By:  Lindsey Graham
Date: May 7, 2003
Location: Unknown




BYLINE: Chris Matthews; Howard Fineman

GUESTS: Lindsey Graham; Wendy Murphy; Joe Tacopina; Henry Waxman; David Dreier; Katrina Vanden Heuvel; Michael Graham

Congress is considering a Bill to criminalize violence done to unborn children. But does this raise any issues concerning abortion? And is Scott Peterson's defense a reasonable one? Democrats blast Bush for his speech on the USS Abraham Lincoln, saying he did it for political reasons.

CHRIS MATTHEWS, HOST: I'm Chris Matthews. Let's play HARDBALL.

We begin tonight with the Laci Peterson case. On Monday, Laci Peterson's family sent a letter to members of Congress lending their support to the Unborn Victims of Violence Act.

Laci's family writes, quote, "As the family of Laci Patterson—Peterson and her unborn son, Connor, this Bill is very close to our hearts... Knowing that perpetrators who murder pregnant women will pay the price not only for the loss of the mother, but the baby, as well, will help bring justice for these victims and hopefully act as a deterrent to those considering such heinous acts.

Currently there are laws in over half the states that criminalize harm done to pregnant women.

Senator Lindsey Graham is a Republican from South Carolina and co-sponsored the Bill. Wendy Murphy is a former prosecutor and Joe Tacopina is a criminal defense attorney. Thank you very much for joining us.

Senator, you first of all are a co-sponsor of this Bill. Why is it necessary?

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA: Well, at the federal level, there is no statute to prosecute someone if they attack a pregnant woman and do damage to her unborn child. There are 26 states...

MATTHEWS: We're looking at them now.

GRAHAM: The best way is to explain is the Laci Peterson case itself.

For 30 years, there's been a statute on the books in California that says you can be prosecuted if you attack a pregnant woman and do damage or kill the child for two events. The crime against the mother, the unborn child.

In 1999, I introduced this Bill. It passed the House 254-whatever. In 2001, it passed 252 votes. Bipartisan, 50 Democrats or more each time. Pro-life, pro-choice people saying the following: If the woman chooses to have the child, we want to make sure that if a criminal comes along and does damage or injury to that child, that the full force of the law will follow them.

At the federal level there is no such law. This would apply only at the federal level. It would not preempt any state law. It doesn't cover abortions. It has nothing to do with abortions. You can't prosecute the mother herself. You can only prosecute people who attack pregnant women where federal jurisdiction exists and you can prosecute them twice, not once.

MATTHEWS: Why do you say, Senator, you know the opposition as well as I do. What do you say to those on the other side of the issue who say this is a secret way to establish the fact that under law that a child is a child from the moment of conception.

GRAHAM: Here's what I would say.

MATTHEWS: Because that's the language of your law. It says child in utero from the moment of conception on. Isn't that a language, a new language that doesn't conform to what Roe v. Wade says.

Roe v. Wade, the law that allows women—the court decision that allows women to have abortions never says the child, it never says anything about what's going on inside except potential life is all it says.

GRAHAM: In the statute itself, we exclude any prosecution for a lawful abortion. In California, Roe v. Wade rights has existed in conjunction with this statute for 30 years. California is the best example of what we're trying to do.

In California, you're prosecuting the person, they think, who has done this heinous crime for two deaths. The body washed up of Laci Peterson. The baby washed up.

Most Americans divide evenly over the abortion debate. But when you ask them the following question, "If a criminal attacks a woman who has chosen to have the child, should the criminal be responsible for damage to the unborn child?" -- 80 percent of us say yes. Twenty-six percent -- 26 states have said yes. California said yes.

So California is the best example of how this works. You can have a legal abortion in California. You can't, as a criminal, attack a pregnant woman and kill or harm her unborn child without being prosecuted.

MATTHEWS: But being a conservative, don't you believe that the states should pass laws and not the federal government? Why do you want the federal government tell the states what to do in terms of criminal law?

GRAHAM: I am a good conservative. This only applies for federal jurisdiction. This does not change any state law. Any state who doesn't have this law is not going to be...

MATTHEWS: Give me an example of how our law would affect.

GRAHAM: A member of Congress, a federal law applies to us if there's a pregnant member of Congress on Capitol Hill, there's no state law. It's only federal law. So if you attacked a member of Congress who was pregnant on Capitol Hill, there is no statute to address the loss of her unborn child.

The Oklahoma City bombing case, there were three women in the building when it was blown up. One of them was a federal employee. Federal law protects federal employees.


GRAHAM: This would allow federal law to address the unborn child lost through violence, and it only applies at the federal level. It doesn't preempt state law.

MATTHEWS: OK. Senator Graham of South Carolina. Thanks for joining us. It's great you have to back on the show.

Let's go to Wendy Murphy right now and Joe Tacopina to talk about this. I want to get to the law and what's going on in that case in a minute. But first of all, let's deal with this matter.

Is it necessary to pass a federal law, Wendy?

WENDY MURPHY, FORMER PROSECUTOR: You know, I don't think so, Chris. I mean, I understand what the Senator is saying. There are certainly kinds of homicide that can happen in places where there's only federal jurisdiction or at least joint jurisdiction. And he wants to cover those areas with a law that could provide for prosecution of a pregnant woman so that do you vindicate the rights of the child who hasn't yet been born.

But really we don't have a large problem as a matter of federal law that needs to be cured by this piece of legislation. I think it is to some extent nothing but political—you know, politically motivated by the Bush administration and some conservative members of Congress to play placate the conservative right.

MATTHEWS: Be more particular. How does this placate the right?

MURPHY: Well, I mean, one of the things that is...

MATTHEWS: Isn't everybody against the murder of unborn children?

MURPHY: Well, sure, and so am I. I'm not against the fact that some states do have laws that allow for the prosecution of two homicides in these types of cases. But I am against the politicization of criminal conduct, which—I think this is an exploitation of the fact that lots of people who are on both sides of the political alley want to fight crime. And I'm one of them.

But for example, as you noted, the language in the Bill refers to the child in utero. If this were really something pure, as the Senator suggests, and not designed to deal with the abortion issue, why didn't they use language that's medical and consistent with Roe v. Wade? Why didn't they use words like fetus, embryo, blastesis (ph)?

I mean, the problem with this Bill, among other things, is that it creates a kind of equality between a very early stage blastesis (ph), a multiple collection of cells two days after conception, and punishes that collection of cell as being equal in a moral sense to the killing of a fully formed adult...

MATTHEWS: How is the word—Wendy, how is the—we've wrestled with this producing this show tonight. How is the word "fetus" any less value laden than the phrase "unborn child"? They're both value laden. They both establish a point of view about when life begins. Using the words does that.

You say using the word "fetus" is neutral. A lot of pro-lifers would say no, it's not neutral. It says that unless you're born, you're not alive. You're not a person. That's a value judgment.

MURPHY: Well, I think one of the problems with the language, in addition to what I just described, is that to put any kind of personhood language in a piece of federal legislation, you know, advocates for pro-life position would absolutely exploit that in the future.

I mean, it's a slippery slope argument. If you get personhood language, and that's what's in this Bill. They call this the child in utero. Then you've created a person-like language that for sure, activists will use in the future.

MATTHEWS: So you're like Charlton Heston on guns.

MURPHY: Well, I'm not trying to be cute about this.

MATTHEWS: Any recognition of human life before birth brings open the question of a woman's right to choose an abortion.

MURPHY: Well, I think it presents a slippery slope potential for the future that will be exploited. There's no doubt about it. You've created a kind of personhood.

MATTHEWS: You've held over Senator Graham. He wants to retort.

GRAHAM: Let me just retort by saying the obvious. California has had the law on the books that allows somebody to be prosecuted for doing injury causing a death to an unborn child for 30 years. And they have abortions legally had in California, pick up a phone book. They do co-exist.

The reason we need it at the federal level, before I got into the Senate, I was a prosecutor in the military. We had cases involving attacks on pregnant women. Do you know the number one cause of death among pregnant women in certain jurisdictions is murder? Boyfriends beating up pregnant women?

And when you're on the floor being beat up by your boyfriend, you're not saying, oh, I'm worried about my fetus. Don't hurt my baby.

MURPHY: But Senator—Senator, if I could just ask you, then why not use language that wouldn't create this kind of rhetoric, this kind of potential problem for the future? Why not call it a fetus?

GRAHAM: This statute is the—modeled after what 14 states have. This is the predominant way of describing the unborn child.

I'm doing something very simple. If you choose to have the baby, and someone attacks you, and you lose your baby because of a violent crime, I think you've suffered twice. You've suffered yourself.

And you've suffered in terms of your family losing that's unborn child. And if you listen to her, there's no two things on the beach. What washed up on the beach was the woman and the baby.

MATTHEWS: By the way, just to correct something, before we end this conversation, the term "child in utero" is the exact same phrase used in the language to prevent the execution by any state of a woman who was pregnant. So there's already language like that on the books, Wendy.

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