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Public Statements

Unborn Victims of Violence Act of 2004 - Part I

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Location: Washington, DC


Part I

UNBORN VICTIMS OF VIOLENCE ACT OF 2004

The PRESIDING OFFICER. Under the previous order, the hour of 10:30 having arrived, the Senate will proceed to the consideration of H.R. 1997, which the clerk will report.

The assistant legislative clerk read as follows:
A bill (H.R. 1997) to amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes.

The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Madam President, I come to the floor this morning to begin the debate on the Unborn Victims of Violence Act. I would like first to thank our 40 cosponsors for their leadership and support on this issue.

Let me also thank specifically Senator Lindsey Graham, who championed this issue on the House side for a number of years before he joined us here in the U.S. Senate. He has worked tirelessly to see to it that the most vulnerable members of our society are, in fact, protected.

Let me also thank our lead House sponsors, Congresswoman MELISSA HART from Pennsylvania, and my friend and colleague from the State of Ohio, Congressman STEVE CHABOT. They have both been great champions of this great cause. They worked tirelessly to help get this important bill passed in the House of Representatives.
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Our bill is very simple. I will take just a couple of minutes to explain it. It is a bill about simple justice. It is a bill about doing what is right. I was asked yesterday by one of my colleagues, Why do we need this bill? Why is this bill on the floor?

This is what I responded yesterday and this is what I would say to my colleagues here in the Senate this morning. Imagine a pregnant woman in a national park or a pregnant woman on an Air Force base and she is violently assaulted.

As a result of that assault, she loses her child; that child dies. Today, there is no Unborn Victims of Violence Act.

Today, unless that Federal park or Air Force base is located in a State that has a similar law, a Federal prosecutor would search the Federal statute books in vain to find anything to charge that assailant for the death of that child, for the death of that unborn infant, the fetus. The only thing that Federal prosecutor would be able to charge that defendant with is the assault of the woman. The death of that child would not be able to be charged as what we would think would be a separate offense. Justice would not be done for that, what we would think would be a separate offense.

This bill corrects that. This bill recognizes there are two victims. There is the victim, the mother, who was assaulted; and there is the victim, the unborn child, who was either injured or killed. It is that simple.

This bill recognizes when someone attacks and harms a mother and her unborn child that attack does in fact result in two separate victims: the mother and her child. That is what this bill does.

I will have more to say about this bill later. I will reserve the remainder of my time.
AMENDMENT NO. 2858
Mrs. FEINSTEIN. Madam President, I would like to call up amendment 2858.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from California [Mrs. FEINSTEIN] for herself and Mr. Lautenberg, Mr. Bingaman, Mrs. Boxer, Mr. Kennedy, and Mr. CORZINE, proposes an amendment numbered 2858.

Mrs. FEINSTEIN. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: Entitled the Motherhood Protection Act)
Strike all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Motherhood Protection Act".
SEC. 2. PROTECTION OF PREGNANT WOMEN.
(a) IN GENERAL.-Title 18, United States Code, is amended by inserting after chapter 90 the following:

"CHAPTER 90A-PROTECTION OF PREGNANT WOMEN
"CHAPTER 90A-PROTECTION OF PREGNANT WOMEN
"Sec.
"1841. Causing termination of pregnancy or interruption of the normal course of pregnancy.
"§ 1841. Causing termination of pregnancy or interruption of the normal course of pregnancy
"(a)(1) Any person who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the termination of a pregnancy or the interruption of the normal course of pregnancy, including termination of the pregnancy other than by live birth is guilty of a separate offense under this section.
"(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman.
"(B) An offense under this section does not require proof that-
"(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
"(ii) the defendant intended to cause the termination or interruption of the normal course of pregnancy.

"© If the person engaging in the conduct thereby intentionally causes or attempts to cause the termination of or the interruption of the pregnancy, that person shall be punished as provided under section 1111, 1112, or 1113, as applicable, for intentionally terminating or interrupting the pregnancy or attempting to do so, instead of the penalties that would otherwise apply under subparagraph (A).
"(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.
"(b) The provisions referred to in subsection (a) are the following:
"(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229, 242, 245, 247, 248, 351, 831, 844(d), 844(f), 844(h)(1), 844(i), 924(j), 930, 1111, 1112, 1113, 1114, 1116, 1118, 1119, 1120, 1121, 1153(a), 1201(a), 1203, 1365(a), 1501, 1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952(a)(1)(B), 1952(a)(2)(B), 1952(a)(3)(B), 1958, 1959, 1992, 2113, 2114, 2116, 2118, 2119, 2191, 2231, 2241(a), 2245, 2261, 2261A, 2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of this title.
"(2) Section 408(e) of the Controlled Substances Act of 1970 (21 U.S.C. 848(e)).
"(3) Section 202 of the Atomic Energy Act of 1954 (42 U.S.C. 2283).

"© Subsection (a) does not permit prosecution-
"(1) for conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency;
"(2) for conduct relating to any medical treatment of the pregnant woman, or matters related to the pregnancy; or
"(3) of any woman with respect to her pregnancy.".

(b) CLERICAL AMENDMENT.-The table of chapters for part 1 of title 18, United States Code, is amended by inserting after the item relating to chapter 90 the following:

"90A. Protection of pregnant women 1841".
SEC. 3. MILITARY JUSTICE SYSTEM.
(a) PROTECTION OF PREGNANT WOMEN.-Subchapter X of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by inserting after section 919 (article 119) the following:

"§ 919a. Art. 119a. Causing termination of pregnancy or interruption of normal course of pregnancy
"(a)(1) Any person subject to this chapter who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the termination of a pregnancy or the interruption of the normal course of pregnancy, including termination of the pregnancy other than by live birth, is guilty of a separate offense under this section.
"(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment for that conduct under this chapter had that injury or death occurred to the pregnant woman.
"(B) An offense under this section does not require proof that-
"(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
"(ii) the defendant intended to cause the termination or interruption of the normal course of pregnancy.

"© If the person engaging in the conduct thereby intentionally causes or attempts to cause the termination of or the interruption of the pregnancy, that persons shall be punished as provided under section 918, 919, or 880 of this title (article 118, 119, or 80), as applicable, for intentionally causing the termination of or interruption of the pregnancy or attempting to do so, instead of the penalties that would otherwise apply under subparagraph (A).
"(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.
"(b) The provisions referred to in subsection (a) are sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 111, 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
"© Subsection (a) does not permit prosecution-
"(1) for conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law in a medical emergency;
"(2) for conduct relating to any medical treatment of the pregnant woman or matters relating to her pregnancy; or
"(3) of any woman with respect to her pregnancy.".

(b) CLERICAL AMENDMENT.-The table of sections at the beginning of subchapter X of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by inserting after the item relating to section 919 the following:

"919a. Causing termination of pregnancy and termination of normal course of pregnancy.".

Mrs. FEINSTEIN. Madam President, I agree with virtually everything the Senator from Ohio has said. Although there are many State laws which do take into consideration a fetus, it is true that the Federal laws, which would impact only those on Federal property, are silent. I am in complete concurrence with everything the Senator has said. I have had the privilege of working with him, so it is a delight for me to be able to discuss and debate this issue with him.

The substitute amendment I have called up is on behalf of Senators BINGAMAN, BOXER, CORZINE, KENNEDY and LAUTENBERG. I would like to make clearer a couple of places in that amendment.
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I ask unanimous consent to send a modification to the desk.

Mr. DeWINE. I object.

The PRESIDING OFFICER. Objection is heard.

Mrs. FEINSTEIN. I hear the objection. I am rather surprised by the objection. It is generally common courtesy to allow a Senator to amend his or her amendment. However, I believe our amendment is clear on its face.

I would like to point out that since 2000, in the Senate, there has been no hearing on this amendment and no opportunity for the Judiciary Committee to make corrections. This amendment is on the floor as a rule XIV.

I am very disappointed the Senator will not allow me to make a modification. For the record, let me simply state that I was proposing a minor change designed to further clarify what I believe to be the clear intent and application of our amendment. The bottom line is this: Even without the technical changes, our amendment is clear. We include the same structure, the same crimes, and the exact same penalties as the DeWine bill.

The only real difference between our amendment and the DeWine bill is that we do not attempt to place into law language defining life as beginning at conception-beginning with an embryo.

Just to clarify for the purpose of giving judges more legislative history with which to interpret our amendment, let me be clear about the two provisions at issue.

The first modification concerns section ©(2) of our amendment which reads "For medical treatment of the woman or matters relating to the pregnancy." This language simply tracks the DeWine language and the House bill language. I believe it is quite clear what we meant by this was to exempt medical treatment of the woman or any other medical treatment related to the pregnancy.

The second criticism or modification was that section ©(2) which applies to intentional crimes against the pregnant woman is awkwardly worded and thus vague. The intent of the section is also clear. Our amendment and the House and the DeWine bill would punish an individual who intentionally ends a pregnancy in accordance with the murder, manslaughter, or intent statutes already on the books. The level of penalty would be determined by a judge and would be based on the level of intent. For instance, punishment under the murder statute would require malice. Punishment under the manslaughter statute would not. But either way the intent is clear.

I believe the only real reason to raise these issues is to try to defeat our amendment without addressing the underlying fact that our amendment contains the same law enforcement goals as the DeWine and the House bill, but without injecting a debate over a woman's right to choose into the equation.

This issue is not as simple as it seems at first glance. Everyone in the Senate wants to accomplish the same goal-punishing those who, by attacking or killing a pregnant woman, deprive families not only of the mother but also of the joy to help raise the child yet to be born. Punishing those who end a pregnancy and thus end the potential life experience, all of the hopes and dreams embodied by that pregnancy and the child to come, is an important advance in Federal criminal law.

But here is where it gets more complicated. The House bill before us, the DeWine bill, now takes the position in law that life begins at conception. This, then, involves this bill directly into a woman's right to choose-an issue that need not be raised and should not be raised in this debate.

Although the text of the amendment itself technically provides an exception for abortion, experts on both sides of this issue agree the language in the bill will clearly place into Federal law a definition of life that will chip away at the right to choose as outlined in Roe v. Wade. I hope to make that crystal clear as I go on.

The Philadelphia Inquirer in its editorial yesterday put it succinctly by saying:
If passed and signed, as promised by President Bush, the Federal law would be the first to recognize unborn children at any stage of development as victims with legal rights separate from those of their mothers. . . . It's so easy to see how a Federal unborn victims law, coupled with unborn victims laws in 29 States, will form the basis of a new legal challenge to Roe v. Wade, the landmark case that gives women the right to terminate certain pregnancies. If a fetus who dies during a crime is a murder victim, then isn't abortion murder?

That is the Philadelphia Inquirer editorial of yesterday.
That is why I offered this substitute amendment. I think when I am finished describing the differences between our amendment and the underlying legislation, it will become crystal clear that these two measures accomplish the same goal in terms of criminal justice and the same goal in terms of deterrence.

The difference between the two measures-the only difference-is our substitute does not include a new unprecedented definition of when life begins.

The bottom line is this: It is unnecessary to include a definition of when life begins in this legislation, and including such language could, and I believe will, make it much more difficult to obtain convictions in these cases.

The substitute amendment I offer today essentially provides that if a perpetrator of an attack on a woman commits certain violent Federal crimes against that woman and harms or ends her pregnancy, a prosecutor can charge the perpetrator with the underlying Federal crime first but can also charge the perpetrator with harming or ending her pregnancy and effectively harming or killing another potential life.

How is this different from the DeWine bill? It is not different at all. The DeWine bill provides exactly the same provisions. A prosecutor can charge two crimes-one for the underlying attack on the woman and one for the termination of the pregnancy. The penalties in the DeWine bill are identical to the penalties in our amendment.

For instance, the DeWine bill provides that if the separate offense results in the ending of the pregnancy, the penalty is identical to the penalty for taking an adult's life. The Feinstein substitute is the same. The DeWine bill says the maximum penalty for ending a pregnancy is a life sentence, and the maximum penalty for harming that pregnancy is a 20-year sentence. The Feinstein substitute is the same.

Neither bill allows for the death penalty and neither bill applies to conduct to which the pregnant woman has consented.
The simple truth is this: Whichever bill passes in the end, a prosecutor will be given exactly the same ability to charge a defendant. The crimes are the same. The penalties are the same. Everything will be the same except a few simple words that inject the abortion debate into this issue by clearly establishing in criminal law for the first time in history that life begins at the moment of conception. I contend that if this result is incorporated in law, it will be the first step in removing a woman's right to choice, particularly in the early months of a pregnancy before viability.

As we all know, the question of when life begins is a profound and a deeply divisive one. So I don't believe we should be addressing that issue here today-without a hearing since the year 2000, without expert testimony, and without need to do so. But, more importantly than that, this language unnecessarily turns a simple law into a controversial one and, most importantly, this language could make it more difficult for prosecutors to obtain a conviction for the second defense of harming or ending a pregnancy. I will describe why later.

It is possible that some pro-choice jurors might refuse to convict simply because the language of the law refers to an unborn "child in utero"-that is a quote, "child in utero," that is bill language-when the victim may have only been 1 week or even 1 day pregnant.

An embryo in this bill becomes a person for the purpose of Federal criminal sanctions for the first time in America's history. That is the significance of this bill. This substitute allows jurors to look at evidence and the law and it doesn't force jurors to grapple with the complicated and controversial issue of when life begins.

Including language defining the beginning of life is not in any way necessary to the criminal law but, rather, it is only relevant to the abortion debate.

Let me show you a statement that I believe reveals the clear intent of this bill. That statement is made by Samuel Casey, executive director and CEO of the Christian Legal Society. This is the intent:
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In as many areas as we can, we want to put on the books that the embryo is a person . . . that sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection-even protection that would trump a woman's interest in terminating a pregnancy.

This will be the first strike against all abortion in the United States of America. This will draw back the veil and, I believe, makes crystal clear what this legislation actually is. This is the key to much of the support for this legislation: Not just adding a new criminal law on the books, but also defining life as beginning at conception in statute here and then in the future, wherever else and however else possible. This is a concerted effort to insert the definition of when life begins into the law wherever possible.

Let me give some examples of quotes that again make this very clear. The intention of the antichoice community has been clearly revealed by a Republican strategist by the name of Jeffrey Bell. Here is how he put it:
Parental notification rules don't really prohibit anything. They don't ban the act of abortion. But a cloning ban-this is saying that something should be illegal. And if taking [unborn] human life became illegal, that would be a breakthrough. Since Roe, no one has been able to do that.

So this, Members of the Senate, is clearly the agenda, freezing the law, any law, in this case criminal law, that life begins at conception. Then, once declared legally, that law becomes the stepping-stone to refuse embryonic stem cell research and to ban abortion. Once the law defines human life as beginning at conception, stem cell research could become murder, abortion becomes murder, even in the first days of a pregnancy.

That is where this is going. Please see it. Understand it. Know it. Everyone in this body who believes embryonic stem cell research holds a promise for cures to Parkinson's, for cures to Alzheimer's, for cures to juvenile diabetes, for perhaps spinal cord rupture repair, will have to contend with a statute that has said life begins at conception. So embryonic stem cell research may become murder and abortion in the first trimester becomes murder. That is where this debate is taking us. That is the reason for this bill.

The supporters of this bill will say they do not want to undermine Roe, but that is precisely what Nebraska State senator Mike Foley said when he proposed legislation to allow wrongful death suits involving the termination of a pregnancy. Let me quote him. Let me pull back the veil again:

We said specifically in our bill that we did not want to challenge Roe v. Wade, and that would not affect abortion in the legal sense. But philosophically, sure, these laws are a challenge . . . If a state can put someone in jail for life because they took the life of an unborn child, then we're clearly saying there is something very valuable there.

Why is he saying that? He is saying that because a fetus, even at conception, becomes a person, becomes a human being.
Professor R. Alta Charo of the University of Wisconsin further points out how these efforts are aimed at changing the law and how the Supreme Court might rule in future abortion cases. Charo said recently:
If you can get enough of these bricks in place, draw enough examples from different parts of life and law where embryos are treated as babies, then how can the Supreme Court say they're not? This is, without question, conscious strategy.

This is a professor of law at the University of Wisconsin, pulling the veil back further and exposing this exactly for what it is, a "conscious strategy" to say life begins at conception and enshrine it in this Federal law, and then other laws, and then other laws, and then go to the Supreme Court and Roe vs. Wade is struck down.

In a CNN interview last May, the distinguished chairman of the Senate Judiciary Committee-and I have had the pleasure of serving on that committee for 12 years-made the following comment:

They say it undermines abortion rights. It does undermine it. But that's irrelevant. We're concerned here about a woman and her child . . . The partisan arguments over abortion should not stop at a bill that protects women and children.

If that is true, then the Senator from Utah should vote for our amendment because our amendment does exactly the same thing, the same penalties for the same crimes as the House bill.

When Justice Harry Blackmun wrote in 1973 the Roe decision, he said:
. . . the unborn have never been recognized in law as persons in the whole sense . . .

Let me repeat that: "the unborn have never been recognized in the law as persons in the whole sense."

What he did by saying that was actually, inadvertently provide a roadmap for the anti-choice people and those who want to undermine Roe and eventually to reverse it. This bill, the underlying bill, is following that roadmap by changing a criminal law in a way which clearly says an embryo can be an individual as a person for the purposes of criminal prosecution.

Clearly, this is a concerted effort to codify in law the legal recognition life begins at conception. If we allow that to happen today in this bill or in any bill, we put the right to choose squarely at risk. Roe v. Wade allowed States to claim a legitimate interest in preventing abortion postviability. Many states-and we both know that-have laws on the books with respect to the third trimester and even the second trimester.

If the concept of viability, which means when a fetus can live outside of the womb, gives way to a definition that provides life begins at conception, we could soon see abortion in this country outlawed entirely. Our amendment avoids that problem and focuses only on the need to increase penalties for those who attack pregnant women.

There has been a lot of discussion about the tragic Laci Peterson case in my State of California. I have had the pleasure of meeting with Laci's mother, Sharon Rocha, a very fine woman and a woman who I can understand is decimated by what happened to her daughter. Some in the Senate have suggested that this tragedy is evidence of a loophole in Federal law that needs to be closed.

However, the House bill and the DeWine bill will have no impact in any way, shape, or form on the Laci Peterson case. The perpetrator of that crime will be prosecuted and punished under current California law and the perpetrators of almost all similar crimes through the country will, in fact, be prosecuted under State laws, not a Federal law, unless the crime takes place on Federal property.

In my State of California, the legislature amended California's existing murder statute in 1970-that is 34 years ago-to read as follows:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

Now, if this were the case, if this were written in Federal law, easy, I would support it in a minute because it draws a distinction, it permits the "double charge" that both Senator DeWine and I agree is necessary. But the use of the words "or fetus" makes a distinction between a human being and a fetus for purposes of the application of the homicide statute. That is important. And that is the law under which Laci Peterson's alleged murderer is going to be prosecuted.

If you look at it, you will see it is completely adequate. The complexity of that case, which continues today, is one that relates to evidence and proof, not a problem with statutes or penalties. The California statute is wholly adequate. So the bill we discuss today would have absolutely no impact on the Laci Peterson case, none.

Now, I would like to bring to the Senate's attention a July 10 letter from a Stanford law professor. He goes into the problems of what this law, if passed, could actually do in the courtroom to actual prosecutions and to juries. His name is George Fisher. He is a criminal law expert. He is a former prosecutor. He served as an assistant DA, an assistant attorney general. He has taught criminal law at Stanford Law School since 1995, and he has founded Stanford's criminal prosecution unit.

He makes three points. Let me quote him:

The Bill's apparent purpose of influencing the course of abortion politics will discourage prosecutions under any future Act. I do not know what motives gave rise to the Bill's use of the expressions "child in utero" and "child, who is in utero," but I do know that any vaguely savvy reader will conclude that these terms and the Bill's definition of them were intended by the Bill's authors to influence the course of abortion politics.

[Page S3128]

If the authors of the Bill truly seek to protect unborn life from criminal violence, they will better accomplish this purpose by avoiding such expressions as "child in utero." Better alternatives would refer to injury or death to a fetus or damage to or termination of a pregnancy.

Dr. Fisher goes on to say:

The Bill's apparent purpose of influencing the course of abortion politics will motivate prosecutors to exclude those prospective jurors who otherwise would be most sympathetic to the prosecution's case.

I predict that many or most judges will bar prosecutors and defense counsel from questioning prospective jurors about their views on abortion or about related matters such as their religion, religious practices, or political affiliations. Forced to act largely on instinct, prosecutors may be inclined to exercise peremptory challenges against those prospective jurors who appear to be most sympathetic to the rights of pregnant women. This result clearly would frustrate the Bill's stated purpose of protecting unborn life from criminal violence.

He concludes:

The Bill's apparent purpose of influencing the course of abortion politics offends the integrity of the criminal law. To anyone who cares deeply about the integrity of the criminal law, this Bill's apparent attempt to insert an abortion broadside into the criminal code is greatly offensive.

Now, that is a former prosecutor, a former assistant DA, assistant AG, a professor of law at Stanford Law School-one of the great law schools of our country-and head of the criminal prosecution unit at Stanford Law School.

I ask unanimous consent to have the entire letter printed in the RECORD following my remarks.

The PRESIDING OFFICER (Mr. ENSIGN). Without objection, it is so ordered.
(See exhibit 1.)

Mrs. FEINSTEIN. Mr. President, the substitute amendment, which I have offered, has been crafted to avoid these problems.

Our amendment, the Motherhood Protection Act, will accomplish the same goal as the Unborn Victims of Violence Act, but will do so in a way that does not involve us in the debate about abortion or when life begins. In my view, there is no reason to vote against this substitute unless the intention is to establish legally that human life, for the purposes of Federal criminal law, begins at the moment of conception because, ladies and gentlemen, that is exactly what this bill does.

To emphasize the point, let me again turn to the comments of Samuel Casey, executive director and CEO of the Christian Legal Society, who clearly states the intention behind the bill in this quote:

In as many areas as we can, we want to put on the books that the embryo is a person. . . .That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection-even protection that would trump a woman's interest in terminating a pregnancy.

Let there be no doubt about the intent. Anyone who is pro-choice cannot vote for this bill without the expectation that they are creating the first legal bridge to destroy Roe v. Wade.

Now, there is a time and a place to discuss the morality and philosophy of when life begins. This is not that time. Now is the time to change our Federal law to punish criminals who would inflict grievous injuries or death upon pregnant women on Federal lands. So I urge my colleagues to support the substitute amendment.

EXHIBIT 1
STANFORD LAW SCHOOL,
Stanford, CA, July 10, 2003.
Senator DIANNE FEINSTEIN,
U.S. Senate, Senate Hart Office Building, Washington, DC.

DEAR SENATOR FEINSTEIN: I wish to express my concern about the current formulation of S. 1019, the Unborn Victims of Violence Act of 2003. Although I fully endorse the Bill's ultimate aim of protecting pregnant women from the physical and psychological trauma of an endangered or lost pregnancy, I believe that the Bill's current formulation will frustrate rather than forward this goal.

I write both as a former prosecutor and as a law professor specializing in criminal law and criminal prosecution. At the outset of my career, I served as an assistant district attorney in Middlesex County, Mass., and as an assistant attorney general in the Massachusetts Attorney General's office. I then went to Boston College Law School, where I administered and taught in the criminal prosecution clinic. I have been at Stanford since 1995 and a tenured professor of law since 1999; during the next academic year, I will serve as Academic Associate Dean. In 1996 I founded Stanford's criminal prosecution clinic and have administered and taught in the clinic ever since. I have also created a course in prosecutorial ethics, which I taught at Boston College Law School and, as a visitor, at Harvard Law School.

My background and interest in criminal prosecution prompt me to raise three objections to this Bill. All of them focus on the Bill's use of the expressions "child in utero" and "child, who is in utero," and on its definition of these terms as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

First: The Bill's apparent purpose of influencing the course of abortion politics will discourage prosecutions under any future Act.

I do not know what motives gave rise to the Bill's use of the expressions "child in utero" and "child, who is in utero," but I do know that any vaguely savvy reader will conclude that these terms and the Bill's definition of them were intended by the Bill's authors to influence the course of abortion politics. It is a fair prediction that when a pro-life President is in office, prosecutions under this Bill will be more frequent than when a pro-choice President is in office. That is because the public will interpret this Bill as suggesting that abortion is a potentially criminal act and will interpret prosecutions under the Bill as endorsing this sentiment.

If the authors of the Bill truly seek to protect unborn life from criminal violence, they will better accomplish this purpose by avoiding such expressions as "child in utero." Better alternatives would refer to injury or death to a fetus or damage to or termination of a pregnancy.

Second: The Bill's apparent purpose of influencing the course of abortion politics will motivate prosecutors to exclude those prospective jurors who otherwise would be most sympathetic to the prosecution's case.

If I were prosecuting a case under this Bill, I would hope to have a jury that includes persons deeply sensitive to the rights and interests of pregnant women. Such jurors would regard an attack on a pregnant woman as being a twofold crime, comprising both the injury directly inflicted on the mother and the stark emotional and physical trauma resulting from injury to or loss of her pregnancy.

But such jurors also will be more likely than others to believe that pregnant women have the right to exercise autonomy over their bodies and to choose whether to abort a pregnancy. I predict that many or most judges will bar prosecutors and defense counsel from questioning prospective jurors about their views on abortion or about related matters such as their religion, religious practices, or political affiliations. Forced to act largely on instinct, prosecutors may be inclined to exercise peremptory challenges against those prospective jurors who appear to be most sympathetic to the rights of pregnant women. This result clearly would frustrate the Bill's stated purpose of protecting unborn life from criminal violence.

Third: The Bill's apparent purpose of influencing the course of abortion politics offends the integrity of the criminal law.

To anyone who cares deeply about the integrity of the criminal law, this Bill's apparent attempt to insert an abortion broadside into the criminal code is greatly offensive. The power to inflict criminal penalties is, second only to the power to wage war, the highest trust invested in our institutions of government. Because the power to make and enforce criminal laws inherently carries enormous potential for abuse, those who exercise that power must always do so with a spirit free of any ulterior political motive. The American Bar Association's Standards Relating to the Administration of Criminal Justice provide that "[i]n making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved . . . ." (Standard 3-3.9(d).) Not all prosecutors conduct themselves with fidelity to this principle, but we may readily condemn those who do not. We may likewise condemn other public actors who abuse the sacred public trust of the criminal sanction for political ends.

For these reasons, I object to the current formulation of the Unborn Victims of Violence Bill. As I am confident that an alternative version of the Bill can fully accomplish its stated purpose of protecting unborn life from criminal violence while avoiding each of the difficulties I have outlined above, I strongly encourage the Senate to modify the Bill in the ways I have suggested above or in some other manner that avoids the freighted and frankly politicized terms, "child in utero" and "child, who is in utero."

My thanks to you for your consideration of my views.
Sincerely,

GEORGE FISHER,
Professor of Law.

Mr. LAUTENBERG. Mr. President, I thank my colleague from California and also our distinguished colleague from Ohio.
I rise to express my strong opposition to the underlying bill and support for the amendment by the Senator from California.
I have long supported legislation that combats domestic violence. I was the author of the domestic violence gun ban because abusers should not have access to weapons, to guns. Whether an abuser is terrorizing his wife or his children, let's take away their means to inflict further terror and abuse. So far, my law has prevented nearly 30,000 abusers from obtaining guns.

Because of my long-term commitment to stopping violence against women and children, I take offense at the fact that the backers of this bill are exploiting this issue in order to advance another anti-choice agenda.

We see this regularly around this place. I saw it in a commerce subcommittee meeting that was supposed to discuss science,
space, and technology. The witnesses who were at the table were there to talk about their opposition to abortion and their experience after they themselves had abortions. They made their decisions after an action that they took that placed them in that position. Now they wanted to block everybody else from having a chance to make their personal choices.

We have to understand what underlies this issue. Yes, it is worthwhile to protect people and those who are not yet born against violence, but to make it a crime of this magnitude, when there is so much else at stake in the matter of choice, decided many years ago by the Supreme Court-supporters of this bill will tell you this legislation protects women, protects children, and this is a bill about punishing crime. But if you want to know what this bill is really about, you only need listen to what a leading supporter of this bill told CNN when asked about the legislation. I quote him:

They say it undermines abortion rights. It does . . . But that's irrelevant.

That is the prevailing attitude of those who want to impose yet another restriction on a woman's choice, on the protection of a woman's health. This bill is intended, plainly and simply, to undermine Roe v. Wade. But rather than being direct about the goal, anti-choice advocates want to use tragedies like violence against women as a red herring to move their agenda.

Over and over, we see this body taking up legislation that I believe is part of an attempt to establish what I call a "male-ogarchy" in our society. A male-ogarchy is a society in which men are making decisions for and about women. Anti-choice advocates simply don't trust women and their doctors to know what is best for their bodies and their lives. We even encountered this male-ogarchy last year when this body told doctors and their patients that it is Congress, rather than the medical experts, who know best about their health. And when the so-called partial-birth abortion bill was signed, there were all men on the stage with the President of the United States, smiling and gloating as they took away the right of a woman, in consultation with her doctor and her conscience, to make a decision that, though painful, is appropriate for her well-being.

Do we want to decide here whether or not a woman has a right to make a decision about her choice for an abortion? Perhaps she has two, three, four other children at home and her health is in jeopardy. We are saying: It doesn't matter what you think, Madam. We are going to make the decision for you.

That is why there wasn't one woman standing with the President at the White House the day that so-called partial-birth abortion prohibition passed the Senate, when the President signed the bill.

President Bush and his supporters in the Senate say they care about domestic violence and protecting women. But if that is the case, how, then, do we explain the fact that the President's budget cuts funding for the Violence Against Women Act programs by $116 million next year? Is that going to help women? Is that going to make life better for them? No. It is going to make life worse. Those are living people. Those are people who were here. Those are people for whom this male group wants to decide, make decisions.

If Congress wants to get serious about violence against women and children, let's do something real about it. Let's fund programs that provide money to law enforcement to prevent domestic violence and sexual assault. Let's fund battered women's programs and rape crisis centers instead of cutting funding for these often lifesaving services. Let's improve access to shelters, making it easier for abused women and their children to flee that abuse.

If this so-called Unborn Victims of Violence Act were actually about violent crime, then the domestic violence community would be in support of it. But they oppose the bill. The National Network to End Domestic Violence, the National Coalition Against Domestic Violence, and the Family Violence Prevention Fund, all oppose this legislation.

Many backers of this bill also support giving a $1 trillion tax break to the wealthiest among us, rather than giving it to the struggling working families who need it to help pay for everyday goods and services, programs such as Head Start for children who don't have a comfortable home life that permits them to engage in the process of learning or of expecting to learn, who often get their only nutritional meal from the program. Three hundred thousand of those children are denied access to these programs because we have taken away the funding to give tax breaks to those who have been fortunate enough to live in this country, to make a lot of money, to succeed.

I am one of those. I had a good business career, as did many here. We don't need this kind of thing. We don't want it. We want our country to be strong. We want the strength to be built in a harmonious society and to lend a hand to those who don't have the ability to help themselves. But now that can't happen. We are focused on giving tax breaks to the wealthy and making them permanent, as we dig ourselves deeper into debt.

Many of my colleagues who support this bill also reject expending health insurance coverage for poor and lower middle-class children and their families. Many who support this bill will tell you they want to simply protect children. I find it ironic that they only want to protect children before they are born, but they don't want to do what they have to after they are born. I see it as hypocrisy.

I challenge supporters of this bill to get serious about protecting women and children and pass meaningful legislation that improves the lives of these women and children, not this undercover move to restrict choice for women.

Mr. DeWINE. Mr. President, I have a great deal of respect for my colleagues from New Jersey and California. My colleague from New Jersey knows I care about what happens after children are born. I care about their health. I believe I have demonstrated that in the Senate. In fact, he and I have worked on these issues together. I have worked with my colleague from California on many issues having to do with children. We just happen to disagree on this issue.

I have a great deal of respect for both of them. We have worked together on a bipartisan basis on a wide range of issues. I would hope that as we debate this bill, we would focus on the legislation. I say that with all due respect. I don't understand-again, with all due respect to my colleagues-what debate about the motives of people has to do with what the facts are.

I am going to try to confine my debate to what I think are the essential facts. I think they are fairly simple. Let me talk for a few moments about what I believe are the essential facts.

I ask my colleagues who are listening to this debate to remember a couple of things about the Feinstein amendment. I am going to keep coming back to these central facts about the Feinstein amendment.
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No. 1, the Feinstein amendment does not recognize a second victim. Our bill does. The Feinstein amendment creates a legal fiction. It is contorted, it twists the law in a sense-maybe a better way of saying it is not that it twists the law; it doesn't do that, but it twists the reality of the common sense of people when they look at this. When they see a pregnant woman who is assaulted and her child dies, they intuitively know there is a victim besides the mother. They know the mother is a victim, but they also know there is a second victim.

The vast majority of the American people, if you ask them was there another victim, will say of course there are two victims.

Our bill recognizes the second victim. The Feinstein amendment refuses to recognize the second victim. Now we can talk about punishment and all kinds of things, but it refuses to recognize good common sense.

This bill in front of us has nothing to do with abortion. It has absolutely nothing to do with abortion. We have explicitly exempted abortion in this bill. Yet opponents still try to argue this point.

Our statute could be no more clear on this point. Senator Feinstein uses identical language to exempt abortion or any related activity in her amendment. This bill simply doesn't affect abortion rights whatsoever. The language could not be clearer. I invite my colleagues to pick up the bill and look at the section. It exempts any reference to abortion, anything a mother would do to her own child, anything a doctor would do is exempted. It has nothing to do with abortion, not at all. That is not what this is about.

Point No. 1, this bill recognizes a second victim; the Feinstein amendment does not. If you believe there is a second victim, you cannot vote for the Feinstein amendment. It denies there is a second victim.

The second point I want to make will come as a surprise, I think, to the Members of the Senate. It will come as a surprise to you until you pick up the Feinstein amendment and read it carefully. I invite you to do that. Pick up the amendment and read it carefully.

First, the Feinstein amendment does not punish the criminal for harming or injuring the baby. Let me read it. It only punishes the criminal for "interrupting or terminating a pregnancy." That is the language, "interrupting or terminating a pregnancy." But not for injuring. So if a child is injured, not killed, the pregnancy not terminated, the Feinstein amendment will not cover it. That, to me, is a problem. That is a fatal fallacy, fatal problem.

Here is the language:
Any person who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the termination of a pregnancy or the interruption of the normal course of pregnancy, including termination of the pregnancy other than by live birth is guilty of a separate offense under this section.

It does not cover the injury of a fetus. That is a problem.

Let's turn to the penalty section. The penalty section is fatally flawed. The penalty section won't work. The Justice Department has sent a letter and, in their opinion, the penalty section provides no penalty, under the Feinstein amendment, for the killing of the fetus. It is vague; it is unclear at best. It defines additional crimes as the interruption or termination of a pregnancy. When it describes the punishment, it refers to injury or death. Whose injury or death are we talking about here? Is it the unborn child? Whose injury?

The Feinstein amendment doesn't recognize that the interruption and termination of the pregnancy means the injury or death of the fetus because it won't acknowledge the fetus, of course, as a separate being.

The amendment is circular and really without meaning. Put simply, there is no additional punishment because under this amendment there is no additional victim. The Feinstein amendment goes out of its way not to recognize another victim. What is the reference to? Let me read this section and, again, this is a technical reading, but that is how you have to read a criminal section. This is how judges have to do it. The bottom line is-I am going to say it again and again-if you vote for Feinstein, there will be no penalty at all for the killing of a second victim, the child. There clearly is none for the injury of that child. Let me read the penalty section, 2(a), under the Feinstein amendment:

Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman.

What injury or death are we talking about? To whom?

The language doesn't acknowledge injury or death to the fetus. Who is it referencing in the previous paragraph? It clearly is fatally flawed. It is difficult for me to read this and for people to understand it. But to get the section out, it clearly doesn't work and is fatally flawed. So this does not recognize the death, does not recognize any punishment. It would not provide punishment and it clearly presents a problem.

My friend from California has said the DeWine bill would have no effect on the Laci Peterson case. That is true; it would not. Fortunately, California has a similar law that provides for a second victim, the punishment for the death of that child. While it is true the DeWine bill would have no effect on the Laci Peterson case, the fact is if the Feinstein amendment, or a similar amendment to the Feinstein amendment, had been approved by the California legislature at the time their law was being considered, there would be no punishment for the death of baby Conner Peterson. There would have been in California no recognition for that second victim. There would have been no recognition of the death of that second victim.

If the Feinstein amendment would have passed, or a version of it, in California, if the California legislature would have done what Senator Feinstein is asking us to do today in this Federal legislation, they would not have been able to prosecute for the death of Conner Peterson. They would not have been able to recognize that death as a second victim death. That is the fundamental fact, and that is the fundamental difference between the DeWine bill and the Feinstein amendment.

We have heard a lot of talk about motives and agendas. I think we should stop doing that, and I think we should look to the victims and hear from the victims. There are three victims. The families of the victims were here yesterday. When one talks with the victims, it is clear the victims believe there are two victims. Let me talk about several cases. They are tragic cases and are difficult to listen to, but I think it brings home what we are really talking about.

Let me talk about the example of Airman Gregory Robbins. This is a case about which I have talked many times on the Senate floor, but I think is worth repeating today because it illustrates the injustice that exists today in our Federal law.

In 1996, Airman Robbins and his family were stationed in my home State of Ohio at Wright-Patterson Air Force Base in Dayton. At that time, Mrs. Robbins was more than 8 months pregnant with their daughter they named Jasmine. On September 12, 1996, in a fit of rage, Airman Robbins wrapped his fist in a T-shirt and savagely beat his wife by striking her repeatedly about the head and stomach. Fortunately, Mrs. Robbins survived this violent assault, but tragically, her uterus ruptured during the attack, expelling the baby into her abdominal cavity, causing Jasmine's death.

Does anyone truly think Jasmine was not a victim? I think we know she was. Not only was her mom a victim, but she was as well.

Let me give another example. In August 1999, Shiwona Pace of Little Rock, AR, was days away from giving birth. She was understandably thrilled about her pregnancy. Her boyfriend, Eric Bullock, however, did not share her joy and enthusiasm. In fact, Eric wanted the baby to die. So he hired three thugs to beat his girlfriend so badly that she lost the unborn baby whom she named Heaven. I might add, she lost that baby 1 day shy of her predicted delivery date. Shiwona testified at a Senate judiciary hearing we held in Washington on February 23, 2000. This is what she said:
I begged and pleaded for the life of my unborn child, but they showed me no mercy. In fact, one of them told me, "Your baby is dying tonight." I was choked, hit in the face with a gun, slapped, punched, and kicked repeatedly in the stomach. One of them even put a gun in my mouth and threatened to shoot.

Do we really believe Shiwona was the only victim here? Do we really think we should adopt an amendment that says she was the only victim? I don't think so. How can we suggest to Shiwona that her child was not murdered? Should we twist the law so we don't recognize that? I don't think we should. And Federal law, quite frankly, must recognize this wrong for what it is. It is a wrong against two separate and distinct victims.
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Another example: I can think of no better way to tell the story of Baby Zachariah and his mother Tracy Marciniak than by simply reading from her testimony before the House Judiciary Subcommittee on the Constitution which occurred on July 8, 2003. Let me read it:
I carried Zachariah in my womb for almost nine full months. He was killed in my womb, only 5 days from his delivery date. The first time I ever held him in my arms, he was already dead.

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.

Continued in Part II

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