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Unborn Victims of Violence Act of 2004 - Part II

Location: Washington, DC

Part II


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.

Zachariah and I 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 3 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 in the eyes of the law, no murder had occurred. I was devastated.

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.

The true nature of a crime, Mr. President.
I know that some lawmakers and some groups insist there is no such thing as an unborn victim, and that crimes like this only have a single victim-but that is callous and that 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.

I will have more to say about this in a few minutes. At this point, I yield the floor.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Mr. President, may I briefly suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mrs. FEINSTEIN. I thank the Chair.

Mr. President, I wish to respond to some of the concerns and complaints of the distinguished Senator from Ohio about our
substitute amendment. Let me take on his allegation that this substitute does not provide a punishment for harming a child. In fact, it does. It clearly states that the interruption of the normal course of the pregnancy relates to injury to the fetus. So there is a penalty for harm.

Secondly, he stated my amendment would not provide any penalty for ending a pregnancy; that it was a legal fiction in that sense.

I think this is clearly a misunderstanding of the plain text of our amendment. We explicitly create a separate offense for interrupting or ending a pregnancy, and we explicitly state the penalty for that offense is the same as if the crime had resulted in the injury or death of a mother. That is explicit.

So the intent is clear. I think quibbling about whether the language is perfect, the amendment does exactly what the underlying bill does. I could have cleared that up with a modification, but the Senator would not let me send a modification to the desk, which in terms of just sheer congeniality is rather surprising because that could have been made crystal clear to everyone.

So I firmly believe our amendment does exactly the same thing as the DeWine amendment, but it does not do something his amendment does, and that is create life at the point of conception. His use of the words "child in utero" as opposed to the California statute's use of the words "or fetus" make a huge difference in the law legally. Once again,

I think that is clear.

The bottom line is we believe the intent and the crafting of this bill is very clear. We do not create a child in utero. We try to avoid getting to the point where life is defined.

We say that if the pregnancy is intentionally terminated and specific damages are done to the fetus, it is punished either through manslaughter in a second charge or murder in a second charge. I think the language is very clear. I think it is nitpicking to say it is not.

I can change it, but I am not allowed to change it. We have the modification, but we are not allowed to send the modification to the desk. I believe Members can vote on this amendment and know clearly they are assessing the same penalties for the same crimes as the underlying bill does. The only difference is we do not decide in our bill when life begins.

Let me read a couple of editorials and statements that have come out in recent days. There is one editorial this morning in the Los Angeles Times. I would like just quickly to read one paragraph:

The Senate is likely to vote today on a bill intended largely to score points in the endless, wearying abortion debate. The proposed Unborn Victims of Violence Act defines a child in utero as a member of the species homo sapiens, at any stage of development, who is carried in the womb. In other words, the child exists at the moment of conception. The House passed similar legislation last month. As with nearly every aspect of the abortion debate, Americans are deeply divided over when human life begins. However courts in most States generally accord more rights to a fetus considered viable outside the womb. DeWine's bill, S. 1019, offers a sweeping declaration that ignores prevailing scientific views and the national legal consensus. True, his bill specifically bars prosecution for abortion, but its effect, as DeWine intends, would be to give one side a new legal bullet in the broader abortion wars.

That is clear. I will go on. The Los Angeles Times is not the only editorial page that believes that. I indicated earlier this is true of an editorial in the Philadelphia Inquirer:

It is 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, a landmark case that gives women the right to terminate certain pregnancies. If a fetus who dies during a crime is a murder victim, why, then, isn't abortion murder?

From the Buffalo News:
Passage by House Republicans of a bill that treats an attack on a pregnant woman as separate crimes against her and her unborn child is at heart an attempt to erode abortion rights. It's a disingenuous and misguided bill and the Senate should make sure it goes no further.

That is the Buffalo News.
The New York Times, April 25. This is 2001.
Packaged as a crime fighting measure unrelated to abortion, the bill is actually aimed at fulfilling a long-time goal of the right-to-life movement. The goal is to enshrine in law the concept of fetal rights equal to but separate and distinct from the rights of pregnant women.

Another editorial of the New York Times:
The bill would add to the Federal Criminal Code a separate new offense to punish individuals who injure or cause death to a child who is in utero.

The Washington Post, October 2, 1999,
What makes this bill a bad idea is the very aspect of it that makes it attractive to its supporters, that it treats the fetus as a person separate from the mother though that same mother has a constitutional right to terminate her pregnancy. This is useful rhetorically for the pro-life world, but it is analytically incoherent.

The Blethen, ME, newspaper:
First considered in 1999, the bill purports to create new Federal crimes for the intentional harm or death of a fetus or unborn child. But, no matter how much supporters deny it, the bill's real intent is to undermine women's reproductive choices. If the bill is passed and signed into law, it would weaken the prudent and pragmatic decision handed down in Roe v. Wade.
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In my remarks, I have tried to show that this is a concerted effort. It need not be so. You can attach the same penalties for the same crimes, as our substitute does, without getting into the debate of where life begins. This bill chooses to get into the debate of where life begins and it defines life beginning at conception. It does so in a Federal criminal statute. It is one step in the building blocks of statutes that will constitute the ability to demolish Roe v. Wade.
I think every Member of this body who is pro-choice should vote against the underlying bill and for this amendment because in this amendment, without creating the separate person at conception, we establish the penalties for interruption or termination of a pregnancy. Those penalties are the same-same for murder, same for manslaughter, same for attempted murder, same for attempted manslaughter.

Again, I point out that in California what the State did 34 years ago was essentially amend the murder statute. By amending the definition in the Penal Code section 187, they provided a new definition of murder which said:

Murder is the unlawful killing of a human being, or a fetus with malice aforethought.
That is the bill under which the Laci Peterson case will be brought to court. It is a different idea because it clearly says that it is a fetus.

Additionally, there is information from those who wish to continue this pursuit to make a fetus a human life, to make an embryo a human life, that this is a concerted strategy aimed at weakening Roe v. Wade.

What we have tried to do is mimic the House bill with respect to the penalties but connect it to the termination of a pregnancy and thereby avoid the distinction of exactly when life begins for the purposes of statute law, in this case criminal statute law, and therefore avoid the problem.

I have indicated, from legal scholars, where they believe this will undermine prosecutions in this situation because they will encourage peremptory challenges of individuals who may have strong beliefs in choice and, therefore, not one likely to recognize that an embryo, or a day pregnancy, or a week pregnancy, or a month pregnancy is, in fact, a living being subject to criminal sanctions if their rights are violated.

It is a complicated issue. But it is a significant issue. It is an important issue.
The more I look at it and see the strategy of the anti-choice movement, the more I see that if you can establish a beachhead of rights in Federal criminal law here, and another statute there, and in a third statute somewhere else, you then begin the march to the Supreme Court in an attack on Roe. Roe sets up a trimester system giving the woman total rights in the first trimester, and then the State the right in the second and third trimester to intervene in certain cases, which has been the case in many State laws that have been passed. You now give the Supreme Court the ability to begin to say: "It is in law that the embryo has certain rights" and, therefore, forms the bulwark of the attack on Roe.
You also do something else insidious. I think you very much intervene in stem cell research. Stem cell research, and a good deal of the most auspicious of that research, deals with embryonic stem cells. If you have a law that says an embryo or a zygote is, in fact, a human life, then it is murder if you use that embryo for stem cell research, just as it becomes murder if that embryo is harmed or rejected in the course of an attack on a woman. We avoid all of that.

We simply say termination of a pregnancy, and termination of a pregnancy in the course of a criminal attack creates a second charge, and that second charge carries with it the same penalty as the original charge against the woman herself would carry.

That is the clear intent.
I regret that the Senator would not allow me to modify my amendment. I can never in 12 years remember any Senator being refused the right to modify an amendment, but perhaps we are playing by new rules these days. I know what goes around comes around in this body. I regret that.

But I believe on its face our substitute amendment is clear, it is definitive, it will stand the test of time, and it will prevent what we hope to prevent, which is the first major law which decides when life begins.

I yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER (Ms. MURKOWSKI). The Senator from Ohio.
Mr. DeWINE. Madam President, once again, I want to bring this debate back to its essence. I am afraid so much of the debate from the other side has been about motives-by quoting, with all due respect, the L.A. Times about peripheral issues.

Our intent, if you want to go by intent, is very simple. Our intent is to bring about justice for the victims of crime. Our intent is to bring about justice for the mother and for the child-for the unborn child as well as the mother. It is to conform with what the vast majority of the American people believe; that is, when a pregnant woman is assaulted and she either loses that child or that child is injured, there are, in fact, two victims. It is as simple as that.

On the abortion issue, let us be done with this once and for all. This bill has nothing to do with abortion. The language could not be simpler.

Let me read to the Members of the Senate and invite anybody to read it.
Nothing in this section shall be construed to permit the prosecution of any person with conduct relating to abortion for which consent of the pregnant woman or a person authorized by law to act on her behalf has been obtained or for which such consent is implied by law.

Two, of any person for medical treatment of the pregnant woman or her unborn child, or of any woman with respect to her unborn child.

It is very clear. My colleague argues that this language is going to somehow roll back abortion rights. That is a debate for another day. It is not a debate for today. That language in this bill is very clear.
If this language was a threat to abortion rights, then the language in 29 other States would have been a threat. We have 29 States that recognize fetal homicide law. The language in 16 of those States is virtually identical to the language in this bill.

If the language in this bill was a problem for abortion rights, then it would have been a problem with these other States.
Also, there are some States that have had this language on the books for 30 years, and it has not been a problem for abortion rights.
That is just a bogus issue. Let us stop talking about it, and let us talk about what the issues are.
Let me get back to the two points that I made before. I want everyone to understand the Feinstein amendment. One is not in debate, and one my colleague and I do debate. One I think is not in debate at all; that is, the Feinstein amendment does not recognize a second victim. It goes against good common sense.

Ask someone back in your home State, if a pregnant woman is assaulted and she loses her child, how many victims are there? There are two. If you ask the average person in your State-whether your State is Ohio, California, wherever it is-the average person on the street is going to say: Senator, there are two victims.

That is all we are saying with this bill. We are trying to close a loophole so that if a pregnant woman who is hiking in a national park or is out walking in a national park or a pregnant woman on an Air Force Base-we are not making these stories up. This happens. Pregnant women are attacked all the time. I saw it as a county prosecutor. You ask any county prosecutor-yes, any police officer, anybody who is a victims rights advocate-how often pregnant women are attacked, a pregnant woman who is in a national park, a pregnant woman who is on Federal property and is attacked.

What we are simply saying is that it is wrong if a national park or Federal property is in a State that does not have a similar law to this. It is wrong for that Federal prosecutor searching in vain the Federal statutes to find a law for which he can charge that person with the death of a fetus, a child-whatever word you want to use. It is wrong. That happens today. We are closing that loophole.

When this law passes, that won't happen anymore. A Federal prosecutor will be able to say, when law enforcement people come in and they have that case where a woman has been violently attacked, she has been injured but the child has been killed, they will be able to charge for death of that child. That is the right thing to do. They will be able to file two charges, recognize two victims, and recognize that reality. That is what this does.
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Let me state the second thing about the Feinstein amendment. Look at the amendment.
We have to go to the penalty section. This is 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.

Remember, this is a criminal law. I go back to my days as a prosecutor: You have to construe a law strictly. When it is a criminal law, you construe it in favor of the defendant. You give every benefit of the doubt to the defendant. If this is vague, there is a problem for the prosecutor. We have a problem with this one. A serious problem.

We have a letter from the Justice Department that says there is no penalty under the Feinstein amendment. Let's look at this carefully and see why: "Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as that punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman."

What injury or death? The problem under the Feinstein amendment is it does not recognize the baby or fetus. Who are we talking about? Read this section above. It talks about "termination of a pregnancy or the interruption of the normal course of pregnancy." It does not recognize two assaults, two injuries, two people. There is nothing for it to reference to. With all due respect, it is not drafted right. If we pass the Feinstein amendment, with all due respect, not only are you not recognizing a separate victim-which we all agree on-but, worse than that, there is no penalty for killing the unborn; there is no penalty for injury.

I have already pointed out, and we looked at the language, why there is no penalty at all for injury. That is clear when we look at this: "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," et cetera.

Clearly, that is no reference to the injury. What word here has to do with injury? Nothing. Clearly, this has nothing to do with injury. Any child who is injured, not killed, would not be covered. And in the paragraph below, there is no penalty at all.

If we get by that, which we cannot, but even if you get by all of that, you have the problem of the lesser included offense. We cannot get by that. But take one more problem, assuming you could get by that. There is another reason the Feinstein amendment fails to create a separate punishable offense to terminating pregnancy. All it does is recognize attacks on an unborn child under the label of "interruption or termination of pregnancy," then tacks that label on as an element to any one of the 68 Federal crimes specified. The result is a new series of offenses identical to the previous 68, except for the addition of that one element.

For example, now a criminal could face a Federal charge of assault with the result of termination of pregnancy as well as the original charge of assault. This is important. But because he could be charged with both does not mean he could be convicted and punished for both. Instead, he would be protected by a legal principle known to lawyers as lesser included offenses. That principle protects a defendant from being convicted in and punished for a whole series of crimes that are all a subset of a lesser crime.

We know, for example, the crime of manslaughter and murder. We know one defendant cannot be convicted of both charges for the death of only one victim. If someone is guilty of murder, then he or she must have been guilty of all the components of murder, including the components that made him guilty of manslaughter, but that person, of course, is not convicted of both. You cannot be convicted of both manslaughter and murder. If a man is convicted of a felony for stealing $10,000, he is not also found guilty of the misdemeanor of having stolen $500.

Of course, we can convict one criminal of the murder and manslaughter of two separate people because the laws of these crimes differ on one critical point: They have different victims. That is the difference between our bill and Senator Feinstein's amendment. Ours does not have that problem because we recognize two victims. Her amendment does not. Therefore, it is fatally flawed under this principle. Therein lies another problem.

The bottom line is the Feinstein amendment is fatally flawed. It has no penalty section, as well as not recognizing there is a separate and distinct victim.

The Justice Department analyzed and came to the same conclusion. Again, it is a vague amendment. They come at it a little differently, but here is what they say in a letter of March 24:

Additionally, by omitting any reference to the unborn child but retaining language contained in H.R. 1997 as introduced, the substitute appears to create an ambiguity that likely leaves an offense, could one be found, without a corresponding penalty. The substitute provides that punishment for an offense prescribed by the legislation is the same as the punishment provided under Federal law had the "injury or deaths occurred," to the pregnant woman.

In H.R. 1997, the object of the "injury or death" was the unborn child. However, in the substitute the injury or death provision has no object because the only victim under the substitute is the woman herself. Because there are currently no penalties in federal law for the offenses of "termination of a pregnancy," or "the interruption of the normal course of pregnancy," there would be no penalty even assuming that a successful prosecution could be brought.

They have analyzed it a little differently than I did, but they come to the identical conclusion for the same reason. Again, it goes back to this sentence in their letter, "However, in the substitute, the injury or death provision has no object because the only victim under the substitute is the woman herself."

That is the problem. That is what we have.

Members who come to the Senate and vote on this Feinstein amendment, which is the key vote, need to understand three things: One, abortion has nothing to do with this debate. We have covered that in the language of the bill. But more important is the precedent in the States has already been set. States have bills like this. They have not interrupted people's rights under the Supreme Court in regard to Roe v. Wade and all the other court decisions. It has not interrupted rights having to do with abortion. It has nothing to do with abortion. That is No. 1.

No. 2, the Feinstein amendment fails to recognize what everybody in this country knows: When a woman is attacked, there are two victims.

And No. 3, the thing to remember is the Feinstein amendment carries no penalty. So we will be saying if the Feinstein amendment is passed, we are turning our backs on these victims. We are turning our backs on the unborn, these kids who are, in fact, injured or killed.

I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. TALENT. Madam President, I very much appreciate the Senator yielding and also the courtesy of the Senator from South Carolina who, I know, was expecting to go next. For that reason, I am going to be very brief.

I want to say a few words about what I understand us to be doing today and the importance of it. As I understand it, what we are doing today is conforming Federal law to the common understanding of people around the country, and certainly in the heartland where Missouri is and, indeed, the practice of most of the States.

If a man takes a woman across State lines-let's say she is his girlfriend, and she has gotten pregnant, and he does not like that fact-and he assaults her, hits her in the stomach or something, with the intention of getting rid of the baby, and his act of violence has the intended effect and the baby dies, what we are saying is he has claimed two victims. He has hurt mom, or maybe done worse to her, and he has killed the baby, which is what his intention was to do.
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I think all of us recognize the seriousness of that kind of offense and acknowledge that an offense like that against a pregnant woman, and directed at the baby, is more serious because of the status of pregnancy and because of the existence of that child than it would otherwise be.

So far I think we are agreed. My friend, the Senator from California, wants to call that second offense the "interruption" of a pregnancy rather than the claiming of the life of a child.

I appeal to the Senate, and to the country, through the Chair, and ask what our understanding is, what our instinctual reaction is to that kind of a crime.

When a woman loses a child in that kind of instance, she has not lost a pregnancy, she has lost a child.
Earlier in our marriage, my wife had several miscarriages. She did not think of it as losing a pregnancy. She lost children. That is why people have memorial services sometimes-often-in cases like that. That is why they go through a grieving process. That is why they may get counseling.

I do not see why, with the greatest respect to the substitute amendment and to the Senator from California, why we cannot conform Federal law to that common understanding. I think we should.

I understand the sensitivity on the issue of abortion. I really do. I think the Senator from Ohio and the Senator from South Carolina have tried to structure this bill to avoid those sensitivities. It is hard to do.

But just because-for overriding reasons of public policy that some here adhere to very strongly-we cannot recognize the status of this child when mom, for reasons that she thinks are justified, believes she must end the pregnancy, it seems to me, it does not mean we cannot accord the child the dignity of the status of a human being when the child has been the victim of a vicious act of violence against both mom and the child.

I thank my friend again for allowing me to intervene for a moment. I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. Madam President, I thank the Senator for yielding. I may take a few minutes, I say to the Senator from Kansas, to explain my relationship to this bill and why I am here today.
No. 1, I want to thank the leadership for allowing the bill to come to the floor. Senator Frist and Senator McConnell and our leadership team has worked hard with Senator Daschle to get an agreement so we could come to the floor and debate what I think is an important issue, and to allow Senator Feinstein to have her say about how we should craft this bill.

In July 1999, this bill was first introduced in the House. I was the author of the bill. Before I came to Congress, I spent some time in the Air Force. Senator DeWine has taken the cause up in the Senate since it was first introduced. I really appreciate all that Mike has done. He has been very sympathetic to what we are trying to do. He was leading the charge in the Senate as this bill was being debated and voted on in the House.

But prior to getting into politics, from 1982 to 1988, I served as a prosecutor and a defense attorney in the U.S. Air Force domestically and overseas. During that experience, I realized at the Federal level there was a gap in law.
We had a case involving a pregnant woman who was beaten up, and her child was lost, and she was almost killed. I looked into the idea of charging the offender with the damage done to the unborn child, and under the Uniform Code of Military Justice there was no way to do that. So I was sensitive to it from a prosecutor's point of view early on in my legal career.

When I got to Congress, there was an effort in some States to create unborn victims statutes, and I associated myself with that effort federally. A lot of pro-life people came over and were very supportive of what we are doing. That is true. Pro-life people generally like the idea of protecting unborn children whenever they can.

Pro-choice people are very sensitive to the fact that a woman should decide what to do with her body in an intimate situation like a pregnancy. I understand that debate clearly.

I am a pro-life person, so I have biased there. But having said that, there are pro-life people who hate this bill. It surprised me, but it is true, because in the bill, we wrote it in a way that abortion is not covered at all. As a matter of fact, we preserve, under the current law-under this bill-the right to have a legal abortion, and you cannot prosecute the mother under any circumstances.

There are cases out there where mothers are being prosecuted who abuse drugs and alcohol and do damage to their children. What I wanted to do was to focus on what I thought we all could agree on, to a large extent. The law in abortion and the politics of abortion really do not play well here because we are talking about criminal activity of a third party. I do not know why you would want to give a criminal any more breaks than you had to if they go around beating on pregnant women.

And people say: Well, don't they have to know if the woman is pregnant? No. Why? The law is really common sense. If you attack a woman of childbearing years, you do so at your own peril. If you push somebody, you do not know if they have a severe medical condition. You are liable for the consequences of your actions.
There are plenty of cases that say, if you attack a woman of childbearing years, you do not have to have actual knowledge. You are responsible for the consequences of your illegal act.

In a poll, when people were asked, if a violent, physical attack on a pregnant woman leads to the death of her unborn child, do you think prosecutors should be able to charge the attacker with murder for killing the fetus, 79 percent said yes; 69 percent of pro-choice people, in that poll, said yes.

Why would a pro-choice person support this legislation? It passed three times in the House. The first time we had it up for a vote was September 30, 1999, I believe. Madam President, 254 folks voted for the bill in the House, as I recall. I assure everyone listening to my voice today, there are not 254 pro-life people in the House. Madam President, 52 Democrats have voted for this bill.

The parties tend to split on the issue of abortion, with the Democratic Party being more pro-choice and the Republican Party being more pro-life. But we had Democratic support, and we had pro-choice people supporting this idea that when it comes to criminal activity, we are going to define the unborn in terms that make it hard on the criminal-not hard on the mother.

You can never prosecute a woman for anything she does to her child, no matter how much you would like to, under this bill. I did not want to get into that debate. You can never ever prosecute anybody for receiving medical treatment related to their pregnancy or lawful abortion.

For over 30 years, in the State of California, two things have coexisted: the Roe v. Wade rights of a woman and a statute that will allow you to do what is happening in California today-prosecute a person for doing damage to the mother and the unborn child, such as the Laci Peterson case.

This has been a long journey. This July will be the fifth anniversary of the time that I introduced this bill. Back in 1999, I remember saying on the floor of the House there will be a case where a pregnant woman is brutalized and she loses her child and it will be front-page news.

The reason I said that then is, having been a prosecutor and a defense attorney, I understand the following: There are a lot of good people in this world, but there are some mean people, too. This happens more than you would ever want to believe. The No. 1 cause of death among pregnant women in the District of Columbia is murder. As much as we would like to believe otherwise, pregnant women have things come their way because of their pregnancy that shocks the conscience.

In Arkansas, there are three people sitting on death row today because they were hired by the boyfriend, who didn't want to pay child support, to kidnap his girlfriend, who wanted to have the child, took her off to a remote area and beat her within an inch of her life with the express purpose of killing the child. And when she was on the floor, she begged for two things: Her own life and her baby's life. Those people under Arkansas law were charged with two crimes, making them eligible for the death penalty. They deserve to be.
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Under this bill, you cannot get the death penalty. The reason I chose not to include the death penalty is, I did not want to get into the death penalty debate because people of goodwill and good reasoning may disagree with the State imposing that punishment. The Senator from California cares as much about pregnant women as anybody here. This is not about who cares about women and who is trying to do this or that. Her amendment may not be written the way she would like. I would oppose it, if it was changed.

It happens in America more times than you would ever believe that pregnant women are the victim of violent assault and their children get killed or severely injured.

That concept can and does exist with the idea that a woman, early on in the pregnancy, can choose whether to carry that child. These are two concepts the law recognizes that exist side by side.

Why do 84 percent of the people believe a criminal should be prosecuted twice, not once? Because it really does violate common decency. If a woman chooses to have a baby and she loses her baby because of a violent act, most of us, a large percentage of us, want to whack the person who did it as hard as we can. And we don't want to get into the debate about abortion. We want to make sure the prosecutor has the tools to bring about the most severe and just verdict possible.

This bill excludes abortion. It excludes the death penalty for political reasons and legal reasons. Pro-life people have criticized me because in this bill, in their opinion, I am legalizing abortion. This bill doesn't legalize abortion. This bill doesn't ban abortion. This bill says: If you are a criminal and you attack a pregnant woman and you hurt her kid, you will get the full force of the law.

What is going on in California? In 1999, when I said there will be a woman out there who suffers brutally and loses her child and we will all know about it because it will be front page news, I never dreamed it would happen so quickly. I never dreamed it would be so vicious. The authorities investigating the Laci Peterson crime have two pieces of evidence to offer the jury: The decomposed body of the mother and the decomposed unborn child late in the pregnancy. It is important the jury know about both. It is important the criminal be held accountable for both. We will debate abortion another day.

Sixteen States define life under the same legal terms I chose when we wrote this bill. That is as to the criminal world, if the pregnancy comes to an end and the unborn child's right to develop comes to an end because of third-party criminal activity, we are going to hold you legally responsible at the earliest onset of pregnancy. The Roe v. Wade standard makes no sense. Why give a criminal a benefit of the legitimate debate of abortion?

Thirteen States define it in stages. California, I think by law, defines the unborn victim statute at the sixth week of pregnancy. Some States, one or two, have the term "viability." There is a sliding scale. But the dominant way to define this in State law is the way we have chosen to define it in this bill. This chart illustrates how the States break out.

There is another situation I would ask you to think about. Let's say there is a woman on death row. She is pregnant for whatever reason. How many people would let the execution go forward knowing the woman is pregnant? Think about that. What good would it do to allow the execution to go forward if you knew the woman was pregnant? Would you wait?

Here is what I suggest to you, if any State or the Federal Government decided to impose the death penalty on a woman who was pregnant during any stage of the pregnancy, there would be a riot in the street-among pro-choice people, too, because what good would it do at any stage of the pregnancy to have the State kill the kid? You are not enhancing Roe v. Wade. You are not advancing the abortion debate. You are doing something you don't need to do.

The definition that was used in the Innocent Child Protection Act of 2000, which I was involved in drafting, is the same definition that is in this bill about the unborn child. It passed 417 to nothing. To me, that makes perfect sense. Four hundred seventeen pro-life people do not exist in the House of Representatives. But when faced with the question, should the State wait if a woman is pregnant, even at the earliest stages of pregnancy, 417 people said yes.

The reason I mention this to you is, when it comes time to prosecute people who unlawfully attack a woman at the earliest stage of pregnancy, why should they get a pass? What good have you done? It does not change the abortion debate. Roe v. Wade rights still exist. All you have done is allow someone to interrupt another person's life, take something of value, and they get a pass because you are mixing concepts that don't need to be mixed. That is why over 50 pro-choice people voted for this bill in the House.

That is why if we ever get to final passage, we are going to have a bipartisan coming together of pro-life and pro-choice people to say one thing loud and clear: If you attack a woman of childbearing years where Federal law applies, you do so at your peril, and you are going to suffer the full consequences of your action. And the full consequences of that action could be the loss of the child and the loss of the mother or a combination thereof.

Why not sentence enhancement? I think there is a reason under the law that no State has gone down this road. Sentence enhancement would say the following: You get a stiffer penalty if the woman is pregnant, but you don't talk about the consequences in terms of the victim's life. That is an artificial distinction that I think denies justice.

This was a statement by Kent Willis, executive director of ACLU, and I disagree with this statement:
That baby was not a murder victim.
He was talking about the Laci Peterson case, the son Connor. I think Connor was a murder victim. The point I guess I am trying to make is that when people talk about what happens to them, the law, wherever it can, should address the full range of what really happened to them.

There is another case you don't know about because it didn't get nearly the publicity, but it is just as real. It is a good example of why we need this statute.

Michael Lenz and his wife were expecting their first child. She worked in the Federal Building in Oklahoma City. She was in the midstages of her pregnancy. She went to work early the day of the bombing to show an ultrasound to her colleagues of their baby. That was going on at the moment the bomb goes off. She was killed. Michael Lenz III was killed. They had already named their little baby boy.

The father came before my committee when I was in the House to testify for this bill. He said: I am no expert on abortion, but here is what happened to my family. My wife was killed, and at the same moment I lost my son, Michael Lenz III.

The reason they lost their son is not because of Roe v. Wade rights; it was because of a third party crazy man, a criminal, who destroyed many lives that day. When you look at the victims of the Oklahoma City bombing case, when it came time in Federal court, you don't find a place for Michael Lenz III. If this bill had been law, there would have been 22 people, not 21 people, that would have been before the court. I cannot say it any better than that.

In terms of Michael Lenz and all the other victims who testified in support of this legislation, sentence enhancement doesn't speak to what happened to them. From a prosecutor's point of view, it makes all the difference in the world to have two charges facing the accused versus one. It gives you more leverage than you could ever dream of. Ladies and gentlemen, in cases like this, it is the right thing to do.

I yield the floor.

Mr. SANTORUM. Madam President, I thank the Senator from Ohio. If Senator Feinstein's speaker arrives, I will be happy to abbreviate my remarks to accommodate the other side of the aisle.

I wanted to congratulate Senator DeWine and Senator Graham, who have really worked hard not just on this legislation, but getting this legislation to a point where we can have an up-or-down vote, have a vote on the amendments, and let the Senate work its will. That is one of the things we have not seen done in recent weeks. We have had an opportunity here on a very important issue to have the Senate's will be done. I also congratulate Senator Frist and Senator McConnell and the Democratic leaders for allowing us to debate this issue. This is an important debate.
I think Senator Graham, who I had the privilege of listening to for a few moments, summarized it very well. The issue is, how many victims are there? Do we recognize the loss of a child in the womb, a child who is anticipated, is wanted, and whose life is very real to the mother and father and the family? When that life is taken away by a third party, do we recognize that child's existence in the law?

I don't think anyone would doubt that when a woman who has a child in the womb is attacked and injury comes to that child, another person is affected. If the child dies, that child is affected. There is something that goes on to another human being. The issue here is whether we are going to recognize that in the law. I agree with the Senator from South Carolina that it has nothing to do with abortion. It is specifically excluded from this legislation. So why do all of the abortion rights activists have a problem with this legislation?

It comes down to the very issue, do we recognize the humanity of a child in womb? How far would we go to protect this right to an abortion? Do we go so far as to even deny the existence of a child who is not subject to abortion? How far do we go to protect this right, the supreme right above all, the right to an abortion, a right that can have no restriction on it? In fact, it cannot even have a restriction that is not at all applicable to it. So, in other words, we cannot even talk about this, or some way, through some logic, attack the issue. We have to deny under every circumstance that the child in the womb is a human life. That is what this is about.

This is all about denying the humanity of the child. We just cannot contemplate that in our laws. We cannot have any admission anywhere in law that says what is inside the woman's womb is a child-when, of course, we all know that is exactly what it is. But we cannot express that legally. If we do, somehow or another, this right to abortion may be threatened down the road. Who cares about what harm we may bring? Who cares about what harm we may bring to a mother whose child is injured or what harm we may bring to the family who may lose or have an injury to a child in womb? Who cares that we cannot bring somebody who has done violence to a child in the womb to justice? All of those things are worth ignoring to protect this right that is not even at stake today.

This issue, as I have said many times, is a cancer. I thought at first it was a cancer that ate away at us in how we view the relationship between the mother and the child, but it is worse. It is a cancer that reaches in and infects even areas that have nothing to do with abortion.

We need to let common sense reign in the Senate today. The common sense is, this is a child who is loved and wanted by the mother. This is a child who, in many cases, has been given a name, such as Conner Peterson, and this is a child who deserves the dignity of recognition by our society.

Mr. HATCH. Madam President, I appreciate my colleague from California permitting me to go before her.
I rise today to urge my colleagues to vote in favor of the Unborn Victims of Violence Act. The importance of this issue has been made tragically clear by the grisly murders of Laci Peterson and her unborn son Conner. I met with her mother again yesterday and was very impressed with her and how she is handling this situation.

This bill will ensure Federal law appropriately protects unborn children from assault and murder. It has passed the House of Representatives by a strong bipartisan vote of 254 to 163. I believe the Senate should give similar overwhelming approval.

Before I begin the substance of my remarks, I commend Senators DeWine and Lindsey Graham for their longstanding and essential leadership on this most important issue and for drafting the legislation that is before us today. This issue has already been addressed in many States across the country. In fact, in my home State of Utah, if a criminal assaults or kills a woman who is pregnant and thereby causes death or injury to the unborn child, the criminal faces the possibility of being prosecuted for having taken or injured that unborn life. Twenty-eight additional States have similar laws on the books. Sixteen of those States recognize the unborn child as a victim throughout the entire period of prenatal development. This is only proper and, it seems to me, only just.

However, there is a gap in the law under existing Federal criminal statutes. Current Federal law provides for no additional criminal penalty when a criminal assaults or kills a woman who is pregnant and thereby causes death or injury to that unborn child. It is time Congress eliminates this unjustified gap in the law.

This bill bridges this existing gap, and it does so in a way that protects the rights of the States. It creates a separate Federal offense to kill or injure an unborn child during the commission of certain already defined Federal crimes committed against the unborn child's mother.

Importantly, because this bill only applies to Federal crimes, it does not usurp jurisdiction over State law. If someone commits a crime that violates State law, but does not violate any Federal law, then State law will prevail, regardless of whether that State has laws that protect unborn victims of violence.

I cannot imagine why anyone would oppose this bill.
Some have mistakenly characterized this bill as anti-abortion. It is not, and I am not saying that because I am pro-life.
Let me take this opportunity to clarify a remark I made on May 7 of last year. I am quoted as saying the bill undermines abortion rights, but that this effect is irrelevant. The point I was trying to make, and I guess I did not make it well and it has been quoted out of context many times, is there is no conflict between the bill language and Roe v. Wade. Some are prepared to bring the abortion issue into anything, any time, for any reason, even when it does not fit, such as in this case.

I do not believe this bill in any way undermines abortion rights. It certainly does not.

The bill explicitly says the Federal Government cannot prosecute a pregnant woman for having an abortion. In fact, the bill goes even further. The bill does not permit prosecution against any woman with respect to her unborn child regardless of whether the mother acted legally or illegally. If a woman chooses not to have her baby, the bill says she can have an abortion without Federal prosecution. That is how far the authors of this bill have gone. But importantly, for those women who have chosen to keep their baby, this bill says no coldblooded murderer can take that choice away from her by killing her baby and going unpunished.

Those who oppose this bill are, in effect, saying the murderer, not the mother, has the choice to take the baby away from his or her mother against the mother's will and against the individual's will. Since the murderer will not be punished for this terrible offense, it exonerates his or her actions. That is simply not right.
[Page S3137]

I understand my dear friend Senator Feinstein says this bill somehow threatens stem cell research. It does no such thing. I have been a supporter of embryonic stem cell research, and everyone in this body knows it and I guess most scientists throughout the world know that. I have been proud to stand shoulder to shoulder with Senator Feinstein, Senator Specter, Senator Kennedy, and Senator Harkin on stem cell research. I believe we are right on that issue. But this bill in no way impedes stem cell research. This bill is about stopping and punishing heinous crimes.

Why would I support Laci and Conner's law if it jeopardized that research? The words "stem cell research" are nowhere in the bill. This is a criminal law, not an abortion law.

As I have said on many occasions, it is my view life begins in a mother's womb. What this bill does is penalize those who act to viciously end that life in the womb or any life in the womb.

Senator Feinstein, the distinguished Senator from California, suggested this bill somehow may result in assigning legal status to the term "embryo." But I cannot find the term "embryo" anywhere in the bill. Nor for that matter can I find the term "embryo" in the amendment put forth by the distinguished Senator from California, Mrs. Feinstein.

In short, this bill does not affect abortion, embryos, or, for that matter, stem cell research. There is no legislative intent here to prosecute researchers working on stem cell research-none whatsoever.

I have the utmost respect for my dear friend from California, and she knows that. We have worked together on many issues during her 12 years on the Judiciary Committee. I admire her and appreciate working with her on so many of these issues. I admire her judicious way in fighting for the issues in which she believes, even when we disagree. If her bill truly considered the same crime, I would give strong consideration to supporting it. But it does not. It tries to do it, but it does not.

Continued in Part III

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