The Unborn Victims of Violence Act and itsImpact on Reproductive Rights

The Unborn Victims of Violence Act' (UVVA) is a recent attempt by pro-life forces to take a slice out of the constitutional protections surrounding the right to choose.2 The UVVA is largely supported by prolife Republicans, although the vote in the House of Representatives was not split entirely along party lines.3 Opponents argue that the statute is a * Juris Doctor, Washington and Lee University School of Law, May 2008; Bachelor of Arts in Political Science, State University of New York at Buffalo, 2005. I would like to thank Professor Ann Massie for all of her help and guidance in the writing process. I would also like to thank my friend and former roommate Stephanie Wilson for sharing her enthusiasm for women's rights with me. 1 18 U.S.C. § 1841 (2005). 2. See id. (creating an offense for perpetrators of crimes against a pregnant woman causing death or bodily injury to a child in utero for the death or injury to the child separately and additionally to the penalty for the crime against the woman). 3. See Final Vote Results for Roll Call 31, Unborn Victims of Violence Act (Feb. 26, 2004), http://clerk.house.gov/evs/2004/roll031.xml (last visited Dec. 18, 2008) (listing the final vote in the house as 254 to 163 in favor of passage of the UVVA) (on file with the Washington and Lee Journal of Civil Rights and Social Justice). Of voting Republicans, 207 voted in support of the bill, and 13 voted against it. Of voting Democrats, 47 voted in favor 15 WASH. & LEE J.C.R. & SOC. JUST. 285 (2008) stealthy attack upon Roe v. Wade,4 as the statute establishes a legal status for a fertilized egg, embryo, and fetus in the context of criminal punishment.5 Proponents, however, countered that the statute appropriately provides punishment to criminals who assault a pregnant woman, validates the families of prenatal assault victims, and prevents 6 violence against women. In the course of the debate over the UVVA, Representative Lofgren suggested a substitute bill that contained less aggressively pro-life language. 7 The Lofgren substitute, a counterproposal offered by the Democrats, which was ultimately rejected, provided that injury to or termination of a pregnancy resulted in a second crime.8 That portion was the same as the UVVA; however, that second crime was an additional crime against the pregnant woman, rather than a crime against a second victimi.e., the unborn entity-as in the UVVA. 9 of the bill compared to 149 who voted against the bill. Id. 4. See Roe v. Wade, 410 U.S. 113, 164-66 (1973) (holding that statutes criminalizing abortion are violative of the Due Process Clause of the Fourteenth Amendment if they create only an exception for the abortion procedures to save the life of the mother without regard to the pregnancy stage and without regard to other interests involved). In Roe, the Supreme Court considered a facial challenge to the validity of Texas criminal abortion laws that proscribe abortion except when required to save the mother's life. Id. at 117-18. The Roe Court found that the Fourteenth Amendment protects a woman's right to abortion. Id. at 153-54. In so finding, the Court concluded that women enjoyed a broad right to terminate a pregnancy at the time of the adoption of the Constitution and throughout most of the 19th century. Id. at 140. The Court also noted that states have a legitimate interest in protecting fetal life. Id. at 150. To determine the point at which the state's interest becomes sufficiently compelling to overcome the mother's privacy interest, the Roe Court developed a trimester framework. Id. at 162-64. Under this scheme the state had no compelling interest in the first trimester of pregnancy, but after fetal viability the state's interests were so compelling as to allow it to proscribe abortion. Id. 5. See 150 CONG. REc. H637-05, 640 (daily ed. Feb. 26, 2004) (statement of Rep. Nadler) (citing several pro-life activists asserting their intention to pervade new legislation with language of personhood in reference to pre-natal life for the purposes of establishing a basis for one day overturning court decisions supporting abortion rights). 6. See id. at 639 (statement of Rep. Sensenbrenner) (stating that the purpose of the UVVA is to provide validation for unborn victims of violence by allowing perpetrators of such violence to be charged separately for the crime against the mother and that against the unborn victim). 7. See id. (statement of Rep. Lowey) (stating that the Lofgren substitute is an effective alternative to the proposed legislation, which achieves the same purpose without employing suspect means). 8. See Motherhood Protection Act of 2003, H.R. 2247, 108th Cong. (2003) (containing the "Lofgren Substitute," a bill identical to the UVVA in effect, but without use of the term "child"). 9. See id. (providing that injury to or termination of pregnancy resulted in a second UNBORN VICTIMS OF VIOLENCE ACT