The Magazine

Worth Protecting

Mar 1, 2004, Vol. 9, No. 24 • By FRED BARNES, FOR THE EDITORS
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THE TAWDRY Laci Peterson murder case has a significant twist. Scott Peterson is charged with two homicides--for killing both his wife Laci and his unborn son Conner. Under California law ("murder is the unlawful killing of a human being, or a fetus, with malice aforethought"), an unborn child is a person with legal status. Twenty-seven other states have similar fetal homicide laws. But there is no federal law on the subject. So if the two Peterson victims had been killed on, say, a military base, Scott Peterson could only have been charged with murdering his wife.

The House of Representatives is slated to vote on the proposed Unborn Victims of Violence Act this week. The measure, sponsored by Rep. Melissa Hart (R-Pa.), would allow federal prosecutors to file criminal charges in cases of violence against a "child in utero." Passage is certain in the House, where the bill was approved in 1999 and 2001. The Senate has never taken up fetal homicide, and a vote there is likely to be close. President Bush has pledged to sign the measure.

As usual, pro-abortion groups have responded hysterically, though the bill doesn't deal with abortion. They are obsessed with 18 words defining an unborn child as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." The American Civil Liberties Union has labeled the bill "a dangerous attempt to separate a woman from her fetus in the eyes of the law." Worse, it would elevate the status of a fetus and erode "the very foundation of the right to choose abortion."

This is nonsense. Professor Walter Dellinger of Duke University Law School, an ally of the pro-abortion movement and a former adviser to President Clinton, has said the measure would not jeopardize Roe v. Wade. Legislatures can "decide fetuses are worthy of protection" without granting them "freestanding constitutional rights," he told the Raleigh News & Observer. In 1994, the California state supreme court upheld the law under which Scott Peterson is charged with killing his son, rejecting the claim it infringed on Roe v. Wade. Similar challenges to fetal homicide laws in other states have been tossed out by the courts. And the U.S. Supreme Court in 1989 said states could invoke laws that recognize unborn children if they didn't also restrict legalized abortion.

The pro-abortion crowd has a fallback position: guilt by association. Since National Right to Life is promoting the Unborn Victims of Violence Act, that must mean the bill is a backdoor attempt to overturn Roe v. Wade. But unborn children who suffer violent death are not deprived of their right to life by abortion. Thus, Douglas Johnson of NRL notes it shouldn't be surprising "that the right to life movement would want to deter such deprivations or bring justice when they occur." Besides, NRL is involved in non-abortion issues, opposing human cloning and doctor-assisted suicide.

To block a federal fetal homicide law, the pro-abortion forces have come up with a substitute. It would enshrine in law the idea that when a pregnant woman and her child are both victims of violence, there is only one victim, the mother. However, the perpetrator of violence could be punished harshly for, as the ACLU puts it, "the particularly devastating loss or injury to the woman when her pregnancy is compromised." This pretends that harm to an unborn child is nothing more than a loss to the mother. This "one-victim" substitute was defeated in the House in 2001 by a 229-to-196 vote.

The issue has crept into the presidential race. The president and John Kerry differ. Kerry's rationale for opposing a two-victim bill is that "the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy." Kerry's letter to constituents on the issue doesn't mention contrary legal opinion and court rulings. But it has prompted a response from Laci Peterson's mother, Sharon Rocha. She wrote Kerry that a single-victim law would say that Conner Peterson "never really existed at all. But our grandson did live. He had a name, he was loved, and his life was violently taken from him before he ever saw the sun."

In one sense, though, advocates of legalized abortion are right about the Unborn Victims of Violence Act. It would affect the abortion issue--by influencing the national debate. How? By putting the focus on the unborn child as well as the mother. Of course, the Unborn Victims of Violence Act should be passed on its own merits. But by riveting public attention on the baby, it also serves a larger moral cause.

--Fred Barnes, for the Editors