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106th Congress                                            Rept. 106-332
  1st Session           HOUSE OF REPRESENTATIVES             Part 1    

======================================================================



 
                 UNBORN VICTIMS OF VIOLENCE ACT OF 1999

                                _______


               September 24, 1999.--Ordered to be printed

                                _______
                                

 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2436]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2436) amending title 18, United States Code, and the 
Uniform Code of Military Justice to protect unborn children 
from assault and murder, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           3
Background and Need for the Legislation....................           4
Hearings...................................................          19
Committee Consideration....................................          19
Votes of the Committee.....................................          19
Committee Oversight Findings...............................          22
Committee on Government Reform Findings....................          23
New Budget Authority and Tax Expenditures..................          23
Congressional Budget Office Cost Estimate..................          23
Constitutional Authority Statement.........................          24
Section-by-Section Analysis and Discussion.................          24
Agency Views...............................................          25
Changes in Existing Law Made by the Bill, as Reported......          28
Dissenting Views...........................................          31

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Unborn Victims of Violence Act of 
1999''.

SEC. 2. PROTECTION OF UNBORN CHILDREN.

    (a) In General.--Title 18, United States Code, is amended by 
inserting after chapter 90 the following:

              ``CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

``Sec.
``1841. Protection of unborn children.

``Sec. 1841. Protection of unborn children

    ``(a)(1) Whoever engages in conduct that violates any of the 
provisions of law listed in subsection (b) and thereby causes the death 
of, or bodily injury (as defined in section 1365) to, a child, who is 
in utero at the time the conduct takes place, 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 under Federal law for that conduct had that injury or death 
occurred to the unborn child's mother.
    ``(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 death of, or 
        bodily injury to, the unborn child.
    ``(C) If the person engaging in the conduct thereby intentionally 
kills or attempts to kill the unborn child, that person shall be 
punished as provided under sections 1111, 1112, and 1113 of this title 
for intentionally killing or attempting to kill a human being.
    ``(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), (f), (h)(1), and (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), (a)(2)(B), and 
        (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).
    ``(c) Nothing in this section shall be construed to permit the 
prosecution--
            ``(1) of any person 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) of any person for any medical treatment of the 
        pregnant woman or her unborn child; or
            ``(3) of any woman with respect to her unborn child.
    ``(d) As used in this section, the term `unborn child' means a 
child in utero, and the term `child in utero' or `child, who is in 
utero' means a member of the species homo sapiens, at any stage of 
development, who is carried in the womb.''.
    (b) Clerical Amendment.--The table of chapters for part I of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 90 the following new item:

``90A. Protection of unborn children........................    1841''.

SEC. 3. MILITARY JUSTICE SYSTEM.

    (a) Protection of Unborn Children.--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 new 
section:

``Sec. 919a. Art. 119a. Protection of unborn children

    ``(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 death of, or bodily injury (as defined in section 
1365 of title 18) to, a child, who is in utero at the time the conduct 
takes place, is guilty of a separate offense under this section.
    ``(2) The punishment for that separate offense is the same as the 
punishment provided for that conduct under this chapter had the injury 
or death occurred to the unborn child's mother, except that the death 
penalty shall not be imposed.
    ``(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 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
    ``(c) 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 her unborn child; or
            ``(3) of any woman with respect to her unborn child.
    ``(d) In this section, the term `unborn child' means a child in 
utero.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such subchapter is amended by inserting after the item relating to 
section 919 the following new item:

``919a. 119a. Protection of unborn children.''.

                          Purpose and Summary

    Under current Federal law, an individual who commits a 
Federal crime of violence against a pregnant woman receives no 
additional punishment for killing or injuring the woman's 
unborn child during the commission of the crime. Therefore, 
except in those States that recognize unborn children as 
victims of such crimes, injuring or killing an unborn child 
during the commission of a violent crime has no legal 
consequence whatsoever.\1\
---------------------------------------------------------------------------
    \1\ Eleven States currently have laws that recognize the unborn as 
victims throughout the period of prenatal development. Another thirteen 
States have laws that recognize the unborn as victims during only part 
of their prenatal development, and seven other States criminalize 
certain conduct that ``terminates a pregnancy'' or causes a 
miscarriage.
---------------------------------------------------------------------------
    H.R. 2436, The Unborn Victims of Violence Act of 1999, was 
designed to narrow this gap in the law by providing that an 
individual who injures or kills an unborn child during the 
commission of certain Federal crimes of violence will be guilty 
of a separate offense. The punishment for that separate offense 
is the same as the punishment provided under Federal law had 
the same injury or death resulted to the pregnant woman. If the 
perpetrator commits the predicate offense with the intent to 
kill the unborn child, the punishment for that offense is the 
same as the punishment provided under Federal law for 
intentionally killing or attempting to kill a human being.
    By its own terms, H.R. 2436 does not apply to ``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.'' The bill also does not permit 
prosecution ``of any person for any medical treatment of the 
pregnant woman or her unborn child,'' or ``of any woman with 
respect to her unborn child.''

                Background and Need for the Legislation

                         I. Current Federal Law

A. The Obsolete ``Born Alive'' Rule
    Federal law does not currently permit prosecution of 
violent criminals for killing or injuring unborn children. 
Instead, Federal criminal statutes incorporate the common law 
``born alive'' rule, which provides that a criminal may be 
prosecuted for killing an unborn child only if the child was 
born alive after the assault and later died as a result of the 
fetal injuries.\2\
---------------------------------------------------------------------------
    \2\ See United States v. Spencer, 839 F.2d 1341 (9th Cir. 1988).
---------------------------------------------------------------------------
    The born alive rule has been rendered obsolete by progress 
in science and medicine, however. As one commentator explains, 
``the historical basis of the born alive rule was developed out 
of a lack of sophisticated medical knowledge.'' \3\ Because 
pregnancy was difficult to determine, the common law recognized 
that live birth was the most reliable means of ensuring that a 
woman was with child and that the child was in fact a living 
being.\4\
---------------------------------------------------------------------------
    \3\ Cari L. Leventhal, Comment, The Crimes Against the Unborn Child 
Act: Recognizing Potential Human Life in Pennsylvania Criminal Law, 103 
Dick. L. Rev. 173, 175 (1998).
    \4\ Id. at 175-76. See also State v. Trudell, 755 P.2d 511, 513 
(Kan. 1988) (same); Clarke D. Forsythe, Homicide of the Unborn Child: 
The Born Alive Rule and Other legal Anachronisms, 21 Val. U. L. Rev. 
563, 567-80 (1987) (same).
---------------------------------------------------------------------------
    The use of ultrasound, fetal heart monitoring, in vitro 
fertilization, and fetoscopy has greatly enhanced our 
understanding of the development of unborn children.\5\ 
Pursuant to this enhanced knowledge, courts today recognize, 
for example, a cause of action for wrongful death where an 
unborn child has been killed,\6\ as well as a mother's right to 
compensation from the father for prenatal care in domestic 
relations cases, even where the child is not yet born.\7\ Even 
the United States Supreme Court in Roe v. Wade acknowledged the 
inheritance and other property rights that unborn children 
enjoy in modern law.\8\
---------------------------------------------------------------------------
    \5\ See Mary E. Barrazoto, Note, Judicial Recognition of Feticide: 
Usurping the Power of the Legislature?, 24 J. Fam. L. 43, 45 (1986).
    \6\ See Fowler v. Woodward, 138 S.E.2d 42 (S.C. 1964).
    \7\ See Tex. Fam. Code Ann. Sec. 160.005.
    \8\ See Roe v. Wade, 410 U.S. 113, 162 (1973).
---------------------------------------------------------------------------
    Because of these developments, the current trend in 
American law is to abolish the born alive rule.\9\ In many 
States, this abolition is manifest in the enactment of 
legislation making it a crime to kill an unborn child.\10\ Such 
legislation further reflects the growing trend in American 
jurisdictions of recognizing greater legal protections for 
unborn children, a trend consistent with the advancements in 
medical knowledge and technology.\11\
---------------------------------------------------------------------------
    \9\ See Leventhal, supra note 3, at 176.
    \10\ See, e.g., Ariz. Rev. Stat. Sec. 13-1103(A)(5); Ark. Code Ann. 
Sec. 5-10-101; Fla. Stat. Ann. Sec. 782.09; Ill. Comp. Stat. Ch. 720, 
Sec. Sec. 5/9-1.2, 5/9-2.1, 5/0-3.2; La. Rev. Stat. Ann. 
Sec. Sec. 14:32.5-14.32.8; Mich. Stat. Ann. Sec. 28.555; Minn. Stat. 
Ann. Sec. Sec. 609.2661-609 - 609.2665; Minn. Stat. Ann. 
Sec. Sec. 609.267 - 609.2672; Miss. Code Ann. Sec. 97-3-37; Mo. Stat. 
Ann. Sec. Sec. 1.205, 565.024, 565.020; Nev. Rev. Stat. Sec. 200.210; 
N.D. Cent. Code Sec. Sec. 12.1- 17.1-02 to 12.1-17.1-04; N.D. Cent. 
Code Sec. Sec. 12.1-17.1-05, 12.1-17.1-06; 18 Pa.C.S.A. Sec. Sec. 2601-
2609; Okla. Stat. Ann. Tit. 21 Sec. 713; R.I. Gen. Laws Sec. 11-22-5; 
S.D. Codified Laws Ann. Sec. Sec. 22-16-1, 22-16-1.1, 22-16-20; Utah 
Code Ann. Sec. 76-5-201; Wash. Rev. Code Ann. Sec. 9A.32.060; Wisc. 
Stat. Ann. Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 
940.06, 940.08, 940.09, 940.10. Two States have held that killing an 
unborn child is a crime even at common law, thus dispensing with the 
need for legislation. See Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 
1984); State v. Horn, 319 S.E.2d 703 (S.C. 1984).
    \11\ See People v. Hall, 557 N.Y.S.2d 879 (N.Y. App. Div. 1990) 
(relying on advancements in medical technology to determine that a 28-
week-old fetus removed from its mother's womb by Caesarian section and 
immediately placed on a ventilator was a ``person'' under New York 
Penal Law). See also Annissa R. Obasi, Protecting Our Vital Organs: The 
Case for Fetal Homicide Laws in Texas, 4 Tex. Wesleyan L. Rev. 207, 216 
(1998) (explaining that advancements in medical science have influenced 
the development of fetal rights); Stephanie Ritrivi McCavitt, Note, The 
``Born Alive'' Rule: A Proposed Change to the New York Law Based on 
Modern Medical Technology, 36 N.Y.L. Sch. L. Rev. 609, 618 (1991) 
(arguing that courts should be willing to use technological 
advancements to determine whether unborn children are ``persons'' for 
homicide purposes).
---------------------------------------------------------------------------
    H.R. 2436 thus follows modern legal theory and practice by 
dismantling the common law born alive rule at the Federal 
level. The legislation ensures that Federal prosecutors are 
able to punish those who injure or kill unborn children during 
the commission of violent Federal crimes, whether or not the 
child is fortunate enough to survive the attack and be born 
alive.
B. Federal Sentencing Guidelines Are Inadequate
    Opponents of H.R. 2436 have argued that the Act is 
unnecessary because current Federal sentencing guidelines 
provide enhanced punishment for violent criminals who injure or 
kill unborn children during the commission of their crimes. 
Ronald Weich, Esquire, testified to that effect before the 
Subcommittee on the Constitution.\12\ This is simply not true.
---------------------------------------------------------------------------
    \12\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 21, 1999 (statement of Ronald Weich, 
Esq.).
---------------------------------------------------------------------------
    The truth is that not one of the cases cited by Mr. Weich 
in his testimony held that Federal sentencing guidelines 
currently authorize enhanced punishment solely because the 
victim was pregnant or because an unborn child was injured or 
killed during the commission of a violent crime. In two of the 
cases cited by Mr. Weich, the defendants received sentence 
enhancements under Sec. 2B3.1(b)(3)(A) of the United States 
Sentencing Guidelines because the defendants caused ``bodily 
injury'' to the victims of robberies, not because the victims 
were pregnant or because their unborn children were injured or 
killed.\13\ In a third case, United States v. Manuel,\14\ the 
court upheld a sentence enhancement not because the victim of 
the crime was pregnant but because of the defendant's criminal 
history, which included two assaults on his wife, on one 
occasion when she had been pregnant.\15\
---------------------------------------------------------------------------
    \13\ See United States v. Winzer, No. 97-50239, 1998 WL 823235, at 
*1 (9th Cir. Nov. 16, 1998) (upholding bodily injury sentence 
enhancement because victim ``was knocked to the ground'' and 
``experienced soreness to her right shoulder and neck and suffered a 
discharge of blood''); United States v. Peoples, No. 96-10231, 1997 WL 
599363, at *1 (9th Cir. Sept. 22, 1997) (upholding bodily injury 
enhancement because ``the victim, an eight-month pregnant woman forced 
to lie face down on the floor, suffered injuries and sought medical 
attention after being struck in the back by a twenty-five pound loot 
bag'').
    \14\ No. 91-30232, 1993 WL 210680 (9th Cir. June 15, 1993).
    \15\ See id. at *2.
---------------------------------------------------------------------------
    Nor did the court hold in United States v. James,\16\ as 
Mr. Weich contended, that a pregnant woman may be treated as a 
``vulnerable victim'' under Sec. 3A1.1 of the United States 
Sentencing Guidelines, which provides a sentence enhancement if 
the defendant knew or should have known the victim was 
``vulnerable'' because of ``age, physical or mental 
condition.'' In that case the court of appeals upheld a 
vulnerable victim sentence enhancement for a bank robber 
because he made the following statement to a pregnant bank 
teller during the commission of the robbery: `` `Don't give me 
any of the trackers, alarms or magnets or I'll kill you. I 
notice that you are pregnant and I love children, but I will 
come back and kill you and the baby.' '' \17\ The court noted 
that the defendant's sentence was properly enhanced under 
Sec. 3A1.1 not ``simply because [the victim] was pregnant,'' 
\18\ but because ``her pregnancy created a potential 
vulnerability which [the defendant] acknowledged and exploited 
when he expressly threatened to kill her unborn child.'' \19\
---------------------------------------------------------------------------
    \16\ 139 F.3d 709 (9th Cir. 1998).
    \17\ Id. at 714.
    \18\ Id.
    \19\ Id. at 715.
---------------------------------------------------------------------------
    Even assuming, however, that current Federal sentencing 
guidelines would permit a two-level sentence enhancement when 
the victim of a violent crime is pregnant, whether under the 
``bodily injury'' or ``vulnerable victim'' provisions, that 
trivial increase in punishment would not reflect the 
seriousness with which violent crimes against pregnant women 
and unborn children should be treated. For example, if an 
individual assaults a Member of Congress in violation of 18 
U.S.C. Sec. 111, the base offense level for that offense under 
the sentencing guidelines is 15, which carries a sentence of 
between 18 and 24 months.\20\ If the Congresswoman is pregnant 
and her unborn child is killed or injured as a result of the 
assault, a bodily injury or vulnerable victim sentence 
enhancement would result in an offense level of 17, which 
carries a sentence of 24 to 30 months.\21\ The permissible 
range of punishment for the assault would thus increase by only 
an additional six months, even if the assailant intended to 
kill the unborn child. This minor increase in punishment is 
woefully inadequate for the offense of killing or injuring an 
unborn child.
---------------------------------------------------------------------------
    \20\ See U.S.S.G. Sec. 2A2.2(a).
    \21\ See U.S.S.G. Sec. 2A2.2(b)(A).
---------------------------------------------------------------------------
    In short, there does not appear to be a single published or 
unpublished decision in which a Federal court has enhanced a 
sentence for a violent criminal solely because the victim was 
pregnant or because an unborn child was killed or injured 
during the commission of the crime. And even assuming a trivial 
sentence enhancement could be imposed under current Federal 
sentencing guidelines, such an enhancement would not provide 
just punishment for what should be treated as a very serious 
offense.
C. Filling the Existing Void: Some Recent Examples
    The need for H.R. 2436 is well illustrated by the case of 
United States v. Robbins.\22\ In that case, Gregory Robbins, an 
airman, and his wife, who was over eight months pregnant with a 
daughter they had named Jasmine, resided on Wright-Patterson 
Air Force Base, Ohio, an area of exclusive Federal 
jurisdiction. On September 12, 1996, Mr. Robbins wrapped his 
fist in a T-shirt (to reduce the chance that he would inflict 
visible bruises) and badly beat his wife ``by striking her 
repeatedly in her face and abdomen with his fist.'' \23\
---------------------------------------------------------------------------
    \22\ 48 M.J. 745 (A.F.C.C.A. 1998). The Subcommittee on the 
Constitution heard testimony regarding the Robbins case from Lieutenant 
Colonel Keith L. Roberts, Acting Chief of the Air Force Military 
Justice Division. See The Unborn Victims of Violence Act: Hearings on 
H.R. 2436 Before the Subcomm. on the Constitution of the House Comm. on 
the Judiciary, 106th Cong., July 21, 1999 (statement of Lt. Colonel 
Keith L. Roberts, Acting Chief of the Air Force Military Justice 
Division).
    \23\ Id. at 747.
---------------------------------------------------------------------------
    Mrs. Robbins survived the attack with ``a severely battered 
eye, a broken nose, and a ruptured uterus.'' \24\ She was taken 
to the emergency room, but medical personnel could not detect 
the baby's heartbeat.\25\ Doctors performed an emergency 
surgery on Mrs. Robbins and found
---------------------------------------------------------------------------
    \24\ Id.
    \25\ See id.

        Jasmine laying sideways, dead, in [Mrs. Robbins'] 
        abdominal cavity. As a result of [Mr. Robbins'] 
        repeated blows rupturing [Mrs. Robbins'] uterus, the 
        placenta was torn from the inner uterine wall, which 
        expelled Jasmine into [Mrs. Robbins'] abdominal 
        cavity.\26\
---------------------------------------------------------------------------
    \26\ Id.

    Air Force prosecutors recognized that ``[f]ederal homicide 
statutes reach only the killing of a born human being,'' \27\ 
and that Congress ``has not spoken with regard to the 
protection of an unborn person.'' \28\ As a result, the 
prosecutors attempted to prosecute Mr. Robbins for Jasmine's 
death under Ohio's fetal homicide law, using Article 134 of the 
Uniform Code of Military Justice.\29\ Article 134 
``incorporates by reference all Federal criminal statutes and 
those State laws made Federal law via the [Assimilated Crimes 
Act, 18 U.S.C. Sec. 13].'' \30\
---------------------------------------------------------------------------
    \27\ Id. at 752.
    \28\ Id.
    \29\ See id. at 748.
    \30\ Id.
---------------------------------------------------------------------------
    Mr. Robbins pleaded guilty to involuntary manslaughter for 
Jasmine's death, but the legality of assimilating Ohio's fetal 
homicide law through Article 134 is now the subject of Mr. 
Robbins' appeal to the Court of Appeals for the Armed Forces. 
If the court of appeals agrees with Mr. Robbins that 
assimilation of Ohio's law was improper, he will receive no 
additional punishment for killing baby Jasmine. Moreover, had 
Mr. Robbins battered his wife in a State that had no fetal 
homicide law, he could have been charged with only battery for 
beating his eight-months-pregnant wife and killing their unborn 
child.
    There have been numerous other recent examples of violent 
Federal crimes that resulted in the death of unborn children. 
On April 19, 1995, Carrie Lenz, a Drug Enforcement Agency 
employee, was showing coworkers ultrasound pictures of her 
unborn child at six months when the Murrah Federal Building in 
Oklahoma City was destroyed by a bomb. Just the day before the 
horrific bombing, she and her husband Michael Lenz, who 
testified before the Constitution Subcommittee, learned by 
ultrasound that they were having a boy and named him Michael 
James Lenz III.\31\ Under current Federal law, those 
responsible for the bombing were not subject to any additional 
punishment for the death of the Lenz's unborn child.\32\
---------------------------------------------------------------------------
    \31\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 21, 1999 (statement of Michael Lenz). See 
also Karen Abbott & Lynn Bartels, Tears Reflect the Horror of Loss, 
Nichols Courtroom in Shock at Wrenching, Desolate Tales as Jurors Begin 
Penalty Phase, Rocky Mountain News, Dec. 30, 1997, at 5A.
    \32\ At the conclusion of his testimony before the subcommittee on 
the Constitution, Mr. Lenz added that ``the official death toll for the 
Murrah Bombing remains at 168. In addition to Carrie, there were two 
other expecting mothers in the building that day that died. Three 
babies. . . . [I]n my mind 171 people lost their lives that day, and 
three `Daddies to be' became widowers.'' See Lenz Statement, supra note 
31.
---------------------------------------------------------------------------
    Ruth Croston was five months pregnant when she was shot on 
April 21, 1998, by her estranged husband Reginald Anthony 
Falice as she sat in her car at a Charlotte, North Carolina 
intersection.\33\ She and her unborn daughter died after being 
shot at least five times.\34\ Falice was prosecuted and 
convicted of interstate domestic violence and using a firearm 
in the commission of a violent crime.\35\ There was no criminal 
charge for the murder of the unborn baby girl.\36\
---------------------------------------------------------------------------
    \33\ See Georgia man convicted in slaying of estranged, pregnant 
wife, Associated Press, July 14, 1999.
    \34\ See id.
    \35\ See id.
    \36\ See id.
---------------------------------------------------------------------------
    Monica Smith, a pregnant secretary, and her unborn child 
were killed in the World Trade Center bombing in New York on 
February 26, 1993.\37\ Jurors at one trial were told about the 
harm done to Ms. Smith's unborn child,\38\ but no additional 
punishment may be imposed under Federal law for the death of 
that child.
---------------------------------------------------------------------------
    \37\ See Jeanne King, Pictures of N.Y. bombing stir emotional 
response from jury, Houston Chronicle, Aug. 8, 1997, at 26.
    \38\ See id.
---------------------------------------------------------------------------
    On January 1, 1999, Deanna Mitts, who was eight months 
pregnant, returned home with her 3 year old daughter, Kayla, 
after celebrating New Year's Eve with her parents. Shortly 
after entering her Connellsville, Pennsylvania apartment, she, 
Kayla and her unborn child were killed in an explosion from a 
bomb.\39\ Federal and local authorities are still searching for 
the person responsible.\40\
---------------------------------------------------------------------------
    \39\ See Lawrence Walsh, Bombing Shocks Small Town Blast That 
Killed Mother, Pittsburgh Post-Gazette, May 2, 1999, at B1.
    \40\ See id.
---------------------------------------------------------------------------
    On December 3, 1997, Tammy Lynn Baker was near term with 
her unborn child when a bomb exploded outside her apartment 
killing her and her unborn child.\41\ The Federal Bureau of 
Alcohol, Tobacco and Firearms is investigating this as one of 
several unsolved bombings in Louisa County, Virginia.\42\ Even 
if those responsible for these vicious crimes are apprehended, 
they will receive no additional punishment for killing the 
unborn children.
---------------------------------------------------------------------------
    \41\ See Dominic Perella, Bombings instill fear in small town: 
Suspicion of serial blasts complicates life in Louisa, Va., Detroit 
News, Dec. 27, 1998, at A2.
    \42\ See id.
---------------------------------------------------------------------------
D. H.R. 2436: The Unborn Victims of Violence Act
    H.R. 2436 fills this gap in Federal law by providing that 
an individual who injures or kills an unborn child during the 
commission of one of over sixty Federal crimes will be guilty 
of a separate offense. The punishment for that separate offense 
is the same as the punishment provided under Federal law for 
that conduct had the same injury or death resulted to the 
unborn child's mother. An offense under H.R. 2436 does not 
require proof that the defendant knew or should have known that 
the victim was pregnant, or that the defendant intended to 
cause the death or injury of the unborn child. If, however, the 
defendant committed the predicate offense with the intent to 
kill the unborn child, the punishment for the separate offense 
shall be the same as that provided under Federal law for 
intentionally killing or attempting to kill a human being.
    For example, if an individual assaults a Member of Congress 
in violation of 18 U.S.C. Sec. 111, and as a result of that 
assault kills the Congresswoman's unborn child, the perpetrator 
may be punished for either second-degree murder, voluntary 
manslaughter, or involuntary manslaughter for killing the 
unborn child (depending upon the circumstances surrounding the 
assault)--the same punishment the individual would have 
received had the Congresswoman died as a result of the 
assault.\43\ If the prosecution proves that the defendant 
assaulted the Congresswoman with the intent to kill the unborn 
child, the perpetrator may be prosecuted for first or second 
degree murder or voluntary manslaughter if the unborn child 
dies, or attempted murder or manslaughter if the child survives 
the assault.
---------------------------------------------------------------------------
    \43\ Under the Federal homicide statutes, second-degree murder 
requires proof of ``(1) the physical element of unlawfully causing the 
death of another, and (2) the mental element of malice, satisfied 
either by an intent to kill, an intent to cause serious bodily injury, 
or the existence of a depraved heart.'' United States v. Browner, 889 
F.2d 549, 552 (5th Cir. 1989). Voluntary manslaughter also requires 
proof of an unlawful and malicious killing of another, but the offense 
``is deemed to be without malice because it occurs in what the courts 
called `the heat of passion.' '' Id. Involuntary manslaughter is 
distinguished from both murder and voluntary manslaughter by an absence 
of malice, and that absence ``arises not because of provocation induced 
passion, but rather because the offender's mental state is not 
sufficiently culpable to meet the traditional malice requirements.'' 
Id. at 553. With involuntary manslaughter, ``the requisite mental state 
is reduced to `gross' or `criminal' negligence, a culpability that is 
far more serious than ordinary tort negligence but still falls short of 
that most extreme recklessness and wantonness required for `depraved 
heart' malice.'' Id.
---------------------------------------------------------------------------
    H.R. 2436 specifically exempts ``conduct for which the 
consent of the pregnant woman has been obtained or for which 
such consent is implied by law in a medical emergency.'' The 
bill also exempts conduct related to medical treatment of the 
pregnant woman or her unborn child, or conduct of the pregnant 
woman with respect to her unborn child. The bill further 
provides that the death penalty shall not be imposed.
    By enacting H.R. 2436, Congress will have spoken with 
regard to the protection of unborn persons, thereby ensuring 
that those who commit violent Federal crimes against pregnant 
women receive additional punishment for killing or injuring an 
unborn child.

                       II. Constitutional Issues

A. Mens Rea Element
    Contrary to assertions made by those opposed to providing 
protection from violence to unborn children,\44\ H.R. 2436 does 
not permit the prosecution of those who act without criminal 
intent. Instead, H.R. 2436 operates in a manner consistent with 
generally-accepted mens rea principles of criminal law.
---------------------------------------------------------------------------
    \44\ See, e.g. Letter from Jon P. Jennings, Acting Assistant 
Attorney General, United States Department of Justice, to Chairman 
Henry Hyde, Committee on the Judiciary, United States House of 
Representatives 2 (Sept. 9, 1999) (characterizing H.R. 2436 as 
``mak[ing] a potentially dramatic increase in penalty turn on an 
element for which liability is strict''); Press Release of American 
Civil Liberties Union, Washington National Office 2 (July 21, 1999) 
(stating that ``H.R. 2436 Lacks a Necessary Mens Rea Requirement'').
---------------------------------------------------------------------------
    As a general rule, H.R. 2436 provides that when one commits 
a violent crime against a pregnant woman, with criminal intent, 
and thereby injures or kills the victim's unborn child, the 
perpetrator is guilty of the same offense that would have 
resulted had the same injury or death occurred to the unborn 
child's mother. In accordance with the well-established 
criminal law doctrine known as ``transferred intent,'' the 
criminal intent directed toward the mother ``transfers'' to the 
unborn child, and the criminal is liable for the injury or 
death of the unborn child just as he would have been liable had 
the unborn child's mother been injured or killed.
    The transferred intent doctrine was recognized in England 
as early as 1576 in the case of Regina v. Saunders.\45\ In that 
case, the court stated that
---------------------------------------------------------------------------
    \45\ 2 Plowd. 473, 75 Eng. Rep. 706 (1576).

        it is every man's business to foresee what wrong or 
        mischief may happen from that which he does with an 
        ill-intention, and it shall be no excuse for him to say 
        that he intended to kill another, and not the person 
        killed. . . . For if a man of malice prepense shoots an 
        arrow at another with an intent to kill him, and a 
        person to whom he bore no malice is killed by it, this 
        shall be murder in him, for when he shot the arrow he 
        intended to kill, and inasmuch as he directed his 
        instrument of death at one, and thereby has killed 
        another, it shall be the same offense in him as if he 
        had killed the person he aimed at, . . . so the end of 
        the act, viz. the killing of another shall be in the 
        same degree, and therefore it shall be murder, and not 
        homicide only.\46\
---------------------------------------------------------------------------
    \46\ United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980) 
(quoting Regina v. Saunders, 2 Plowd. 473, 474a, 75 Eng. Rep. 706, 708 
(1576)).

    The transferred intent doctrine was adopted by American 
courts during the early days of the Republic \47\ and is now 
black letter law. One prominent criminal law commentator 
describes the modern formulation of the doctrine in this 
manner:
---------------------------------------------------------------------------
    \47\ See id.

        [W]hen one person (A) acts (or omits to act) with 
        intent to harm another person (B), but because of bad 
        aim he instead harms a third person (C) whom he did not 
        intend to harm, the law considers him (as it ought) 
        just as guilty as if he had actually harmed the 
        intended victim.\48\
---------------------------------------------------------------------------
    \48\ Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 284 (2d 
ed. 1986).

    In such situations, ``A's intent to harm B will be 
transferred to C.'' \49\ Therefore,
---------------------------------------------------------------------------
    \49\ Id.

        where A aims at B with a murderous intent to kill, but 
        because of a bad aim he hits and kills C, A is 
        uniformly held guilty of the murder of C. And if A aims 
        at B with a first-degree-murder state of mind, he 
        commits first degree murder as to C, by the majority 
        view. So too, where A aims at B with intent to injure B 
        but missing B hits and injures C, A is guilty of 
        battery of C.\50\
---------------------------------------------------------------------------
    \50\ Id. at 283.

    Another well-known criminal law commentator describes the 
application of the doctrine to the crime of murder in language 
that is remarkably similar to the language and operation of 
---------------------------------------------------------------------------
this bill:

        Under the common-law doctrine of transferred intent, a 
        defendant who intends to kill one person but instead 
        kills a bystander, is deemed the author of whatever 
        kind of homicide would have been committed had he 
        killed the intended victim. If, as to the intended 
        victim, the homicide would have constituted murder, the 
        defendant is guilty of murder as to the actual 
        bystander who was the actual victim. Similarly, if the 
        homicide would have constituted voluntary manslaughter 
        as to the intended victim, the defendant is guilty of 
        voluntary manslaughter as to the bystander who was the 
        actual victim; and if the homicide, as to the intended 
        victim, would have been justifiable, as in the case of 
        self-defense, the defendant is deemed the author of a 
        justifiable homicide as to the bystander.\51\
---------------------------------------------------------------------------
    \51\ 2 Wharton's Criminal Law 291-94 (Charles E. Torcia ed., 15th 
ed. 1994).

    H.R. 2436 operates on these basic and well-settled 
principles. It provides that when one commits a violent crime 
against a pregnant woman, and thereby injures or kills the 
victim's unborn child, the unlawful intent toward the mother 
transfers to the unborn child, and the perpetrator is guilty of 
the same level of offense that would have resulted had the same 
injury or death occurred to the unborn child's mother.\52\ It 
is not necessary for the prosecution to prove that the 
defendant knew or should have known that the victim was 
pregnant, or that the defendant intended to kill or injure the 
unborn child.\53\
---------------------------------------------------------------------------
    \52\ H.R. 2436 thus permits prosecution of the defendant for the 
offense against the unintended victim (i.e., the unborn child), even 
though the defendant succeeded in committing the crime against the 
intended victim (i.e., the pregnant woman). The defendant's intent with 
respect to the pregnant woman suffices for both offenses. This is the 
better view of the transferred intent doctrine. See, e.g., State v. 
Worlock, 569 A.2d 1314, 1325 (N.J. 1990) (``reject[ing] defendant's 
argument that the successful killing of the intended victim prevents 
the `transfer' of that intent to an unintended victim'' because ``the 
purpose of deterrence is better served by holding that defendant 
responsible for the knowing or purposeful murder of the unintended as 
well as the intended victim''); State v. Hinton, 630 A.2d 593, 598-99 
(Conn. 1993) (same). Indeed, one Federal court has held that ``[t]here 
are even stronger grounds for applying the principle where the intended 
victim is killed by the same act that kills the unintended victim.'' 
United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980). The 
committee rejects the view, followed by some courts, that the 
defendant's criminal intent does not transfer to the unintended victim 
if the crime was actually committed against the intended victim. See, 
e.g., Ford v. State, 625 A.2d 984, 997-98 (Md. 1993); but see Poe v. 
State, 671 A.2d 501, 530 (Md. 1996) (applying transferred intent 
doctrine where A shot at and hit B, and bullet went through B and 
killed C, to permit prosecution of defendant for attempted murder of B 
and murder of C; court refused to follow Ford ``because there is a 
death and the doctrine is necessary to impose criminal liability for 
the murder of the unintended victim in addition to the attempted murder 
of the intended victim'').
    \53\ The felony murder rule operates in similar manner, holding the 
perpetrator of a felony liable for death that results during the 
commission of the felony, even where that particular felon may not have 
intended or even participated directly in the killing. The relevant 
state of mind is the state of mind as to the commission of the 
underlying felony, not the killing that occurs subsequently. See United 
States v. Nichols, 169 F.3d 1255 (10th Cir. 1999); United States v. 
Tham, 118 F.3d 1501 (11th Cir. 1997); Nesbitt v. Hopkins, 907 F. Supp. 
1317 (D. Neb. 1995).
---------------------------------------------------------------------------
    H.R. 2436 contains one exception to this general rule. In 
cases in which the prosecution proves that an individual 
committed one of the predicate violent crimes against a 
pregnant woman, with the intent to kill the unborn child, that 
individual shall be punished as provided under Federal law for 
intentionally killing or attempting to kill a human being. The 
bill thus ensures that those who engage in violent Federal 
crimes against pregnant women, with the intent to kill their 
unborn children, are subject to more severe punishment than 
those who do not act with the intent to kill.
    In short, H.R. 2436 does not lack a criminal intent 
requirement.\54\ In situations in which the defendant kills or 
injures an unborn child during the commission of a Federal 
crime of violence against a pregnant woman, the mens rea 
requirement is satisfied because the criminal intent directed 
toward the mother transfers to the unborn child in accordance 
with traditional common law principles. If the defendant 
commits that violent crime against the pregnant woman with the 
intent to kill the unborn child, that intent itself satisfies 
the mens rea requirement needed to impose criminal liability 
upon the defendant for killing or injuring the unborn child.
---------------------------------------------------------------------------
    \54\ The bill does not, therefore, conflict with the notion that 
criminal statutes lacking a mens rea element are disfavored. See 
Liparota v. United States, 471 U.S. 419, 426 (1985).
---------------------------------------------------------------------------
B. Constitutional Authority for H.R. 2436
    The next question that arises regarding the 
constitutionality of H.R. 2436 is whether Congress has the 
constitutional authority to enact such legislation. And the 
answer to that question is clearly yes, because, as Professor 
Gerard Bradley of the Notre Dame Law School testified before 
the Constitution Subcommittee, the bill does not extend 
Congress' reach to prohibit any conduct that does not currently 
violate Federal law. No conduct that is currently free of 
regulation will become regulated by H.R. 2436.\55\
---------------------------------------------------------------------------
    \55\ See The Unborn Victims of Violence Act: Hearings on H.R. 2436 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong., July 21, 1999 (statement of Professor Gerard V. 
Bradley, Notre Dame Law School).
---------------------------------------------------------------------------
    Instead, H.R. 2436 merely provides an additional offense 
and punishment for those who injure or kill an unborn child 
during the course of the commission of one of the predicate 
offenses. The bill thus relies upon the predicate crimes for 
its constitutional hook.\56\ Therefore, (with one 
qualification, discussed below) if there is any question 
regarding the constitutionality of the Act's reach, that 
question generally pertains to the constitutionality of the 
predicate offense, not H.R. 2436.\57\
---------------------------------------------------------------------------
    \56\ See id.
    \57\ See id.; see also The Unborn Victims of Violence Act: Hearings 
on H.R. 2436 Before the Subcomm. on the Constitution of the House Comm. 
on the Judiciary, 106th Cong., July 21, 1999 (statement of Professor 
Hadley Arkes, Ney Professor of Jurisprudence and American Institutions, 
Amherst College) (same).
---------------------------------------------------------------------------
    The one qualification to this general conclusion relates to 
situations in which Federal jurisdiction is based upon the 
identity of the particular victim, such as the President, 
cabinet members, Members of Congress, and other government 
officials. In those situations, it may be asked whether 
constitutional authority for punishing offenses against such 
individuals extends to offenses against the unborn children of 
those victims. And the answer to that question begins with the 
recognition that it is only the discharge of Federal functions, 
not the identity of the persons as such, which grounds Federal 
jurisdiction in such cases.\58\
---------------------------------------------------------------------------
    \58\ See Statement of Professor Gerard V. Bradley, supra.
---------------------------------------------------------------------------
    In other words, protection of Federal officers and jurors 
is justified by the national interest in protecting the 
functions that Federal officers and jurors perform. And those 
functions are threatened by assaults upon the person of those 
officers and jurors, as well as by threats to them and to their 
families.\59\ Thus, it is clearly constitutional to extend 
Federal protection to the entire families of Federal officers 
and jurors in order to ensure that nothing distracts them or 
causes them to neglect their duties. That is, it is within 
Congress' power to determine that there is a distinct, 
punishable harm to the discharge of federally imposed duties 
where the unborn child or any other immediate family member of 
a protectable person is harmed or destroyed.\60\ And that 
appears to be the reasoning behind 18 U.S.C. Sec. 115, which 
prohibits assaulting, murdering, or kidnapping members of the 
immediate family of United States officials (including Members 
of Congress) and law enforcement officers.
---------------------------------------------------------------------------
    \59\ See id.
    \60\ See id.
---------------------------------------------------------------------------
C. H.R. 2436 and Abortion Rights
    H.R. 2436 does not affect or in any way interfere with a 
woman's right to terminate a pregnancy. Indeed, the bill 
clearly states that it does not apply to ``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.'' Similarly, the bill also clearly states 
that it does not permit prosecution ``of any woman with respect 
to her unborn child.''
    Nor is there anything in Roe v. Wade that prevents Congress 
from recognizing the lives of unborn children outside the 
parameters of the right to abortion marked off in that 
case.\61\ Indeed, in recognizing a woman's right to terminate 
her pregnancy, the Roe Court explicitly stated that it was not 
resolving ``the difficult question of when life begins,'' \62\ 
because ``the judiciary, at this point in the development of 
man's knowledge, is not in a position to speculate as to the 
answer.'' \63\ What the Court held was that the government 
could not ``override the rights of the pregnant woman'' to 
choose to terminate her pregnancy ``by adopting one theory'' of 
when life begins.\64\ In other words, the Court concluded that 
unborn children could not be considered ``persons in the whole 
sense,'' \65\ an opinion that is consistent with recognizing 
unborn children as persons for purposes other than abortion, 
such as inheritance and tort injury, purposes which the Roe 
Court itself recognized as legitimate.\66\
---------------------------------------------------------------------------
    \61\ See Statement of Professor Gerard V. Bradley, supra; see also 
McCavitt, supra note 11, at 639 (concluding that Roe ``should not apply 
to non-consensual acts by third parties and should not be used as a bar 
to judicial or statutory sanctions for criminal acts of third 
parties'').
    \62\ 410 U.S. at 159.
    \63\ Id.
    \64\ See id. at 162.
    \65\ Id.
    \66\ See id.
---------------------------------------------------------------------------
    The Supreme Court explicitly confirmed this understanding 
of Roe in Webster v. Reproductive Health Servs.\67\ In that 
case, the State of Missouri had enacted a statute which stated 
that the ``[t]he life of each human being begins at 
conception,'' and that ``unborn children have protectable 
interests in life, health, and well-being.'' \68\ The United 
States Court of Appeals for the Eighth Circuit struck down the 
law, holding that Missouri had ``impermissibl[y]'' adopted a 
``theory of when life begins.'' \69\ The Supreme Court reversed 
this portion of the Eighth Circuit's decision, however, stating 
that its own decisions mean ``only that a State could not 
`justify' an abortion regulation otherwise invalid under Roe v. 
Wade on the ground that it embodied the State's view about when 
life begins.'' \70\
---------------------------------------------------------------------------
    \67\ 492 U.S. 490 (1989).
    \68\ Id. at 501.
    \69\ Id. at 503.
    \70\ Id. at 506 (emphasis added).
---------------------------------------------------------------------------
    Since H.R. 2436 in no way interferes with or restricts the 
abortion right articulated in Roe, the Act is clearly 
constitutional. Congress is perfectly free, as was the State of 
Missouri, to enforce its conception of human life outside of 
the parameters of Roe.
    Courts addressing the constitutionality of State laws that 
punish killing or injuring unborn children have recognized the 
lack of merit in the argument that such laws violate Roe v. 
Wade, and as a result have consistently upheld those laws in 
the face of constitutional challenges. In State v. Coleman,\71\ 
for example, the Ohio Court of Appeals held that ``Roe protects 
a woman's constitutional right. It does not protect a third-
party's unilateral destruction of a fetus.'' \72\ In State v. 
Holcomb,\73\ the Missouri Court of Appeals stated that ``[t]he 
fact that a mother of a pre-born child may have been granted 
certain legal rights to terminate the pregnancy does not 
preclude the prosecution of a third party for murder in the 
case of a killing of a child not consented to by the mother.'' 
\74\ Similarly, in State v. Merrill,\75\ the Minnesota Supreme 
Court held that ``Roe v. Wade protects the woman's right of 
choice; it does not protect, much less confer on an assailant, 
a third-party unilateral right to destroy the fetus.'' \76\
---------------------------------------------------------------------------
    \71\ 705 N.E.2d 419 (Ohio Ct. App. 1997).
    \72\ Id. at 421.
    \73\ 956 S.W.2d 286 (Mo. Ct. App. 1997).
    \74\ Id. at 291. See also People v. Ford, 581 N.E.2d 1189, 1199 
(Ill. App. Ct. 1991) (``Clearly, a pregnant woman who chooses to 
terminate her pregnancy and the defendant who assaults a pregnant 
woman, causing the death of her fetus, are not similarly situated.'')
    \75\ 450 N.W.2d 318 (Minn. 1990).
    \76\ See id. at 322.
---------------------------------------------------------------------------
    In People v. Davis,\77\ the California Supreme Court held 
that ``Roe v. Wade principles are inapplicable to a statute . . 
. that criminalizes the killing of a fetus without the mother's 
consent.'' \78\ The Eleventh Circuit echoed that sentiment in 
Smith v. Newsome,\79\ holding that Roe v. Wade was ``immaterial 
. . . to whether a State can prohibit the destruction of a 
fetus'' by a third-party.\80\ Legal scholars have reached 
similar conclusions.\81\
---------------------------------------------------------------------------
    \77\ 872 P.2d 591 (Cal. 1994).
    \78\ Id. at 597.
    \79\ 815 F.2d 1386 (11th Cir. 1987).
    \80\ See id. at 1388.
    \81\ See, e.g., Statement of Professor Gerard V. Bradley, supra; 
Jeffrey A. Parness, Crimes Against the Unborn: Protecting and 
Respecting the Potentiality of Human Life, 22 Harv. J. on Legis. 97, 
144 (1985) (``The Roe decision . . . forbids the State's protection of 
the unborn's interests only when these interests conflict with the 
constitutional rights of the prospective parent. The Court did not rule 
that the unborn's interests could not be recognized in situations where 
there was no conflict.'').
---------------------------------------------------------------------------
    In short, H.R. 2436 clearly does not violate Roe v. Wade or 
its progeny. The Act specifically exempts abortion-related 
conduct from prosecution and the protection it affords to 
unborn children does not interfere with or restrict a woman's 
right to terminate her pregnancy.\82\
---------------------------------------------------------------------------
    \82\ Opponents of H.R. 2436 have also objected to the use of the 
term ``unborn child'' in the bill. The simple response to this 
objection is that the Supreme Court itself employed the term ``unborn 
child'' in articulating the abortion right in Roe v. Wade. See 410 U.S. 
at 161 (noting that ``unborn children have been recognized as acquiring 
rights or interests by way of inheritance or other devolution of 
property'').
---------------------------------------------------------------------------

                III. Committee Response to Agency Views

    The Department of Justice has indicated that it ``strongly 
objects'' to H.R. 2436.\83\ The committee responds to each of 
the Department's objections, which are quoted as headings to 
the committee's responses, as follows.
---------------------------------------------------------------------------
    \83\ See Letter from Jon P. Jennings, Acting Assistant Attorney 
General, United States Department of Justice, to Chairman Henry Hyde, 
Committee on the Judiciary, United States House of Representatives 1 
(Sept. 9, 1999) [hereinafter ``DOJ Letter''].
---------------------------------------------------------------------------
``H.R. 2436 . . . would trigger a substantial increase in sentence as 
        compared with the sentence that could otherwise be imposed for 
        injury to a woman who is not pregnant.'' \84\
---------------------------------------------------------------------------
    \84\ Id. at 2.
---------------------------------------------------------------------------
    The committee recognizes that H.R. 2436 will result in a 
``substantial increase in sentence'' for those who commit 
crimes of violence upon pregnant women, thereby killing or 
injuring unborn children. Indeed, that is precisely the point 
of the legislation: to ensure that those who kill or injure 
unborn children during the commission of violent Federal crimes 
receive a substantial increase in punishment for the separate 
harm inflicted upon the unborn child. The Department's 
objection is, therefore, based upon a premise the committee has 
rejected: that killing or injuring an unborn child is not 
worthy of a severe penalty.
    The Department indicates that additional punishment ``may 
be warranted for injury to pregnant women,'' \85\ but does not 
indicate what additional punishment it would approve. In light 
of the Department's objection to a ``substantial increase in 
sentence,'' the additional punishment contemplated by the 
Department would be ``insubstantial.'' The committee believes 
that an insubstantial increase in punishment does not truly 
reflect the seriousness with which violent acts against unborn 
children should be met.
---------------------------------------------------------------------------
    \85\ Id.
---------------------------------------------------------------------------
``H.R. 2436 expressly provides that the defendant need not know or have 
        reason to know that the victim is pregnant. The bill thus makes 
        a potentially dramatic increase in penalty turn on an element 
        for which liability is strict.'' \86\
---------------------------------------------------------------------------
    \86\ Id.
---------------------------------------------------------------------------
    This objection reflects a misunderstanding of the nature of 
criminal liability imposed under H.R. 2436, and a lack of 
understanding of basic principles of criminal law. As outlined 
above, H.R. 2436 provides that when an individual commits a 
violent crime against a pregnant woman, with criminal intent, 
and as a result of that crime inflicts harm upon a second 
victim, i.e., the woman's unborn child, that individual shall 
be liable for the harm inflicted upon both victims. That is 
precisely how the doctrine of transferred intent currently 
operates in the criminal law generally, and that is how it 
operates under H.R. 2436. The defendant's criminal intent 
toward the pregnant woman transfers to the unborn child, and 
the resulting liability is not ``strict,'' because the 
defendant acted with criminal intent and the law holds the 
defendant responsible for the harm he or she caused. As the 
Connecticut Supreme Court stated in State v. Hinton,\87\ ``the 
law does not give the defendant a discount on the second and 
subsequent victims of his intentional conduct.'' \88\
---------------------------------------------------------------------------
    \87\ 630 A.2d 593 (1993).
    \88\ Id. at 598.
---------------------------------------------------------------------------
    The Department's objection seems based primarily upon the 
fact that ``the defendant need not know or have reason to know 
that the victim is pregnant.'' \89\ But again, the transferred 
intent doctrine operates in the same way. If, for example, an 
individual shoots at A, with the intent to kill A, and the 
bullet goes through A, through a wall behind A, and into B, 
that individual is liable for the harm inflicted upon B, even 
if he or she did not know or have reason to know B was behind 
the wall.\90\
---------------------------------------------------------------------------
    \89\ DOJ Letter at 2.
    \90\ With respect to whether the defendant should have known the 
victim was pregnant, the committee notes its agreement with the 
Minnesota Supreme Court's assertion that ``[t]he possibility that a 
female homicide victim of childbearing age may be pregnant is a 
possibility that an assaulter may not safely exclude.'' State v. 
Merrill, 450 N.W.2d 318, 323 (Minn. 1990).
---------------------------------------------------------------------------
    The Department's hypothetical in support of this objection 
also reflects a flawed understanding of H.R. 2436 and Federal 
criminal statutes generally. Under H.R. 2436, the Department 
complains,

        if a police officer uses a slight amount of excessive 
        force to subdue a female suspect--without knowing or 
        having any reason to believe that she was pregnant--and 
        she later miscarries, the officer could be subject to 
        mandatory life imprisonment without possibility of 
        parole, even though the maximum sentence for such use 
        of force on a non-pregnant woman would be 10 years.\91\
---------------------------------------------------------------------------
    \91\ Id.

    To begin with, it is entirely unclear what the Department 
means by ``slight excessive force.'' By definition, ``excessive 
force'' is excessive, not slight. But putting this rather 
bizarre characterization aside, an officer who uses excessive 
force on a pregnant woman, but does not intend to kill or 
inflict serious bodily injury upon the woman or her unborn 
child, or act so egregiously as to evidence a depraved heart, 
would not be subject to life imprisonment without the 
possibility of parole. At most, the officer would be guilty of 
involuntary manslaughter, which carries a maximum penalty of 
six years imprisonment, a fine, or both.\92\ And that is 
precisely the same penalty the officer would receive if the 
woman died as a result of the officer's use of the same amount 
of excessive force, even if the woman had a medical condition 
of which the officer was not aware which made her more 
susceptible to death.
---------------------------------------------------------------------------
    \92\ See 18 U.S.C. Sec. 1111 (manslaughter within the special 
maritime or territorial jurisdiction of the United States). Involuntary 
manslaughter is an unintentional killing that results from the 
commission of an unlawful act evidencing a wanton or reckless disregard 
for human life. See United States v. Paul, 37 F.3d 496 (9th Cir. 1994).
---------------------------------------------------------------------------
    An additional hypothetical might assist the Department in 
understanding the nature of liability imposed under H.R. 2436. 
Suppose an individual assaults an FBI agent in violation of 18 
U.S.C. Sec. 111. Assume the agent is two months pregnant, but 
not visibly so, and the individual does not know, nor does he 
have reason to know, that she is pregnant. Let us also suppose 
that the individual did not intend to kill the agent, and that 
as result of the assault, the agent's unborn child is killed.
    Under H.R. 2436, the defendant's intent to assault the 
woman transfers to the unborn child, and the defendant is 
guilty of a separate offense against the unborn child, the 
punishment for which is the same punishment the defendant would 
have received had the pregnant woman died as a result of the 
intentional assault without the intent to kill. Under Federal 
law, that offense would likely be involuntary manslaughter, an 
offense which corresponds with the level of criminal intent 
with which the defendant acted.
    Thus, the Department is simply wrong in its assertion that 
H.R. 2436 ``is an unwarranted departure from the ordinary rule 
that punishment should correspond to culpability, as evidenced 
by the defendant's mental state.'' \93\ H.R. 2436 is based on 
that rule and punishes the defendant only in accordance with 
the level of criminal intent with which he or she acts.\94\
---------------------------------------------------------------------------
    \93\ DOJ Letter at 2.
    \94\ The committee also notes that the Department's defense of 
police officers who use excessive force on pregnant women is 
surprising, given the Department's claim that ``the fight against 
domestic violence and other violence against women [has been] a top 
priority'' of the Administration.
---------------------------------------------------------------------------
``H.R. 2436's identification of a fetus as a separate and distinct 
        victim of crime is unprecedented as a matter of Federal 
        statute.'' \95\
---------------------------------------------------------------------------
    \95\ DOJ Letter at 3.
---------------------------------------------------------------------------
    The Department is quite right that H.R. 2436 is 
``unprecedented as a matter of Federal statute.'' If H.R. 2436 
were precedented, it would be unnecessary. If the Department 
meant to say that the type of protection H.R. 2436 provides 
unborn children is unprecedented generally, the Department is 
simply wrong, as demonstrated by the numerous State statutes, 
cited above, which protect ``unborn children'' in the same way 
that H.R. 2436 does.\96\ These statutes have uniformly been 
upheld by both State and Federal courts in the face of 
constitutional challenges.\97\ Indeed, there does not appear to 
be a single published or unpublished decision declaring such 
protection to be constitutionally infirm.
---------------------------------------------------------------------------
    \96\ See supra note 10.
    \97\ See discussion supra and cases cited therein.
---------------------------------------------------------------------------
    The Department states that the committee's ``approach is 
unnecessary,'' \98\ but with no explanation, it is not at all 
clear what that means. The Department also states that the 
committee's approach ``is unwise to the extent that it may be 
perceived as gratuitously plunging the Federal Government into 
one of the most--if not the most--difficult and complex issues 
of religious and scientific consideration.'' \99\ Unlike the 
Department, the committee does not believe that protecting 
unborn children from acts of violence constitutes 
``gratuitous'' legislation. Nor does the committee believe that 
the ``difficulty'' or ``complexity'' of an issue is grounds for 
avoiding Congress' responsibility to ensure that Federal law 
provides prosecutors ample authority to punish violent 
criminals for the harm they inflict upon others.\100\
---------------------------------------------------------------------------
    \98\ DOJ Letter at 3.
    \99\ Id.
    \100\ The Department also states that its policy objections to H.R. 
2436 ``are exacerbated by the likelihood that the bill will yield 
little practical benefit.'' Id. This argument is based upon the fact 
that ``any assault on an `unborn child' cannot occur without an assault 
on the pregnant woman,'' and therefore ``H.R. 2436 would not provide 
for the prosecution of any additional criminals.'' Id. The Department 
is obviously right that no additional criminals will be prosecuted as a 
result of H.R. 2436. But the bill clearly yields substantial practical 
benefit in providing additional punishment for violent criminals who 
injure or kill unborn children, punishment that is currently not 
authorized under Federal law. Without H.R. 2436, these criminals will 
receive no additional punishment for harm inflicted upon the unborn. 
The Department also complains that prosecutors may ``encounter 
difficulty collecting evidence to support their prosecutions,'' because 
they will have to prove ``that the defendant's conduct `cause[d] the 
injury.' '' The committee recognizes that prosecutors will have to 
prove their cases, and that causation will sometimes, as in any other 
type of case, be difficult to prove. The committee is confident that 
Federal prosecutors are up to the task, however, and that in many 
cases, such as the Robbins case discussed above, causation will be 
easily proved.
---------------------------------------------------------------------------
``The bill's exception for abortion-related conduct does not, on its 
        face, encompass situations in which consent to an abortion may 
        be implied by law (if, for example, the pregnant woman is 
        incapacitated) even though there is no medical emergency.'' 
        \101\
---------------------------------------------------------------------------
    \101\ DOJ Letter at 3-4.
---------------------------------------------------------------------------
    This objection also reflects a lack of understanding of the 
basic legal principles at work in H.R. 2436. Subsection (c) 
prohibits the prosecution ``of any person 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.'' The Department suggests that the phrase 
``in a medical emergency'' limits the application of this 
exemption in such a way that it would not encompass a situation 
in which a pregnant woman is incapacitated and there is no 
medical emergency.
    The Department's objection rests upon a flawed view of the 
doctrine of implied consent in a medical emergency. That 
doctrine provides that a physician need not obtain valid 
consent from a patient when two factors are present: (1) ``the 
patient is incapacitated and cannot exercise his mental ability 
to reach an informed choice,'' and (2) ``a life- or health-
threatening disease or injury that requires immediate treatment 
is present.'' \102\ In other words, the medical emergency 
exception is premised upon the fact that the patient is 
incapacitated, and permits the physician to proceed with 
treatment only in order to prevent immediate harm to the 
patient's health.
---------------------------------------------------------------------------
    \102\ Fay A. Rozovsky, Consent to Treatment: A Practical Guide 106-
107 (1990).
---------------------------------------------------------------------------
    The doctrine of implied consent does not, however, 
authorize medical procedures upon incapacitated persons when 
there is no medical emergency. According to a leading 
commentator, ``[w]hen patients are incapacitated but do not 
require life- or health-saving treatment, practitioners cannot 
proceed.'' \103\ That is,
---------------------------------------------------------------------------
    \103\ Id. at 108.

        [w]hen there is time to secure consent for a patient 
        who is incapacitated and suffering from a severe but 
        not life-threatening illness, the law requires legally 
        effective consent. Permission to treat patients may 
        come from a duly authorized legal representative, a 
        relative designated by statute in some States, or court 
        orders compelling treatment or appointing someone to 
        act for the patient.\104\
---------------------------------------------------------------------------
    \104\ Id. at 108-09.

In situations in which these surrogate decision makers consent 
to medical procedures for the incapacitated, the law considers 
those individuals as acting in behalf of the incapacitated 
persons,\105\ and abortion-related conduct in such situations 
is exempt under subsection 1841(c) so long as valid consent is 
obtained. For these reasons, the Department's objection is 
without merit.
---------------------------------------------------------------------------
    \105\ See generally W. Page Keeton et al., Prosser and Keeton on 
the Law of Torts Sec. 18, at 116 (5th ed. 1984).
---------------------------------------------------------------------------

                             IV. Conclusion

    H.R. 2436 is prudent and necessary legislation that is 
carefully crafted to address the harms done when violent crimes 
are committed against pregnant women and their unborn children. 
The legislation remedies the defects of existing Federal law by 
rejecting the antiquated and obsolete common law ``born alive'' 
rule and ensuring just punishment for those who commit these 
heinous crimes of violence. Moreover, H.R. 2436 relies on the 
well-established doctrine of transferred intent in supplying 
the mental element necessary for prosecution, and it carefully 
excludes from its purview those acts committed by the mother or 
a third party that are otherwise protected by Roe v. Wade and 
its progeny. By recognizing the unique harms done to women and 
unborn children, and by mending the insufficiencies of current 
Federal law, H.R. 2436 serves vital national interests by 
extending the criminal law's protections for all human life.

                                Hearings

    The committee's Subcommittee on the Constitution held one 
day of hearings on H.R. 2436 on July 21, 1999. Testimony was 
received from the following witnesses: Michael Lenz, Choctaw, 
OK; Lt. Colonel Keith Roberts, Deputy Chief, Military Justice 
Division, Air Force Legal Services Agency, Bolling Air Force 
Base, Washington, D.C.; Pamela B. Stuart, Attorney at Law; 
Ronald H. Weich, Partner, Zuckerman, Spaeder, Goldstein, Taylor 
& Kolker; Terry M. Dempsey, Judge, District Court, 5th Judicial 
District, St. James, Minnesota; Hadley Arkes, Edward Ney 
Professor of Jurisprudence and American Institutions, Amherst 
College; Juley Anna Fulcher, Public Policy Director, National 
Coalition Against Domestic Violence; Peter N. Rubin, Visiting 
Professor of Law, Georgetown University Law Center; and Gerard 
V. Bradley, Professor, Notre Dame Law School.

                        Committee Consideration

    On August 4, 1999, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the bill H.R. 
2436, as amended, by a vote of 5 to 2, a quorum being present. 
On September 14, 1999, the committee met in open session and 
ordered favorably reported the bill H.R. 2436 with amendment by 
a recorded vote of 14 to 11, a quorum being present.

                         Votes of the Committee

    1. An amendment was offered by Ms. Lofgren and Mr. Conyers 
to provide additional punishment, up to life sentence, for 
``interruption of the normal course of the pregnancy or its 
termination'' during the commission of listed predicate 
offenses. The amendment was defeated by a 8-20 rollcall vote.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              8              20   ..............
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Watt to change the 
nature of the offense from violence against ``unborn children'' 
to ``violence during pregnancy'' and ``termination of a 
pregnancy or a prenatal injury.'' The amendment was defeated by 
a 11-14 rollcall vote.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............  ..............  ..............
Mr. Coble.......................................................  ..............  ..............  ..............
Mr. Smith (TX)..................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             11              14   ..............
----------------------------------------------------------------------------------------------------------------

    3. An amendment was offered by Ms. Baldwin to define the 
term ``medical treatment'' in the text of the bill. The 
amendment was defeated by a 11-13 rollcall vote.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............  ..............  ..............
Mr. Coble.......................................................  ..............  ..............  ..............
Mr. Smith (TX)..................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             11              13   ..............
----------------------------------------------------------------------------------------------------------------

    4. Final Passage. The motion to report the bill H.R. 2436 
as amended by the amendment in the nature of a substitute was 
adopted. The motion was agreed to by a rollcall vote of 14-11.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............  ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................              X   ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............              X   ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................  ..............              X   ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             14              11   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 2436, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 20, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2436, the Unborn 
Victims of Violence Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.
H.R. 2436--Unborn Victims of Violence Act of 1999.
    CBO estimates that implementing H.R. 2436 would not result 
in any significant cost to the federal government. Because 
enactment of H.R. 2436 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill. 
However, CBO estimates that any impact on direct spending and 
receipts would not be significant. H.R. 2436 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    H.R. 2436 would establish a new federal crime for the 
injury or death of an unborn child that results from certain 
offenses committed against the mother. Violators would be 
subject to imprisonment and fines. As a result, the federal 
government would be able to pursue cases that it otherwise 
would not be able to prosecute. CBO expects that any increase 
in federal costs for law enforcement, court proceedings, or 
prison operations would not be significant, however, because of 
the small number of cases likely to be involved. Any such 
additional costs would be subject to the availability of 
appropriated funds.
    Because those prosecuted and convicted under H.R. 2436 
could be subject to criminal fines, the federal government 
might collect additional fines if the bill is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and spent in subsequent years. CBO expects 
that any additional receipts and direct spending would be 
negligible.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8, clause 18 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Section 1. Short Title. This section provides that the 
title of the Act is the Unborn Victims of Violence Act of 1999.
    Section 2. Protection of Unborn Children. Section 2(a) 
amends Title 18 of the United States Code by inserting 
``Section 1841'' and each of the following subsections after 
chapter 90A of that Title. These provisions provide the 
substantive component of the Act.
    Section 1841(a)(1) provides that where one engages in 
violent conduct against a pregnant woman, in violation of one 
or more of the Federal criminal laws listed in subsection (b), 
the perpetrator shall be guilty of a separate criminal offense 
if an unborn child is killed or injured in the commission 
thereof. This subsection relies on the well-established 
doctrine of transferred intent in providing the mens rea 
element for the crime against the unborn child. That is, the 
criminal intent directed toward the unborn child's mother is 
transferred to the unborn child. This subsection eliminates the 
obsolete common law born-alive rule, replacing it with widely 
accepted modern jurisprudence recognizing unborn children as 
victims of violent crime.
    Section 1841(a)(2)(A) establishes the punishment for the 
separate offense committed against the unborn child. This 
subsection provides that when death or bodily injury to the 
unborn child results from the commission of an offense listed 
in subsection (b), the defendant shall receive the same 
punishment he or she would have received under Federal law had 
the same bodily injury or death resulted to the unborn child's 
mother.
    Section 1841(a)(2)(B) provides that an offense under this 
section does not require proof that the defendant knew or 
should have known that the victim of the underlying offense was 
pregnant, or that the defendant intended to cause the death or 
bodily injury to the unborn child.
    Section 1841(a)(2)(C) provides that if the defendant 
engaged in the conduct against the pregnant woman and thereby 
intentionally killed or attempted to kill the unborn child, the 
defendant shall be punished as provided under Federal law for 
killing or attempting to kill another human being. Section 
1841(a)(2)(D) states that notwithstanding any other provision 
of Federal law, the death penalty shall not be imposed for an 
offense under this section.
    Section 1841(b) lists the various provisions of the United 
States Code that serve as predicate offenses for the offense 
against the unborn child. Subsection (1) lists provisions of 
Title 18; subsection (2) lists Section 408(e) of the Controlled 
Substances Act of 1970, 21 U.S.C. Sec. 848; and subsection (3) 
lists Section 202 of the Atomic Energy Act of 1954, 42 U.S.C. 
Sec. 2283. If the defendant engages in the violent conduct 
prohibited by these provisions, and his conduct results in 
death or bodily injury to an unborn child, he is guilty of a 
separate offense, as provided in Section 2(a).
    Section 1841(c) prohibits the United States from 
prosecuting any of the following individuals for the death or 
injury of an unborn child: under subsection (1), any person who 
performs a legally consensual abortion; under subsection (2), 
any person who provides medical treatment to a pregnant woman 
or her unborn child; and, under subsection (3), the pregnant 
woman herself. These provisions ensure that this legislation 
does not implicate or interfere with the right to an abortion 
established by Roe v. Wade, 410 U.S. 113 (1973) and its 
progeny.
    Section 1841(d) defines ``unborn child'' as ``a child in 
utero,'' a definition consistent with those State laws that 
courts have consistently upheld. ``Child in utero'' or ``child, 
who is in utero'' are, in turn, defined as ``a member of the 
species homo sapiens, at any stage of development, who is 
carried in the womb.''
    Section 2(b) of the Act is a clerical amendment, inserting 
``1841'' after the item relating to chapter 90 in Title 18 of 
the United States Code.
    Section 3. Military Justice System. This section amends the 
Uniform Code of Military Justice to provide an additional 
offense for injuring or killing an unborn child during the 
commission of certain violent crimes punishable under the 
Uniform Code of Military Justice. Pursuant to rule X of the 
Rules of the House of Representatives, this section was 
referred to the committee on Armed Services, as the Committee 
on the Judiciary does not have jurisdiction over this section 
of the bill. For a summary of section 3, refer to the report of 
the Committee on Armed Services on H.R. 2436.

                              Agency Views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                 Washington, DC, September 9, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department of Justice on H.R. 2436, the ``Unborn Victims of 
Violence Act of 1999.''
    Section 2 of H.R. 2436 would make it a separate federal 
offense to cause ``death or bodily injury'' to ``a child in 
utero'' in the course of committing any one of 68 enumerated 
federal crimes.\1\ The punishment for the new crime under H.R. 
2436 is the same as if the harm had been inflicted upon the 
``unborn child's mother,'' except that the death penalty is not 
permitted. Section 3 of H.R. 2436 would make substantively 
identical amendments to the Uniform Code of Military Justice.
---------------------------------------------------------------------------
    \1\ The enumerated crimes cover a broad range of activities--from 
assault or murder within United States jurisdiction, 18 U.S.C. 
Sec. Sec. 113-115, 1111-1119, to damaging religious property, 18 U.S.C. 
Sec. 247, and animal enterprise terrorism, 18 U.S.C. Sec. 43.
---------------------------------------------------------------------------
    The Justice Department strongly objects to H.R. 2436 as a 
matter of public policy and also believes that in specific 
circumstances, illustrated below, the bill may raise a 
constitutional concern. The Administration has made the fight 
against domestic violence and other violence against women a 
top priority. The Violence Against Women Act (VAWA), which 
passed with the bipartisan support of Congress in 1994, has 
been a critical turning point in our national effort to address 
domestic violence and sexual assault. VAWA, for the first time, 
created federal domestic violence offenses with strong 
penalties to hold violent offenders accountable. While most 
domestic violence crimes are appropriately prosecuted at the 
state and local level, the Department of Justice has brought 
179 VAWA and VAWA-related federal indictments to date, and this 
number continues to grow. In addition, the Department of 
Justice alone has awarded well over $700 million through VAWA 
grant programs since 1994, directing critical resources to 
communities' efforts to respond to domestic violence and sexual 
assault. These funds have made a difference in women's lives, 
and in how communities respond to violence against women. 
Indeed, these funds have helped save the lives of many victims 
of domestic violence.
    If the Committee wants to make a difference in the lives of 
women victims of violence, it should reauthorize the Violence 
Against Women Act. We hope that Congress will work with us on 
this common goal. H.R. 2436, however, is not an adequate 
response to violence against women. Our three main objections 
to H.R. 2436 are described below.
    First, H.R. 2436 provides that the punishment for a 
violation shall be the same as the punishment that would have 
been imposed had the pregnant woman herself suffered the injury 
inflicted upon her fetus. The Department agrees that some 
additional punishment may be warranted for injury to pregnant 
women. H.R. 2436, however, would trigger a substantial increase 
in sentence as compared with the sentence that could otherwise 
be imposed for injury to a woman who is not pregnant.
    Second, H.R. 2436 expressly provides that the defendant 
need not know or have reason to know that the victim is 
pregnant. The bill thus makes a potentially dramatic increase 
in penalty turn on an element for which liability is strict. As 
a consequence, for example, if a police officer uses a slight 
amount of excessive force to subdue a female suspect--without 
knowing or having any reason to believe that she was pregnant--
and she later miscarries, the officer could be subject to 
mandatory life imprisonment without possibility of parole, even 
though the maximum sentence for such use of force on a non-
pregnant woman would be 10 years. This approach is an 
unwarranted departure from the ordinary rule that punishment 
should correspond to culpability, as evinced by the defendant's 
mental state.\2\
---------------------------------------------------------------------------
    \2\ H.R. 2436 also could be read to impose two punishments for the 
same injury. Under the newly created Sec. 1841(a)(2)(C), intentional 
injury to the ``child in utero'' is to be treated as murder or 
manslaughter, but the bill does not specify whether this treatment 
supplants or supplements H.R. 2436's default punishment--the punishment 
the defendant would receive had he injured the pregnant woman.
---------------------------------------------------------------------------
    Third, H.R. 2436's identification of a fetus as a separate 
and distinct victim of crime is unprecedented as a matter of 
federal statute. Such an approach is unnecessary for 
legislation that would augment punishment of violence against 
pregnant women. Additionally, such an approach is unwise to the 
extent that it may be perceived as gratuitously plunging the 
federal government into one of the most--if not the most--
difficult and complex issues of religious and scientific 
consideration and into the midst of a variety of State 
approaches to handling these issues.
    Our policy concerns with H.R. 2436 are exacerbated by the 
likelihood that the bill will yield little practical benefit. 
Because the criminal conduct that would be addressed by H.R. 
2436 is already the subject of a federal law (since any assault 
on an ``unborn child'' cannot occur without an assault on the 
pregnant woman), H.R. 2436 would not provide for the 
prosecution of any additional criminals. At the same time, 
prosecutors proceeding under H.R. 2436 would be likely to 
encounter difficulty collecting evidence to support their 
prosecutions. For instance, the prosecutor would have to 
establish that the defendant's conduct ``cause[d]'' the 
injury--given the inherent risk of miscarriage and birth 
defects that occur absent any human intervention, causation may 
be very difficult to establish.
    Finally and critically, the drafters of H.R. 2436 are 
careful to recognize that abortion-related conduct is 
constitutionally protected.\3\ The bill accordingly prohibits 
prosecution for conduct relating to a consensual abortion or an 
abortion where consent ``is implied by law in a medical 
emergency.'' \4\ Without this exception, the bill would be 
plainly unconstitutional. Including the exception does not, 
however, remove all doubt about the bill's constitutionality. 
The bill's exception for abortion-related conduct does not, on 
its face, encompass situations in which consent to an abortion 
may be implied by law (if, for example, the pregnant woman is 
incapacitated) even though there is no medical emergency. In 
this situation, the bill may unduly infringe on 
constitutionally protected conduct.
---------------------------------------------------------------------------
    \3\ See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. 
Casey, 505 U.S. 833 (1992).
    \4\ The bill also prohibits prosecution of any persons for medical 
treatment of the pregnant woman or her unborn child or any woman with 
respect to her ``unborn child.''
---------------------------------------------------------------------------
    For these reasons, we strongly oppose H.R. 2436. The 
Administration, however, would work with Congress to develop 
alternative legislation that would strengthen punishment for 
intentional violence against women whom the perpetrator knows 
or should know is pregnant, strengthen the criminal provisions 
of VAWA, and reauthorize the grant programs established by this 
historic legislation.
    Thank you for this opportunity to present our views. The 
Office of Management and Budget has advised us that from the 
standpoint of the Administration, there is no objection to 
submission of this letter. Please do not hesitate to call upon 
us if we may be of further assistance.
            Sincerely,
        Jon P. Jennings, Acting Assistant Attorney General.

cc: Honorable John Conyers, Jr.
                Ranking Minority Member

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
                             PART I--CRIMES

Chap.                                                               Sec.
1.     General provisions.........................................     1
     * * * * * * *
90A.   Protection of unborn children..............................  1841
     * * * * * * *

               CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

Sec.
1841.  Protection of unborn children.

Sec. 1841. Protection of unborn children

    (a)(1) Whoever engages in conduct that violates any of the 
provisions of law listed in subsection (b) and thereby causes 
the death of, or bodily injury (as defined in section 1365) to, 
a child, who is in utero at the time the conduct takes place, 
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 under Federal law for that conduct had that 
injury or death occurred to the unborn child's mother.
    (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 death of, 
        or bodily injury to, the unborn child.
    (C) If the person engaging in the conduct thereby 
intentionally kills or attempts to kill the unborn child, that 
person shall be punished as provided under sections 1111, 1112, 
and 1113 of this title for intentionally killing or attempting 
to kill a human being.
    (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), (f), (h)(1), 
        and (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), (a)(2)(B), and (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).
    (c) Nothing in this section shall be construed to permit 
the prosecution--
            (1) of any person 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) of any person for any medical treatment of the 
        pregnant woman or her unborn child; or
            (3) of any woman with respect to her unborn child.
    (d) As used in this section, the term ``unborn child'' 
means a child in utero, and the term ``child in utero'' or 
``child, who is in utero'' means a member of the species homo 
sapiens, at any stage of development, who is carried in the 
womb.

           *       *       *       *       *       *       *

                              ----------                              


               CHAPTER 47 OF TITLE 10, UNITED STATES CODE

CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE

           *       *       *       *       *       *       *


                    SUBCHAPTER X--PUNITIVE ARTICLES

                                 Sec. 

Art. 

                                 877. 

77. 

Principals.

          * * * * * * *

                                 919a.

119a.

Protection of unborn children.

           *       *       *       *       *       *       *


Sec. 919a. Art. 119a. Protection of unborn children

    (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 death of, or bodily 
injury (as defined in section 1365 of title 18) to, a child, 
who is in utero at the time the conduct takes place, is guilty 
of a separate offense under this section.
    (2) The punishment for that separate offense is the same as 
the punishment provided for that conduct under this chapter had 
the injury or death occurred to the unborn child's mother, 
except that the death penalty shall not be imposed.
    (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 118, 119(a), 119(b)(2), 120(a), 122, 
124, 126, and 128).
    (c) 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 her unborn child; or
            (3) of any woman with respect to her unborn child.
    (d) In this section, the term ``unborn child'' means a 
child in utero.

           *       *       *       *       *       *       *

                            Dissenting Views

    We oppose H.R. 2436, the ``Unborn Victims of Violence Act 
of 1999'' because, as crafted, the bill will diminish, rather 
than enhance, the rights of women.\1\
---------------------------------------------------------------------------
    \1\ H.R. 2436 is opposed by the pro-choice and women's advocacy 
community, as well as by the Administration, and is surely headed for 
veto should it pass the Congress.
---------------------------------------------------------------------------
    H.R. 2436 would amend the Federal criminal code and the 
Uniform Code of Military Justice to create a new Federal crime 
for bodily injury or death of an ``unborn child'' who is ``in 
utero''--defined as ``a member of the species homo sapiens, at 
any stage of development, who is carried in the womb.'' H.R. 
2436 creates an offense that would occur when one or more 
enumerated Federal crimes has been committed and the ``death'' 
or ``bodily injury'' to the fetus occurs.\2\ There is no 
requirement of knowledge or intent to cause such death or 
bodily injury. The bill includes a penalty that is ``the same 
as the punishment provided under Federal law . . . had that 
injury or death occurred to the unborn child's mother,'' except 
that the death penalty shall not be imposed.\3\
---------------------------------------------------------------------------
    \2\ The use of words such as ``unborn child,'' ``death'' and 
``bodily injury'' are designed to inflame and establish the Federal 
precedent of recognizing the fetus as a person, which, if extended 
further, would result in a major collision between the rights of the 
mother and the rights of the fetus. We believe that the bill could be 
cured to prohibit the very conduct that would be criminalized by H.R. 
2436 without creating such a precedent. In fact, we have offered curing 
amendments and alternative legislation that would accomplish this goal, 
but all efforts to this effect have been consistently rejected by the 
majority.
    \3\ While H.R. 2436 does create a new crime, the majority refuses 
to acknowledge that this bill, if enacted, would operate as a 
sentencing enhancement. Perhaps the reluctance to make this point lies 
in the fact that there is precedent for increasing Federal sentences 
where fetal harm has occurred, as Ron Weich, a noted former prosecutor 
stated in hearing testimony:

      ``[I]n both U.S. v. Peoples, 1997 U.S. Appl. LEXIS 27067 
      (9th Cir. 1997) and U.S. v. Winzer, 1998 U.S. App. LEXIS 
      29640 (9th Cir. 1998), the court held that assaulting a 
      pregnant woman during a bank robbery could lead to a two 
      level enhancement (approximately a 25% increase) under 
      Sec. 2B1.1(b)(3)(A) of the Guidelines relating to physical 
      injury. In U.S. v. James, 139 F.3d 709 (9th Cir. 1998), the 
      court held that a pregnant woman may be treated as a 
      `vulnerable victim' under Sec. 3A1.1 of the Guidelines, 
      again leading to a two level sentencing enhancement for the 
      defendant. Again in United States v. Manuel, 1993 U.S. App. 
      LEXIS 14946 (9th Cir. 1993), the court held that the 
      defendant's prior conviction for assaulting his pregnant 
      wife warranted an upward departure from the applicable 
      guideline range for his subsequent assault conviction.'' 
      Weich, Constitution Subcommittee Hearing Testimony, July 
      21, 1999.
    On its face, this bill could be seen as an attempt to 
protect pregnant women from assault and to provide prosecutors 
with another tool to punish those who cause the non-consensual 
termination of a pregnancy. On closer examination, however, the 
bill sets the stage for an assault on Roe v. Wade \4\ through 
the legislative process by treating the fetus as a person, 
distinct from the mother. Because we believe that this same 
bill could be written in a way that would not implicate Roe, we 
are compelled to dissent.

    \4\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------

             I. H.R. 2436 Will Obscure the Rights of Women

    H.R. 2436 represents an effort to endow a fetus with 
rights--such as recognition as a crime victim--and to thus 
erode the foundational premise of Roe.\5\ If passed, this bill 
would mark the first time that our Federal laws would recognize 
the fetus, and all earlier stages of gestational development, 
as a person, a notion that the Roe Court considered but 
rejected.\6\ The Court declined to grant fetuses the status of 
a person because it recognized the difficulty in finding a 
endpoint to rights that the fetus might claim, and the current 
bill raises those same issues.\7\ Aside from this general 
concern, there is the real threat that this bill will spur the 
so-called ``right-to-life'' movement to use this bill as a 
building block to undermine a woman's right to choose.
---------------------------------------------------------------------------
    \5\ While H.R. 2436 is replete with references to the term fetus, 
by its express terms, it would elevate the status of all stages of 
gestational development: zygote (fertilized egg); blastocyst 
(preimplantation embryo); and embryo (through week eight of pregnancy).
    \6\ 410 U.S. at 162 (stating that ``the unborn have never been 
recognized in the law as persons in the whole sense.'').
    \7\ For example, this legislation could open the door for future 
legislation through which a woman could be held civilly or criminally 
liable for fetal injuries caused by accidents resulting from maternal 
negligence, such as automobile or household accidents. A woman could 
also be held liable for any behavior during her pregnancy having 
potentially adverse effects on her fetus, including failing to eat 
properly, using prescription, nonprescription and illegal drugs, 
smoking, drinking alcohol, exposing herself to infectious disease, to 
workplace hazards, or engaging in immoderate exercise or sexual 
intercourse, residing at high altitudes for prolonged periods, or using 
general anesthetic or drugs to include rapid labor during delivery. 
Pregnant women would live in constant fear that any accident or 
``error'' in judgment could be deemed ``unacceptable'' and become the 
basis for a criminal prosecution by the state or a civil suit by a 
disenchanted husband or relative.
---------------------------------------------------------------------------
    The United States Justice Department recognizes the 
implications of this bill and has voiced similar concerns. In a 
recent letter to the Committee, the Department wrote: ``H.R. 
2436's identification of a fetus as a separate and distinct 
victim of crime is unprecedented as a matter of Federal statute 
. . . such an approach is unwise to the extent it may be 
perceived as gratuitously plunging the Federal Government into 
one of the most--if not the most--difficult and complex issues 
of religious and scientific consideration and into the midst of 
a variety of State approaches to handling these issues.'' \8\ 
Indeed, other observers have parsed through the rhetoric and 
assessed the political motivations behind this bill, with a 
recent New York Times editorial stating that ``[H.R. 2436] 
treats the woman as a different entity from the fetus--in 
essence raising the status of the fetus to that of a person for 
law enforcement purposes--a long time goal of the right-to-life 
movement.'' \9\
---------------------------------------------------------------------------
    \8\ Letter from Jon P. Jennings, Acting Assistant Attorney General, 
September 9, 1999.
    \9\ New York Times, September 14, 1999 at A30.
---------------------------------------------------------------------------
    We might feel more comfortable assessing the motivations 
behind this bill if there were a clear signal from the 
majority. However, there appears to be some confusion among the 
bill's proponents about its purpose. Although Constitution 
Subcommittee Chairman Charles Canady and the lead sponsor of 
the bill, Representative Lindsey Graham, have downplayed the 
bill's relationship to the abortion issue,\10\ Chairman Hyde, 
in subcommittee and full committee hearings, has expressed a 
different view. ``Finally,'' he told us in the full committee 
mark up, ``there will be a Federal law that recognizes that the 
[fetus] is not a `nothing.' '' Moreover, two of the majority's 
subcommittee hearing witnesses, Hadley Arkes and Gerard 
Bradley, explicitly linked H.R. 2436 to the abortion debate 
through their testimony.\11\ Similarly, the fact that the bill 
was referred to the Constitution Subcommittee, rather than the 
Crime Subcommittee, appears to reveal the majority's true 
intent to craft an abortion bill and not a crime bill.\12\
---------------------------------------------------------------------------
    \10\ In fact, both Messrs. Canady and Graham have noted repeatedly 
that the bill by its terms expressly takes into account a woman's right 
to choose by exempting abortion from the scope of the bill.
    \11\ Most candidly, Mr. Arkes noted that H.R. 2436 ``would find its 
fuller significance when Congress finally puts into place the 
understanding that there are limits to the right of abortion. . . .'' 
Constitution Subcommittee Hearings, July 21, 1999.
    \12\ When Representative Scott inquired as to why H.R. 2436 was 
assigned to the Constitution Subcommittee, rather than the Crime 
Subcommittee since it purported to involve the criminal law, he was 
informed by Chairman Hyde that the assignment was ``arbitrary.'' 
Judiciary Committee Markup, September 14, 1999.
---------------------------------------------------------------------------

   II. The Legislation Ignores the Very Serious Problem of Domestic 
                                Violence

    As the bill reported by the Committee stands, when a crime 
is committed against a pregnant women, the focus is no longer 
on the woman victimized by violence. Instead, the legislation 
switches our attention to the impact of the crime on the 
pregnancy--once again diverting the legal system away from 
domestic violence or other violence against women.
    If the majority were truly concerned about protecting 
pregnant women and preventing harm to developing pregnancies, 
they would reauthorize the Violence Against Women Act of 1994 
(``VAWA''), or mark up the ``Violence Against Women Act of 
1999'' (H.R. 357) which expands protections for women against 
callous acts of violence regardless of their pregnancy status. 
VAWA is a comprehensive approach to dealing with domestic 
violence and sexual assault that enables shelters, rape crisis 
centers, health care settings, schools, police forces, and 
communities across the country to spearhead efforts to address 
and prevent violence against women in their communities.
    In their letter, the Justice Department has written, ``if 
the Committee wants to make a difference in the lives of women 
victims against violence, it should reauthorize the Violence 
Against Women Act.'' This was also a principal complaint of 
Juley Fulcher of the National Coalition Against Domestic 
Violence, who argued at the hearings that by creating a new 
cause of action, as H.R. 2436 does, the crime committed against 
a pregnant woman is no longer about the woman victimized by 
violence. ``Instead the focus will often be switched to the 
impact of that crime on the unborn fetus, once again diverting 
the attention of the legal system away from domestic violence 
or other violence against women.'' \13\ We share these 
concerns.
---------------------------------------------------------------------------
    \13\ Testimony of Juley Fulcher, Hearings: Constitution 
Subcommittee, July 21, 1999.
---------------------------------------------------------------------------

                               Conclusion

    As we understand this bill, the majority's goal of averting 
violence toward women and their developing pregnancies is 
secondary to their goal of undermining the reproductive rights 
of women. Rather than seeking to score points in the abortion 
debate, we invite the majority to join us in crafting 
legislation that protects women and mothers from violence that 
threaten all those under their care. Because it is impossible 
to harm a developing pregnancy without causing harm to the 
woman, we would be better served by laws that protect women, 
pregnant and non-pregnant alike, from violence. Instead of 
moving toward the laudable goal of enhancing the welfare of 
mothers, H.R. 2436 lays the groundwork for governmental 
intervention into their bodies and their reproductive choice.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Bobby Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Anthony D. Weiner.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   Tammy Baldwin.