does not in way establish that a fetus is a separate person, 

does not undermine the—does not go against the comments of Roe

v. Wade, et cetera, et cetera. I am struck by the fact that every single other person who has testified, my colleagues on this side of the 

aisle, Ms. Foster, say exactly the opposite, that the whole purpose 

of this bill is to establish that the fetus which was killed, it is a 

separate crime, it is a separate person. Do you agree with them or 

not? And if you agree with them, how does this not, again forgetting the question of penalties, if the main difference between this 

bill and the Lofgren bill is that this establishes the fetus as a crime 

against a separate person, how does this not establish the fetus as 

a separate person and thereby undermine the various precedents 

that the Supreme Court used in Roe v. Wade itself? 

Mr. BRADLEY. I agree with the panelists and, I think, rather disagree with what you said. 

Mr. NADLER. The question is how can you both be right? 

Mr. BRADLEY. We can both be right, but I think you are wrong. 

I didn’t say that this bill doesn’t establish at least in some sense, 

the ordinary legal personality of the unborn. What I did say, and 

I do believe, that it is not an attempt by Congress to establish on 

constitutional grounds for purposes of the 14th amendment that 

these are, for lack of a more precise term, constitutional persons 

within the meaning of the 14th amendment. Now Roe says something about that. Maybe it is obscure at points, but surely Roe

talks about that prospect. But I take it that is not at issue here. 

Here, in a limited way, Congress is exercising a kind of ordinary 

police power with regard to Federal jurisdiction and that power is 

sufficient to recognize the unborn as persons, at least for the limited purpose of protecting their lives. 

Mr. NADLER. Without any impact on the question of the—their 

being persons under the 14th amendment? 

Mr. BRADLEY. Yes. 

Mr. NADLER. I am glad to hear that, and I hope that goes into 

the record because I think that is the real purpose of the bill. Let 

me ask Ms. Foster; you take issue with the use of the phrase 

‘‘interruption in the normal course of pregnancy’’ in the Lofgren 

bill. The sentence goes on to say, ‘‘resulting in prenatal injury (including termination of the pregnancy).’’ The bill before the Committee uses the term ‘‘death of or bodily injury to a child who is 

in utero.’’ What besides prenatal injury or miscarriage do you think ought 

to be covered? Would you urge the gentlewoman from California to 

add whatever else that is to her bill as well? 

Ms. FOSTER. I think what our problem with this bill is that it 

doesn’t recognize the loss. The use of the word ‘‘interruption,’’ I 

think, was carefully chosen and most people understand. 

Mr. NADLER. Excuse me, but that is not what you said. Interruption in the normal course of pregnancy resulting in prenatal injury, 

including termination of the pregnancy. So we are not talking 

about a temporary interruption, as you implied in your statement, 

as you stated in your statement. We are talking about an interruption resulting in prenatal injury, including termination of the pregnancy, which seems to me to be the equivalent of the phrase in the 

other bill, the main bill, the one before us, death or bodily injury 
32

to a child who is in utero. Do you see any difference in those 

phrases or was that just verbiage? 

Mr. CHABOT. The gentleman’s time has expired, but you can answer the question. 

Ms. FOSTER. I recognize that a pregnancy can be terminated by 

a miscarriage, by abortion, by this kind of violence and also by live 

birth. So there is a lot of different ways a pregnancy can end, one 

of them a very happy way with a happy, healthy, live child. I think 

what is missing here is answering the question that women are 

asking, will you recognize the loss of my son or daughter, and that 

is what I am here today to advocate. 

Mr. CHABOT. The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5 minutes. 

Ms. HART. Thank you, Mr. Chairman. And actually before I get 

into my questions on that point I want to add something that neither the Lofgren language nor Mr. Nadler seem to recognize, a 

movement that really has been prevalent in both the Federal Congress and on State legislatures over the last 15 years, which is to 

make sure that you are recognizing victims of crimes. It is victims’

rights. That is part of what this bill is all about, that a family has 

a grave loss and that is a big, big part of this. Unfortunately, the 

other language does not recognize that family’s loss, and that is 

what this is really all about. 

I would like to start with a question. Ms. Marciniak, thank you 

for coming again and helping to illustrate the terrible loss that you 

and your family suffers and for the rest of your life. You stated in 

your testimony that your attacker had mentioned this on TV, that 

if he thought he would be charged with that killing—you already 

answered the question that the Chairman had asked, that he said 

he wouldn’t have hit you. 

Mrs. MARCINIAK. Correct. 

Ms. HART. Do you think he was motivated by something that was 

different than other people who would attack a pregnant woman? 

Was there something unique that motivated him? 

Mrs. MARCINIAK. No. 

Ms. HART. You think the act we are considering would be a deterrent to others? 

Mrs. MARCINIAK. Oh, yes. 

Ms. HART. I would like to go on, I think, to Professor Bradley. 

Opponents of the bill argue and also Ms. Fulcher today argue that 

recognizing the crime against the unborn child creates a whole 

range of dangerous legal consequences. Ms. Fulcher stated that the 

legislation holding a woman responsible for injuries inflicted on her 

unborn child is possible if this bill would pass. Others have argued 

that suit could be brought on behalf of the fetus to seek Federal 

benefits for civil rights claims. 

Do you know of any State that has this type of legislation in 

place where an unborn victim law resulted in any such extensions 

of the law, and do you believe that there is a possibility of this kind 

of a consequence? 

Mr. BRADLEY. I don’t think there is a possibility because of this 

law. Now whether Congress has the power and if it does, whether 

it wants to use it to create a civil rights action on behalf of the unborn child survivors is a question I haven’t thought about, but it 
33

may well have the power to do so and, perhaps, it should. But 

nothing in this law leads logically to that, and certainly no court 

would infer from this law a cause of action. It seems to me that 

this law does not compel any particular unfortunate result if you 

do think those are unfortunate results. 

Ms. HART. Also regarding that issue, we specifically state in our 

language that this would not apply to a woman’s action upon herself. Is that something that a court would be likely to misconstrue? 

Mr. BRADLEY. I can’t imagine how. Courts have proven themselves willful at times, perhaps in the last few weeks especially. 

But I can’t imagine language more clear and direct to the purpose 

to throw a complete immunity around a pregnant woman with regard to all of her acts concerning that unborn child. I can’t imagine 

language more clear and direct. 

Ms. HART. Thank you. Ms. Fulcher, I want to thank you for your 

work against domestic violence. In my 10 years as a State Senator 

and here, I have been working with different groups and working 

obviously to obtain funding with different programs in my district 

to help victims and to help make sure we fund the programs that 

help prevent domestic violence as well. You stated in your testimony that as a result of the passage of the Violence Against 

Women Act we have seen an increased number of criminal prosecutions of domestic violence nationwide. And I think that is fantastic, 

and we have seen it in our region as well when we look at the 

numbers. Would you—from some of your statements, it seems that 

you may think that this act may harm that or reverse this trend 

and end up decreasing prosecutions for domestic violence. Am I 

reading something in your testimony? 

Ms. FULCHER. I think you are reading something into it. I am not 

saying that it would end up decreasing the prosecutions for domestic violence necessarily, but that it is not doing anything to provide 

added safety for victims to prevent these crimes from happening to 

them. 

Ms. HART. It isn’t actually—you know every law cannot do everything. We have a number of opportunities here in the Congress to 

help do those things. And one of them is a bill, and a lot of my 

other colleagues have sponsored that is sponsored by—the main 

sponsor is Rob Simmons from Connecticut and deals with VOCA, 

the Victims of Crime Act, which was one of those laws passed in 

the Nation’s awakening really to facing the fact that we have victims who are not being attended to and are suffering during the 

time that the prosecutions are going on and later. I have supported 

Representative Simmons’ bill. And for those of you who are not familiar with it, it would increase funding for victims of domestic violence and programs to help prevent it as well by removing the cap 

for all the money that comes in for crime victims that go back to 

the crime victims because unfortunately some of that money ends 

up going back to the general fund. So that is a way for us to do 

that. This bill is focused on a different issue, and I am concerned 

that if we can approach your concern from a different way, which 

we are doing and will continue to do, why would you oppose the 

bill? 

Mr. CHABOT. The gentlelady’s time has expired, but you can answer the question. 
34

Ms. FULCHER. The reason for our opposition is our concern about 

how this particular piece of legislation may end up harming women 

and possibly also harming their pregnancies because of their possible reduced willingness to seek appropriate medical attention 

under these violent circumstances because they don’t want their 

batterer to have to face a charge of murder. 

Ms. HART. Mr. Chairman, if I may. 

Mr. CHABOT. Ask unanimous consent for an additional 1 minute. 

Ms. HART. Thank you, Mr. Chairman. I understand that concern. 

I have worked with volunteers who, you know, man our 24-hour 

phone lines and things back home for battered women. It is true 

that a lot of women continue to fear. But more and more, they have 

opportunities to get out, whether they are financially able to support themselves or not. And it seems to me that that really takes 

us backward, and it would keep women in a situation that they 

really should get out of for both them and their children. And I understand the fear and the concern, but I think we need to find a 

better way to address it and certainly not by ignoring the fact that 

a child has been lost. 

Mr. CHABOT. Thank you. The gentleman from Virginia, Mr. 

Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, there is 

general agreement that crimes against pregnant women are more 

heinous than crimes against others. This bill is here before the 

Constitution Subcommittee for obvious reasons as we have heard. 

So, Professor Bradley, I just want to ask you a couple of questions 

and maybe kind of technical. You noted that because it is a Federal 

criminal statute, we have limited jurisdiction, particularly highlighted by the Lopez decision, and that there is a list of Federal 

crimes that are predicates to any action under this bill. Let me ask 

the first question, there is no provision for mens rea. There is no 

specific intent to harm the fetus, not even the requirement that you 

knew that the woman was pregnant? 

Mr. BRADLEY. That is right. 

Mr. SCOTT. Separate crimes generally require separate mens rea. 

How would this fair under attack on that point? 

Mr. BRADLEY. It is unusual for a criminal statute not to have a 

particular set of mind attached to it knowingly, wittingly, recklessly, but it is not unknown although it is unusual, and this operates in a way that several types of statutes do operate. Felony murder is one example or, as the saying goes, you take your victim as 

you find him or her. And my answer—I guess I would incorporate 

in my answer the comment I made earlier, I think it was by Ms. 

Marciniak, quoting a Minnesota court, saying to the effect, look, a 

person who assaults a woman of child bearing age just runs the 

risk that she is pregnant and will have to bear the consequences 

of injury to an unborn child if she is. That strikes me as correct 

and not unfair to the defendant in that case. It is an unusual circumstance, but not unknown. 

Mr. SCOTT. Well, let me see how this would work when you 

string all the statutes together, one is section 242, which is the 

color of State law statute. If a police officer were illegally arresting 

someone who subsequently had a miscarriage and he didn’t know 
35

she was pregnant and didn’t intend to harm the fetus and the fetus 

died, is he looking at murder? 

Mr. BRADLEY. Not really. First, that person, I guess the police officer in your example, would have to commit another Federal 

crime. 

Mr. SCOTT. Violation of section 242? 

Mr. BRADLEY. You have to commit another offense, which would 

be defined elsewhere in title 18. 

Mr. SCOTT. Violation of title 18, section 242 depriving any person 

of Federal, legal, or constitutional rights. And subsequently or during the illegal arrest, there is a miscarriage. Is the police officer 

looking at a murder rap? 

Mr. BRADLEY. Well, no, if it is a miscarriage—the officer’s act 

would have had to cause the death of that child. If it caused the 

miscarriage, there could be liability for homicide. I am not sure if 

it would be murder. 

Mr. SCOTT. The way the bill reads, you are guilty of the same 

punishment provided under Federal law for that conduct had that 

injury or death occurred to the unborn child’s mother, that is 

death. So you would be looking at a homicide. 

Mr. BRADLEY. Right. I think that is correct. 

Mr. SCOTT. The police officer would be looking at a homicide. 

There is also provisions in here for drug dealers. If a person is involved in a major drug conspiracy, that is part of a drug conspiracy, which means you don’t have to be the kingpin but just part 

of it, if the drugs cause a miscarriage, you are looking at a murder 

rap? 

Mr. BRADLEY. I think that is correct also. 

Mr. SCOTT. How does double jeopardy work on this? If you lose 

the original charge, can you come back for the crime against the 

fetus? 

Mr. BRADLEY. Basically, you would have to charge both offenses 

at the same time. 

Mr. SCOTT. Is that in the bill? 

Mr. BRADLEY. That is not in the bill, but I think that would be 

the normal operation of double jeopardy principles. If it is a single 

act, whether selling drugs or a police officer brutalizing a pregnant 

women, you have to bring one indictment, all of the charges that 

arise from that act—— Mr. SCOTT. If you have an explosion, do you have to bring everybody in the same indictment? 

Mr. BRADLEY. At least generally, yes. If you have one criminal 

act, planting one bomb or causing one explosion, you have to bring 

everybody into that indictment who is killed as a result of that act, 

yes. 

Mr. SCOTT. So if you leave somebody out you can’t come back 

later? 

Mr. BRADLEY. Typically not. 

Mr. SCOTT. And you can’t have a Federal charge and a State 

charge like they are doing in Oklahoma? 

Mr. BRADLEY. Well, you could do that because double jeopardy 

doesn’t bind the different sovereignties, as they say. The Federal 

Government and the States can operate independently of each 

other and, I guess, often do. And one going first doesn’t have any 
36

effect upon the liberty of the other jurisdiction to go second. Whether the State goes first or second doesn’t matter either. 

Mr. CHABOT. The gentleman’s time has expired. The gentleman 

from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. I would like to direct a 

question or two to Mr. Bradley and maybe he can correct me where 

I am wrong. And first I want to welcome him back as well as the 

other panelists. You will have to understand it has been 20 years 

since I have been out of law school. I spent 3 years answering law 

professors’ questions and turnabout eventually is fair play, but I 

have a lot of catching up to do. And I guess the first thing I want 

to do is thank you for your jurisdictional argument where the predicate for Federal jurisdiction is laid upon other Federal offenses. I 

think the gentleman, Mr. Scott, who is a good friend and able lawyer, may have some ideas about which offenses ought to be excluded and some additional ones that may want to be included. But 

more to the point about the fact, we are the Constitutional Subcommittee. I think some of the questions here raised are the perceived offenses against the alter of the Roe decision. I want to know 

whether you read the recent Lawrence decision by the United 

States Supreme Court. 

Mr. BRADLEY. Yes. 

Mr. FEENEY. Maybe you can correct me on where my analysis is 

wrong about where we may be heading based on their approach toward stare decisis. With respect to the underlying law in Texas, I 

thought it was a silly law, as Justice Thomas said. I would have 

voted to either eradicate the offense altogether or diminish the penalties. But nonetheless the question is who makes law. And under 

the Bradley decision—let us start so we understand where I am 

going here. In Griswold, the Supreme Court under some penumbra 

discovered a right that was later applied in the Roe case to say 

that the woman had the right to terminate pregnancy under certain conditions, viability, et cetera. In the Bowers case in 1986, the 

United States Supreme Court reviewing history, reviewing common 

law, basically said there was nothing in the Constitution that guaranteed the right to engage in certain private behavior known as 

sodomy and, therefore, States could do what they liked. In the 

Lawrence case, as I recently understand it and, I think, this is very 

important of where we may be going here and some of the concerns 

of the minority opponents on stare decisis. But the question there 

was the same as in Bowers, does a State have the right to prescribe 

certain private behavior? What the Court said is forget about Bowers. That was 17 years ago. What it basically said and it flatly stated that the Bowers decision was wrongly decided, so they threw out 

their own precedent. In fact, they cited as a reason to throw out 

the Bowers case the fact that some 25 States had under the democratic process actually changed the law to stay up with cultural 

norms and customs and basically either permitted the type of behavior, sodomy, or at least released or lowered the activity. So the 

fact that democracy was functioning full well did not stop the Court 

from creating a constitutional right to a behavior that was not a 

constitutional right 17 years ago. 

Moreover, a very interesting twist, they actually cited, remember 

their own precedent in Bowers, as I understand it and I want you 
37

to correct me, their own precedent in Bowers is not enough to stand 

on, but they cited a precedent in the European Court of Human 

Rights as a good reason to throw out at least 17 years worth of jurisprudence on whether States have the authority and the power 

to outlaw this behavior. Well, Congresswoman Hart has suggested 

that there is a growing democratic movement in States and Congress to recognize that there may be more victims of specific crimes 

than just the ones that are laid out in our statutes. And what this 

bill does is to suggest effectively that Laci and Conner are more 

than one person. Now, even if the Roe decision doesn’t recognize— neither does it, as you say—it doesn’t say that there are two persons, but it doesn’t say there may not be two persons. And I guess 

it is possible under the jurisprudential legerdemain that the Lawrence court engaged it to suggest that culture, watching the Laci 

Peterson case, watching some of the horrific tragedies that one of 

our good witnesses described today, maybe our culture will catch 

up and suggest that Laci and Conner were two people and not one. 

Maybe you can tell me where my legal understanding is wrong 

about all this. 

Mr. BRADLEY. I think you get an A or at least an A minus in this 

exam, but it seems to me that you know clearly in Lawrence v. 

Texas, the Supreme Court majority at least was gauging or gearing 

its own reasoning to an emerging cultural consensus and, as you 

correctly point out, involving not only American legal culture but 

European legal culture. So be that as it may, it would seem there 

is reason to think that there is now an emerging cultural consensus, partly based upon the notoriety of Laci and Conner, I guess 

partly based upon the evidence at these hearings, that there really 

are two victims in the kind of violent acts we are talking about. 

There is an emerging cultural consensus of the general type that 

the Court in Lawrence took quite a lot of notice of. 

Mr. CHABOT. The gentleman’s time has expired. The gentleman 

from California, Mr. Schiff, is recognized for 5 minutes. 

Mr. SCHIFF. I thank the Chairman for yielding. And I want to 

start at the outset with a comment, which is really more about the 

practices in the House than about this Subcommittee, and our 

Chairman does an extraordinarily fine job. I wish we got to the 

point in the House regardless of who was in the majority and minority that we had an equal number of witnesses on both sides of 

the issue. To the degree that any of these issues help inform the 

Members’ minds, I think it would be useful for us to have the issue 

equally portrayed. And Professor, I am going to put you in a little 

different position but one you should be used to from your academic environment, and that is I would like you to speak for the 

opposition from a legal point of view and that is if you were a constitutional scholar appearing on the other side of the issue on the 

Committee today, what is the most powerful argument you can 

make against this bill? 

Mr. BRADLEY. The one that Mr. Nadler made. 

Mr. SCHIFF. Tell me how you would fashion it. 

Mr. BRADLEY. I would fashion it pretty much the way he did; 

that is to say, if you look at Roe and take away from it a moderate 

understanding, you would have a sense that the spirit of Roe or 

perhaps the meaning of Roe is that the unborn are not persons and 
38

Congress or States are powerless to make them persons. That is 

one reading of Roe. It is not the reading that I myself think is the 

better one, and I have disagreed with Mr. Nadler’s representations 

of Roe, but I think it is a plausible view of Roe although I would 

stress that the Court very studiously asserts over and over we are 

not saying finally who or what is a person. We are just saying that 

women get to do what they want when they are pregnant. But I 

think a decisive counterargument to Mr. Nadler’s argument is the 

Webster case. 

Mr. SCHIFF. Before we get to that, because you are a better advocate for both sides than that, what is—what would you point to as 

further support of that reading of Roe? 

Mr. BRADLEY. Well, clearly the result in Roe is anomalous if you 

take the view of the unborn persons. You don’t put in the charge 

of other persons, in this case walking around women, the fate or 

the life or death of any other person. 

Mr. SCHIFF. Are there any other subsequent Supreme Court 

precedents that indicate that you would take that view of Roe even 

in the context where you are not talking about a woman deciding 

to terminate her pregnancy but rather a third person committing 

a crime? 

Mr. BRADLEY. I don’t think so. I think that Roe has to do with 

the pregnant woman context. I don’t know an argument based—— Mr. SCHIFF. If we had Larry Tribe here on the other side what 

would he say? 

Mr. BRADLEY. Larry Tribe would say that he probably disagrees 

with his honorable colleague from Notre Dame but that the better 

reading of Roe is more or less as Mr. Nadler describes it and that 

Webster should be disregarded as incorrect, poorly reasoned or in 

any event to be disregarded. 

Mr. SCHIFF. Let me ask you then a less constitutional question, 

a more practical question, and that is what is the disadvantage, if 

there is a legitimate constitutional question here, what is the disadvantage from a practical criminal law standpoint of beefing up 

the penalty to the same point effectively where the sentences would 

be the same? Doesn’t that avoid the constitutional question? Isn’t 

it generally desirable from both a congressional and a Supreme 

Court position to avoid the unnecessary constitutional questions 

when you have a remedy that will accomplish the same objective? 

Mr. BRADLEY. I think it is probably generally desirable though 

in certain cases I would hope that Congress would (in a certain 

sense) provoke a confrontation with the Court if it thought the 

Court were on the wrong track regarding the Constitution, and 

Congress would be trying to help the Court correct its wrong 

course. But generally, sure, conflict avoidance is the preferred 

route. But in this case I myself don’t think there is a constitutional 

question. There are 28 or so of these laws in the States. Many have 

been tested up to the State’s highest courts. I don’t think there 

have been any holding these laws as unconstitutional. So I don’t 

think in this case even a risk averse Member of Congress would 

be running much risk of a confrontation with the courts. 

Mr. SCHIFF. Ms. Fulcher, if I could ask you to play the same devil’s advocate role. It seems to me the most compelling argument in 

favor of this idea would be not in the case where the mother is 
39

murdered as well, but rather where the mother is only injured and 

the fetus is terminated. How do you accomplish the same level of 

penalties in that kind of a circumstance, same deterrent factor? In 

my view, if someone is going to kill a pregnant woman, realizing 

they are murdering the woman, the fact that they are murdering 

a second fetus at the same time is not much of an additional disincentive. If they are going to commit murder, they are going to 

commit murder. But it seems to me different if you are talking 

about an assault that has the effect of terminating the life of the 

fetus as well. 

Mr. CHABOT. The gentleman’s time has expired, but the gentleman can answer the question, or gentlelady. 

Ms. FULCHER. I would say that if your goal is to either prevent 

through deterrence or to provide accountability, that doing so is 

about penalties and what ultimately happens to the perpetrator. 

This is one of a number of different proposals that have been put 

forth that would do that. 

Mr. SCHIFF. Mr. Chairman, may I ask a brief question on that? 

Mr. CHABOT. Yes. 

Mr. SCHIFF. How do you achieve the same deterrent impact if an 

assault, for example, might carry 1 to 5 years, whereas a murder 

charge could carry up to life? Wouldn’t it be ironic if you change 

the penalty—how would you change the penalty, I guess is the 

question, so that you have a much greater deterrent impact in the 

case of a pregnant woman where you have a miscarriage? 

Ms. FULCHER. Well, I think there is good precedent and law for 

enhanced penalties depending on who the victim is and what the 

circumstances of the crime are, and there could be a means of enhancing the penalties if that would occur in this situation. 

Mr. SCHIFF. So you could have a statute that says that an assault maybe carries 1 to 5 years but an assault that has the effect 

of terminating a pregnancy would carry up to life? 

Ms. FULCHER. Sure. 

Mr. CHABOT. The gentleman from New York by unanimous consent is given the opportunity to ask one additional question. 

Mr. NADLER. Thank you, Mr. Chairman. The question is for Professor Bradley. I want to put you in the hot seat now, and I appreciate your remarks about my constitutional views but going back 

to what we were discussing about the question of personhood and 

the question of the Supreme Court saying that—well, Supreme 

Court certainly did not say that a fetus is a person within the 

meaning of the 14th amendment. 

Mr. BRADLEY. That is correct. 

Mr. NADLER. My fear and the real reason for a lot of the opposition to this bill is that some of us can see precisely a development 

a few years down the road in which a future Supreme Court says 

the following: The passage by Congress of the Unborn Victims of 

Violence Act and the signature by the President and the similar 

passage of similar acts in X number of State legislatures and 

signed by X number of Governors shows the developing societal 

consensus that a fetus is a person within the meaning of the 14th 

amendment, and we so hold, and therefore, abortion is murder. It 

is not status quo ante before the Roe v. Wade. States can’t decide 

to allow abortions, and to allow an abortion you need a constitu-
40

tional amendment. Now you are saying, as I understand it, that 

that is not a likely outcome or a danger of this bill. 

I would ask you the following: Do you think that this bill in fact 

could in any way lead to such a thing or promote such a thing? And 

secondly, would you object, would you see any reason to object? 

Would you see the bill weaker in any way in terms of its professed 

objective if an amendment were to be included saying that this bill 

has no bearing or has no comment or doesn’t have any relationship 

to the question of whether a fetus is a person under the meaning 

of the 14th amendment? 

Mr. BRADLEY. I think that is what it does say, and section (c) 

does say this has nothing to do with abortion whatsoever. 

Mr. NADLER. So if it were made more specific and said that this 

implies no personhood for purposes of the 14th amendment, you 

would think it would not weaken the bill and you would have no 

objection? 

Mr. BRADLEY. I think that is what it does say. 

Mr. NADLER. Thank you. 

Mr. CHABOT. Gentleman’s time has expired. In fairness, since I 

recognized the gentleman for one last question, let me ask one last 

question as well by unanimous consent, and I will just direct mine 

to Mrs. Marciniak. Again looking over at that photograph over 

there, you are trying to convince this Committee, and I think you 

are probably the one in this room that has felt this tragedy most 

directly and most profoundly. I will give you one last shot. Why do 

you think it is important that we recognize that there are two separate victims in that photograph, and what difference has it made 

in the lives that we see in that picture? 

Mrs. MARCINIAK. Look at the picture and tell me how many people you see there? There is two, my son Zachariah who gave his 

life, and there is me, and I almost gave mine. The reason I survived I feel is to right the injustices that are going on. Wisconsin 

didn’t have a law. If you think the pain of losing a child at the time 

is the worst you could ever feel, by having the law that you believe 

tell you that he wasn’t a victim was worse. The pain that I feel 

today and I will for the rest of my life is tripled because of that, 

because the law told me my son didn’t exist. 

I took care of my son while he was inside of me. We waited for 

him. We decorated his nursery. We named him before he was born. 

We have the right for justice, and that is what we are begging for 

you to do. Stop letting these unborn victims die in vain. 

Mr. CHABOT. Thank you very much. 

Mr. NADLER. Mr. Chairman. 

Mr. CHABOT. Mr. Nadler. 

Mr. NADLER. Could you give us some idea as to the scheduling 

of this bill? The hearing I assume is basically over. 

Mr. CHABOT. The hearing is going to be concluded. 

Mr. NADLER. Do you anticipate a Subcommittee and a full Committee markup? Do you anticipate that we will have floor action before the August recess? 

Mr. CHABOT. We will have to consult with the Chairman of the 

overall Committee, and we will certainly let the minority side know 

what our thinking is. At this time, we don’t have a date set. 
41

Mr. NADLER. I ask for unanimous consent, Mr. Chairman, that 

all Members have 5 legislative days to revise and extend their remarks and submit additional materials for the record. 

Mr. CHABOT. Without objection. If there is no further business to 

come before the Committee, we are adjourned. 

[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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DOCUMENTS SUBMITTED BY CHRAIRMAN STEVE CHABOT
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STATE UNBORN VICTIMS LAWSSTATE HOMICIDE LAWS THAT RECOGNIZE UNBORN

VICTIMSNATIONAL RIGHT TO LIFE COMMITTEEJUNE 23, 2003

[latest version always posted at http://www.nrlc.org/Unborn—victims/

Statehomicidelaws092302.html] 

FULL-COVERAGE UNBORN VICTIM STATES (15) 

(States With Homicide Laws That Recognize Unborn Children as Victims 

Throughout the Period of Pre-natal Development) 

Arizona: The killing of an ‘‘unborn child’’ at any stage of pre-natal development 

is manslaughter. Ariz. Rev. Stat. § 13–1103 (A)(5) (West 1989 & Supp. 1998). Also 

to be read with Ariz. Rev. Stat. § 13–702(c)(10). 

Idaho: Murder is defined as the killing of a ‘‘human embryo or fetus’’ under certain conditions. The law provides that manslaughter includes the unlawful killing 

of a human embryo or fetus without malice. The law provides that a person commits 

aggravated battery when, in committing battery upon the person of a pregnant female, that person causes great bodily harm, permanent disability or permanent disfigurement to an embryo or fetus. Idaho Sess. Law Chap. 330 (SB1344)(2002). 

Illinois: The killing of an ‘‘unborn child’’ at any stage of pre-natal development is 

intentional homicide, voluntary manslaughter, or involuntary manslaughter or reckless homicide. Ill. Comp. Stat. ch. 720, § § 5/9–1.2, 5/9–2.1, 5/9–3.2 (1993). Ill. Rev. 

Stat. ch. 720 § 5/12–3.1. A person commits battery of an unborn child if he intentionally or knowingly without legal justification and by any means causes bodily 

harm to an unborn child. Read with Ill. Rev. Stat. ch. 720 § 5/12–4.4. 

Louisiana: The killing of an ‘‘unborn child’’ is first degree feticide, second degree 

feticide, or third degree feticide. La. Rev. Stat. Ann. § § 14:32.5 – 14.32.8, read with 

§ § 14:2(1), (7), (11) (West 1997). 

Michigan: The killing of an ‘‘unborn quick child’’ is manslaughter under Mich. 

Stat. Ann. § 28.555. The Supreme Court of Michigan interpreted this statute to 

apply to only those unborn children who are viable. Larkin v. Cahalan, 208 N.W.2d 

176 (Mich. 1973). However, a separate Michigan law, effective Jan. 1, 1999, provides 

felony penalties for actions that intentionally, or in wanton or willful disregard for 

consequences, cause a ‘‘miscarriage or stillbirth,’’ or cause ‘‘aggravated physical injury to an embryo or fetus.’’(M.C.L. 756.90) 

Minnesota: The killing of an ‘‘unborn child’’ at any stage of pre-natal development 

is murder (first, second, or third degree) or manslaughter, (first or second degree). 

It is also a felony to cause the death of an ‘‘unborn child’’ during the commission 

of a felony. Minn. Stat. Ann. § § 609.266, 609.2661– 609.2665, 609.268(1) (West 

1987). The death of an ‘‘unborn child’’ through operation of a motor vehicle is criminal vehicular operation. Minn. Stat. Ann. § 609.21 (West 1999). 

Missouri: The killing of an ‘‘unborn child’’ at any stage of pre-natal development 

is involuntary manslaughter or first degree murder. Mo. Ann. Stat. § § 1.205, 

565.024, 565.020 (Vernon Supp. 1999), State v. Knapp, 843 S.W.2d 345 (Mo. 1992), 

State v. Holcomb, 956 S.W.2d 286 (Mo. App. W.D. 1997). 

Nebraska: The killing of an ‘‘unborn child’’ at any stage of pre-natal development 

is murder in the first degree, second degree, or manslaughter. Neb. Rev. Stat. § 28– 391 to § 28–394. (2002) 

North Dakota: The killing of an ‘‘unborn child’’ at any stage of pre-natal development is murder, felony murder, manslaughter, or negligent homicide. N.D. Cent. 

Code § § 12.1–17.1–01 to 12.1–17.1–04 (1997). 

Ohio: At any stage of pre-natal development, if an ‘‘unborn member of the species 

homo sapiens, who is or was carried in the womb of another’’ is killed, it is aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, negligent homicide, aggravated vehicular homicide, and vehicular homicide. Ohio Rev. 

Code Ann. § § 2903.01 to 2903.07, 2903.09 (Anderson 1996 & Supp. 1998). 

Pennsylvania: An individual commits criminal homicide in the first, second, or 

third-degree, or voluntary manslaughter of an ‘‘unborn child’’ if the individual intentionally, knowingly, recklessly or negligently causes the death of an unborn child. 

18 Pa. Cons. Stat. Ann. § § 2601 to 2609 (1998) ‘‘Unborn child’’ and ‘‘fetus.’’ Each 

term shall mean an individual organism of the species Homo sapiens from fertilization until live birth.’’ South Dakota: The killing of an ‘‘unborn child’’ at any stage of pre-natal development is fetal homicide, manslaughter, or vehicular homicide. S.D. Codified Laws 

Ann. § 22–16–1, 22–16–1.1, 22–16–15(5), 22–16–20, and 22–16–41, read with § § 22–

1–2(31), 22–1–2(50A) (Supp. 1997). 

Texas: Under a law signed June 20, 2003, and effective September 1, 2003, the 

protections of the entire criminal code extend to ‘‘an unborn child at every stage of 

gestation from fertilization until birth.’’ The law does not apply to ‘‘conduct com-
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mitted by the mother of the unborn child’’ or to ‘‘a lawful medical procedure performed by a physican or other licensed health care provider with the requisite consent.’’ (SB 319, Prenatal Protection Act) 

Utah: The killing of an ‘‘unborn child’’ at any stage of pre-natal development is 

treated as any other homicide. Utah Code Ann. § 76–5–201 et seq. (Supp. 1998)and 

UT SB 178 (2002). 

Wisconsin: The killing of an ‘‘unborn child’’ at any stage of pre-natal development 

is first-degree intentional homicide, first-degree reckless homicide, second-degree intentional homicide, second-degree reckless homicide, homicide by negligent handling 

of dangerous weapon, explosives or fire, homicide by intoxicated use of vehicle or 

firearm, or homicide by negligent operation of vehicle. Wis. Stat. Ann. § § 939.75, 

939.24, 939.25, 940.01, 940.02, 940.05, 940.06, 940.08, 940.09, 940.10 (West 1998). 

PARTIAL-COVERAGE UNBORN VICTIM STATES (13) 

(States with Homicide Laws That Recognize Unborn Children as Victims,But only 

During Part of the Period of Pre-natal Development) NOTE: These laws are gravely 

deficient because they do not recognize unborn children as victims during certain 

periods of their pre-natal development. Nevertheless, they are described here for informational purposes. 

Arkansas: The killing of an ‘‘unborn child’’ of twelve weeks or greater gestation 

is capital murder, murder in the first degree, murder in the second degree, manslaughter, or negligent homicide. Ark. Stat. Ann. § 5–1–102(13)(b)(i)(a), read with 

Ark. Stat. Ann. § § 5–10–101 to 5–10–105. (A separate Arkansas law makes it a battery to cause injury to a woman during a Class A misdemeanor to cause her to undergo a miscarriage or stillbirth, or to cause injury under conditions manifesting extreme indifference to human life and that results in a miscarriage or stillbirth. Ark. 

Stat. Ann. § 5–13–201 (a)(5)(a)). 

California: The killing of an unborn child after the embryonic stage is murder. 

Cal. Pen. Code § 187(a) (West 1999) 

Florida: The killing of an ‘‘unborn quick child’’ is manslaughter, a felony of the 

second degree. Fla. Stat. Ann. § 782.09 (West 1999). The killing of an unborn child 

after viability is vehicular homicide. Fla. Stat. Ann. § 782.071 (West 1999). 

Georgia: The killing of an ‘‘unborn child’’ after quickening is feticide, vehicular feticide, or feticide by vessel. Ga. Code Ann. § 16–5–80 (1996); § 40–6–393.1 (1997); 

and § 52–7–12.3 (1997). 

Indiana: The killing of ‘‘a fetus that has attained viability’’ is murder, voluntary 

manslaughter, or involuntary manslaughter. Indiana Code 35–42–1–1, 35–42–1–3, 

35–42–1–4. 

Massachusetts: The killing of an unborn child after viability is vehicular homicide. 

Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984). The killing of an unborn 

child after viability is involuntary manslaughter. Commonwealth v. Lawrence, 536 

N.E.2d 571 (Mass. 1989). 

Mississippi: The killing of an ‘‘unborn quick child’’ is manslaughter. Miss. Code 

Ann. § 97–3–37 (1994). 

Nevada: The killing of an ‘‘unborn quick child’’ is manslaughter. Nev. Rev. Stat. 

§ 200.210 (1997). 

Oklahoma: The killing of an ‘‘unborn quick child’’ is manslaughter. Okla. Stat. 

Ann. tit. 21, § 713 (West 1983). The killing of an unborn child after viability is 

homicide. Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994). 

Rhode Island: The killing of an ‘‘unborn quick child’’ is manslaughter. The statute 

defines ‘‘quick child’’ to mean a viable child. R.I. Gen. Laws § 11–23–5 (1994). 

South Carolina: The killing of an unborn child after viability is homicide. State 

v. Horne, 319 S.E.2d 703 (S.C. 1984); State v. Ard, 505 S.E.2d 328 (S.C. 1998). 

Tennessee: The killing of an unborn child after viability is first-degree murder, 

second-degree murder, voluntary manslaughter, vehicular homicide, and reckless 

homicide. Tenn. Code Ann. § 39–13–201, 39–13–202, 39–13–210, 39–13–211, 39–13– 213, 39–13–214, 39–13–215 (1997 & Supp. 1998). 

Washington: The killing of an ‘‘unborn quick child’’ is manslaughter. Wash. Rev. 

Code Ann. § 9A.32.060(1)(b) (West Supp. 1999). 

CONFLICTING STATUTES 

New York: Under New York statutory law, the killing of an ‘‘unborn child’’ after 

twenty-four weeks of pregnancy is homicide. N.Y. Pen. Law § 125.00 (McKinney 

1998). But under a separate statutory provision, a ‘‘person’’ that is the victim of a 

homicide is statutorily defined as a ‘‘human being who has been born and is alive.’’

N.Y. Pen. Law § 125.05 (McKinney 1998). See People v. Joseph, 130 Misc. 2d 377, 

496 N.Y.S.2d 328 (County Court 1985); In re Gloria C., 124 Misc.2d 313, 476 
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N.Y.S.2d 991 (N.Y. Fam. Ct. 1984); People v. Vercelletto, 514 N.Y.S.2d 177 (Co. Ct. 

1987).
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RESPOSNSE SUBMITTED BY REPRESENTATIVE STEVE KING

I would like to respond to the opening statement made by the Ranking Member 

from New York, Mr. Nadler and refute some of his unfounded accusations. 

Several of my colleagues, including Ranking Member Nadler in his opening statement, take exception with the fact that this bill would consider a fetus, embryo, or 

zygote as a person and a victim of a crime. This bill uses the term ’child in utero’

and defines it as ‘‘a member of the species homo sapiens, at any stage of development, who is carried in the womb.’’ (H.R. 1997, page 4, lines 21–25) They claim that 

this definition gives an unborn child status as a person and is therefore at odds with 

the Supreme Court decision in Roe v. Wade, that this bill is just an attempt to undermine a woman’s ’right to choose’, and that the use of this definition will lead to 

further legislation infringing on women’s constitutional protections. However, it appears that none of these dire consequences were of concern to Mr. Nadler, Mr. Conyers, Mr. Scott, or Mr. Watt when they voted for The Innocent Child Protection Act 

of 2000 on July 25, 2000. (Congressional Record - House, July 25, 2000, page H6841) 

That bill contained the term ’child in utero’ and defined that term using the exact 

same language with which it is defined in the resolution before us now. What has 

changed? 

Opponents who say The Unborn Victims of Violence Act violates the principles set 

forth in Roe are simply wrong. We are not mired in the ‘‘back alleys of the abortion 

debate’’ as Mr. Nadler contends. We are not ‘‘playing abortion politics.’’ We are protecting the unborn children that women have chosen to bring into this world. The 

Act itself specifically exempts any conduct relating to an abortion, both by medical 

professionals and the mother herself. 

In his opening statement, Mr. Nadler says that in its decision in Roe ‘‘[t]he Court 

clearly said: the unborn have never been recognized in the whole sense, and concluded that ’person’, as used in the Fourteenth Amendment of the Constitution, does 

not include the unborn.’’ (internal quotations omitted) What he fails to add is that 

The Court also explicitly stated that it was not resolving ‘‘the difficult question of 

when life begins.’’ (410 U.S. at 159) The court may have said that unborn children 

are not persons in the whole sense, but there is nothing in Roe that prohibits Congress from recognizing the lives of unborn children outside of the context of a woman’s right to an abortion as specifically defined in that case. In fact, fifteen states 

already have laws that would protect unborn children throughout the entire period 

of prenatal development and another thirteen recognize unborn children as victims 

during part of their prenatal development. Unborn children are routinely recognized 

as persons for the purposes of inheritance and tort injury, and there is no reason 

why they cannot be recognized as persons in this context as well. 

Mr. Nadler and company claim that this is just the first step in a path that would 

eventually lead to banning abortion. That could not be further from the truth. This 

act would exempt a pregnant woman from any harm to her own unborn child as 

a result of her own actions. This in no way infringes on a woman’s freedom. While 

I would not object to making abortion illegal once again, and I would support limitations on the behavior of a woman when that behavior infringes on her child’s 

unalienable right to life, these areas are simply not at issue in this bill. 

The Roe decision was based on a woman’s right to privacy, preventing the state 

from interfering with her right to make personal reproductive decisions. Thugs and 

batterers have no such right. Mr. Nadler and my other colleagues opposing this bill 

tout a woman’s ’right to choose’ an abortion, but women also have the right to 

choose to have a child. While they claim to support this proposition, they would 

deny that a child a woman has chosen to carry is a person. Once a woman has chosen to have a child, no one can take this right away from her, and the federal law 

should reflect this, punishing those who take the life of an unborn, but nonetheless 

loved and valued, member of a family. 

I am unsure how the Innocent Child Protection Act that many of my colleagues—

including the gentleman from New York—supported, can be devoid of the same evil 

intentions and catastrophic outcomes as have been attributed to the Unborn Victims 

of Violence Act. Perhaps it is because the former bill aligned with the ideological 

priorities of those who sit across the aisle more conveniently than the latter. Whatever the reason for this discrepancy, such doomsday predictions are as unfounded 

in this case as they would have been in July, 2000. We will not execute a pregnant 

woman, regardless of the heinousness of her crime, because we know that her 

‘‘fetus’’ is a unique human being with the full rights of personhood. The current bill 

is about protecting innocent ’children in utero’ as well—children who have no less 

need for protection from harm than do the unborn children of women convicted of 

crimes and sentenced to death. 
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Mr. Nadler further contends that this bill ignores the ‘‘truly grotesque crime 

against the woman’’ carrying the child. Once again, this is not true. We already 

have numerous laws punishing assault, battery, and murder. This bill would augment these crimes, which already exist to protect women, by also making the same 

behavior criminal with respect to the unborn child. 

Mr. Nadler appears to be more concerned with protecting the criminals who would 

commit these crimes than the unborn children injured and killed by them. He correctly points out that an attacker would not even need to know that a woman was 

pregnant to be punished under this law. However, the settled legal principle of 

transferred intent makes it unnecessary that an attacker know of the child’s existence to be punished. If a person commits a crime with the intent to injure Victim 

A, but instead injures Victim B, that person’s intent to injure A is transferred to 

B, and the person is held responsible for B’s injuries. Any person who attacks a 

pregnant woman with an intent to injure her is therefore responsible for the injuries 

to her unborn child. Would Mr. Nadler really require a woman to tell her attacker 

she is pregnant if she wants to protect her child? This would be a preposterous imposition and would violate a woman’s freedom and privacy more than anything in 

the bill we are considering today. 

Mr. Nadler has challenged the commitment of those who support this bill to protecting women. He asks why we are ‘‘short-changing funding for the Violence 

Against Women Act.’’ He knows as well as any other member of this committee that 

the appropriations process is about the distribution of limited funds. Tough choices 

must be made. The fact that a majority of the House has not seen fit to appropriate 

the full amount requested for this program does not mean we are ignoring the issue 

of violence against women or choosing to fight symbolic battles rather than helping 

women. In fact, this bill would be an additional deterrent to anyone considering 

committing violence against a woman, and has the added benefit of not requiring 

additional appropriations. This bill contributes to the prevention of and punishment 

for violence against women. 

Mr. Nadler has also asserted that ‘‘homicide is the leading killer of young women, 

pregnant or not....’’ This is false. While homicide is a leading killer of young 

women, accidents are the leading cause of death for young women ages twenty to 

thirty-four. Homicide is the second most frequent cause of death for women ages 

twenty to twenty-four and the fifth-leading cause of death for women ages twentyfive to thirty-four. The homicide rate for pregnant women is greater than the homicide rate for all women. (source: NOW website) While I do not dispute the fact that 

this is a serious problem, this issue is too important to let rhetorical flourish take 

precedence over truth. 

Mr. Nadler and others have accused those of us who support this bill of ‘‘playing 

abortion politics’’ and fighting a ‘‘battle in a war of symbols.’’ We are not playing 

politics. This is not symbolic. This is about the real goal of protecting unborn children from violence committed against them and their mothers. This is about punishing those who would injure or take the life of a child whom a woman has chosen 

to bring into this world.

Æ