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107th Congress                                            Report 107-42
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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



 
                 UNBORN VICTIMS OF VIOLENCE ACT OF 2001

                                _______
                                

                 April 20, 2001.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 503]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 503) to amend title 18, United States Code, and the 
Uniform Code of Military Justice to protect unborn children 
from assault and murder, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    15
Committee Consideration..........................................    15
Vote of the Committee............................................    15
Committee Oversight Findings.....................................    18
Performance Goals and Objectives.................................    18
New Budget Authority and Tax Expenditures........................    18
Congressional Budget Office Cost Estimate........................    18
Constitutional Authority Statement...............................    19
Section-by-Section Analysis and Discussion.......................    19
Changes in Existing Law Made by the Bill, as Reported............    20
Markup Transcript................................................    23
Dissenting Views.................................................    73

                          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\
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    \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. 503, the ``Unborn Victims of Violence Act of 2001,'' 
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. 503 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.'' 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 ``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, the law today recognizes, 
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; Ga. Code Ann. Sec. Sec. 16-
5-80, 40-6-393.1, 52-7-12.3; 720 Ill. Comp. Stat. Ann. 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. Cons. Stat. Ann. 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. 503 thus follows the current trend of 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. 503 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. Mr. 
Ronald Weich, Esq., testified to that effect before the 
Subcommittee on the Constitution during the 106th Congress.\12\ 
This is simply not the case.
---------------------------------------------------------------------------
    \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 fact 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--including 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 8-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 Federal official 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 Federal official 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 6 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. 503 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 8 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). During the 106th Congress, 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, and the military judge sentenced him to 
confinement for 8 years, a dishonorable discharge, and a 
reduction to the lowest enlisted grade. If, however, Robbins 
had committed the act in a State which did not have a fetal 
homicide law, he would have received no additional punishment 
for killing baby Jasmine. Indeed, 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 8-months-
pregnant wife and killing their unborn child. H.R. 503 would 
correct this deficiency and ensure that all of those who, like 
Robbins, commit violent crimes against pregnant women and are 
subject to Federal prosecution receive just and adequate 
punishment for injuries inflicted upon unborn children.
    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 6 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 during the 106th 
Congress, 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 5 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\ Ms. 
Croston's brother, William Croston, testified before the 
Subcommittee on the Constitution on March 15, 2001, regarding 
the tragic death of his sister and the failure of Federal law 
to recognize the death of his unborn niece.\37\
---------------------------------------------------------------------------
    \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.
    \37\ See The Unborn Victims of Violence Act of 2001: Hearings on 
H.R. 503 Before the Subcomm. on the Constitution of the House Comm. on 
the Judiciary, 107th Cong., March 15, 2001 (statement of William 
Croston).
---------------------------------------------------------------------------
    Monica Smith, a pregnant secretary, and her unborn child 
were killed in the World Trade Center bombing in New York on 
February 26, 1993.\38\ Jurors at one trial were told about the 
harm done to Ms. Smith's unborn child,\39\ but no additional 
punishment may be imposed under Federal law for the death of 
that child.
---------------------------------------------------------------------------
    \38\ See Jeanne King, Pictures of N.Y. bombing stir emotional 
response from jury, Houston Chronicle, Aug. 8, 1997, at 26.
    \39\ See id.
---------------------------------------------------------------------------
    On January 1, 1999, Deanna Mitts, who was 8 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.\40\ Joseph Minard, the presumed father of the child, was 
arrested almost a year later for the murder of Deanna and Kayla 
and is currently awaiting trial in Federal court. Even if 
convicted, however, he will receive no punishment for killing 
the unborn child.\41\
---------------------------------------------------------------------------
    \40\ See Lawrence Walsh, Bombing Shocks Small Town Blast That 
Killed Mother, Pittsburgh Post-Gazette, May 2, 1999, at B1.
    \41\ 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.\42\ Almost 3 years later, the 
unborn child's father, Coleman Johnson, was arrested on Federal 
explosives charges for the death of Ms. Baker and is awaiting 
trial. Even if he is convicted, he will receive no additional 
punishment for killing the unborn child.
---------------------------------------------------------------------------
    \42\ 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.
---------------------------------------------------------------------------
D. H.R. 503: The Unborn Victims of Violence Act
    H.R. 503 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. 503 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. 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. 503 specifically exempts ``conduct for which the 
consent of the pregnant woman has been obtained or for which 
such consent is implied by law.'' 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. 503, Congress will have spoken with regard 
to the protection of unborn children, 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. 503 does 
not permit the prosecution of those who act without criminal 
intent. Instead, H.R. 503 operates in a manner consistent with 
generally-accepted mens rea principles of criminal law.
---------------------------------------------------------------------------
    \44\ See, e.g. Memorandum of American Civil Liberties Union, 
Washington National Office, to Interested Persons 2 (March 14, 2001) 
(claiming that conviction for an offense under H.R. 503 does not 
require proof of ``a mens rea (or criminal intent) requirement''); 
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. 503 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 an additional offense, the punishment 
for which is the same as the punishment the defendant would 
have received had that 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 
a born person 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. 503 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 
an additional offense of the same level 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. 503 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. 503 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 the unborn child.
    In short, H.R. 503 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. 503
    The next question that arises regarding the 
constitutionality of H.R. 503 is whether Congress has the 
constitutional authority to enact such legislation. That 
question must be answered in the affirmative because the bill 
does not extend Congress' reach to prohibit any conduct that 
does not currently violate Federal law.\55\
---------------------------------------------------------------------------
    \55\ See The Unborn Victims of Violence Act of 2001: Hearings on 
H.R. 503 Before the Subcomm. on the Constitution of the House Comm. on 
the Judiciary, 107th Cong., March 15, 2001 (statement of Professor 
Richard Myers, Ave Maria Law School); 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. 503 merely provides an additional offense and 
punishment for those who injure or kill an unborn child during 
the commission of one of the predicate Federal 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. 503.\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 Richard Myers, supra; 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. 503 and Abortion Rights
    H.R. 503 does not affect or in any way interfere with a 
woman's right to abort 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.'' 
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 Richard Myers, supra; 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 the Court's 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. 503 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 Richard Myers, supra; 
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. 503 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.
D. Use of the Term ``Unborn Child''
    Opponents of H.R. 503 have also argued that the use of the 
term ``unborn child'' is ``designed to inflame'' and may, in 
the words of those dissenting from the Judiciary Committee 
report during the 106th Congress, ``result in a major collision 
between the rights of the mother and the rights of'' the unborn 
child. This objection is based upon an apparent lack of 
knowledge of the widespread use of the term ``unborn child'' in 
the decisions of the United States Supreme Court and the United 
States Courts of Appeals, in State statutes and court 
decisions, and even in the legal writings of abortion 
advocates.
    The use of the term ``unborn child'' by the Supreme Court 
can be illustrated by reference to no greater authority than 
Roe v. Wade,\82\ in which Justice Blackman used the term 
``unborn children'' as synonymous with ``fetuses.'' Justice 
Blackman also used the term ``unborn child'' in Doe v. 
Bolton,\83\ the companion case to Roe in which the Court struck 
down Georgia's abortion statute.
---------------------------------------------------------------------------
    \82\ 410 U.S. 113 (1973).
    \83\ 410 U.S. 179 (1973).
---------------------------------------------------------------------------
    The Court has also used the term ``unborn child'' outside 
of the abortion context. In Burns v. Alcala,\84\ for example, 
the Court held that ``unborn children'' are not ``dependent 
children'' for purposes of obtaining aid under the Aid to 
Families with Dependent Children (AFDC) program. Not only did 
Justice Powell use the term ``unborn child'' in the majority 
opinion in Burns, but Justice Thurgood Marshall dissented in 
that case and argued that ``unborn children'' should be covered 
as ``dependent children'' under AFDC. Surely the opponents of 
H.R. 503 would not seriously contend that Justice Marshall--a 
staunch defender of abortion rights--was putting abortion 
rights at risk by arguing that ``unborn children'' should be 
recognized under a Federal statute.
---------------------------------------------------------------------------
    \84\ 420 U.S. 575 (1975).
---------------------------------------------------------------------------
    There are numerous decisions that use the term ``unborn 
child'' as synonymous with ``fetus,'' including City of Akron 
v. Akron Center for Reproductive Health,\85\ Webster v. 
Reproductive Health Services,\86\ and International Union v. 
Johnson Controls.\87\ Additionally, there are numerous 
decisions by the United States Courts of Appeals using the term 
``unborn child.'' For a few examples, see Alexander v. 
Whitman,\88\ Jane L. v. Bangerter,\89\ and Smith v. 
Newsome.\90\
---------------------------------------------------------------------------
    \85\ 462 U.S. 416 (1983).
    \86\ 492 U.S. 490 (1989).
    \87\ 499 U.S. 187 (1991).
    \88\ 114 F.3d 1392 (3d Cir. 1997).
    \89\ 61 F.3d 1493 (10th Cir. 1995).
    \90\ 815 F.2d 1386 (11th Cir. 1987).
---------------------------------------------------------------------------
    There are also at least nineteen State criminal statutes 
similar to H.R. 503 that currently use the term ``unborn 
child'' to refer to a fetus.\91\ Statutes such as these have 
been consistently upheld by the courts in the face of 
constitutional challenges.\92\
---------------------------------------------------------------------------
    \91\ See, e.g., Ariz. Rev. Stat. Sec. 13-1103(A)(5); Ark. Code Ann. 
Sec. 5-1-102(13)(B)(i)(a); Fla. Stat. Ann. Sec. 782.09; Ga. Code Ann. 
Sec. Sec. 16-5-80, 40-6-393.1, 52-7-12.3; 720 Ill. Comp. Stat. Ann. 
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. 609.2661-609.2665, 609.267-609.2672; Miss. Code Ann. 
Sec. 97-3-37; Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020; Nev. 
Rev. Stat. 200.210; N.D. Cent. Code Sec. Sec. 12.1-17.1-05, 12.1-17-06; 
Okla. Stat. Ann. tit. 21, Sec. 713; Pa. Cons. Stat. Ann. 
Sec. Sec. 2601-2609; 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; Wis. Stat. Ann. 
Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06, 
940.08, 940.09, 940.10.
    \92\ See, e.g., State v. Coleman, 705 N.E.2d 419, 421 (Ohio Ct. 
App. 1997); State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990); People 
v. Davis, 872 P.2d 591, 597 (Cal. 1994); and Smith v. Newsome, 815 F.2d 
1386, 1388 (11th Cir. 1987).
---------------------------------------------------------------------------
    Even feminist abortion rights advocates such as Catharine 
MacKinnon have used the term ``unborn child'' as synonymous 
with ``fetus.'' In an article published in the Yale Law Journal 
entitled Reflections on Sex Equality Under the Law,\93\ 
Professor MacKinnon conceded that a ``fetus is a human form of 
life'' that ``is alive,'' \94\ and opined that ``[m]any woman 
have abortions as a desperate act of love for their unborn 
children.'' \95\
---------------------------------------------------------------------------
    \93\ 100 Yale L.J. 1281 (1991).
    \94\ Id. at 1316.
    \95\ Id. at 1318.
---------------------------------------------------------------------------
    It is clear, then, that objections to the use of the term 
``unborn child'' in H.R. 503 are without merit. The term 
``unborn child'' has been widely used and accepted by judges, 
legislators and legal scholars, and has withstood challenges in 
the courts.

                             IV. Conclusion

    H.R. 503 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. 503 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. 503 serves vital national interests by 
extending the criminal law's protections for all human life.

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 503 on March 15, 2001. Testimony was received 
from the following witnesses: William Croston III, Charlotte, 
North Carolina; Professor Richard S. Myers, Professor of Law, 
Ave Maria School of Law, Ann Arbor, Michigan; Juley Fulcher, 
Director of Public Policy, National Coalition Against Domestic 
Violence; Robert J. Cynkar, Attorney at Law, Cooper, Carvin & 
Rosenthal.

                        Committee Consideration

    On March 21, 2001, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the bill H.R. 
503, without amendment, by a voice vote, a quorum being 
present. On March 28, 2001, the Committee met in open session 
and ordered favorably reported the bill, H.R. 503, without 
amendment, by a recorded vote of 15 to 9, a quorum being 
present.

                         Vote of the Committee

    1. An amendment in the nature of a substitute was offered 
by Ms. Lofgren and Mr. Conyers to provide additional 
punishment, up to a life sentence, for ``interruption of the 
normal course of pregnancy resulting in prenatal injury 
(including termination of the pregnancy).'' The amendment was 
defeated by rollcall vote of 13 to 20.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Texas)...............................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Hostettler..................................................  ..............              X   ..............
Mr. Green.......................................................  ..............              X   ..............
Mr. Keller......................................................  ..............              X   ..............
Mr. Issa........................................................  ..............              X   ..............
Ms. Hart........................................................  ..............              X   ..............
Mr. Flake.......................................................  ..............              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......................................................              X   ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Schiff......................................................              X   ..............  ..............
Mr. Sensenbrenner, Chairman.....................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             13              20   ..............
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Conyers and Ms. Baldwin 
to provide that the Unborn Victims of Violence Act of 2001 
would ``only take effect in fiscal years for which Congress 
appropriates 100 percent of the amounts authorized for programs 
established under the Violence Against Women Act.'' The 
amendment was defeated by a rollcall vote of 11 to 19.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Texas)...............................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Hostettler..................................................  ..............              X   ..............
Mr. Green.......................................................  ..............              X   ..............
Mr. Keller......................................................  ..............              X   ..............
Mr. Issa........................................................  ..............              X   ..............
Ms. Hart........................................................  ..............              X   ..............
Mr. Flake.......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
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......................................................              X   ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Schiff......................................................              X   ..............  ..............
Mr. Sensenbrenner, Chairman.....................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             11              19   ..............
----------------------------------------------------------------------------------------------------------------

    3. An amendment in the nature of a substitute was offered 
by Mr. Scott to require the United States Sentencing Commission 
to ``review and amend the Federal sentencing guidelines and the 
policy statements of the Commission, as appropriate, to provide 
an appropriate sentencing enhancement when a crime is committed 
in violation of title 18 of the United States Code causing 
bodily injury or death to a pregnant woman.'' The amendment was 
defeated by a voice vote.
    4. Final Passage. The motion to report favorably the bill 
H.R. 503 was adopted. The motion was agreed to by a rollcall 
vote of 15 to 9.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (Texas)...............................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................  ..............  ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Hostettler..................................................              X   ..............  ..............
Mr. Green.......................................................              X   ..............  ..............
Mr. Keller......................................................  ..............  ..............  ..............
Mr. Issa........................................................              X   ..............  ..............
Ms. Hart........................................................              X   ..............  ..............
Mr. Flake.......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............              X   ..............
Mr. Wexler......................................................  ..............              X   ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Sensenbrenner, Chairman.....................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             15               9   ..............
----------------------------------------------------------------------------------------------------------------

                      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.

                    Performance Goals and Objectives

    H.R. 503 does not authorize funding. Therefore, clause 3(c) 
of House Rules XIII is inapplicable.

               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. 503, 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, March 30, 2001.
Hon. F. James Sensenbrenner, Jr., 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. 503, the Unborn 
Victims of Violence Act of 2001.
    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.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member
H.R. 503--Unborn Victims of Violence Act of 2001.
    CBO estimates that implementing H.R. 503 would not result 
in any significant cost to the federal government. Because 
enactment of H.R. 503 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. 503 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. 503 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. 503 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 2001.
    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 further 
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. 848; and subsection (3) lists 
Section 202 of the Atomic Energy Act of 1954, 42 U.S.C. 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. 503.

         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

                TITLE 18--CRIMES AND CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


                             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 instead of being punished under subparagraph (A), 
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, 
        or a person authorized by law to act on her behalf, has 
        been obtained or for which such consent is implied by 
        law;
            (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.

919. 119. Manslaughter.

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)(A) Except as otherwise provided in this paragraph, the 
punishment for that separate offense is the same as the 
punishment provided under this chapter 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 accused 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, instead of being punished under subparagraph (A), 
be punished as provided under sections 880, 918, and 919(a) of 
this title (articles 80, 118, and 119(a)) 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 
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) 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, 
        or a person authorized by law to act on her behalf, has 
        been obtained or for which such consent is implied by 
        law;
            (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) 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.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, MARCH 28, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in Room 
2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner (chairman of the committee) presiding.
    Chairman Sensenbrenner. The committee will be in order. The 
next item on the agenda is the adoption of H.R. 503, the Unborn 
Victims of Violence Act of 2001.
    [H.R. 503 follows:]
    
    
    Chairman Sensenbrenner. The chair recognizes the gentleman 
from Ohio, Mr. Chabot, the chairman of the Subcommittee on the 
Constitution, for a motion.
    Mr. Chabot. Thank you, Mr. Chairman.
    The Subcommittee on the Constitution reports favorably the 
Bill H.R. 503 and moves its favorable recommendation to the 
full House.
    Chairman Sensenbrenner. Without objection, H.R. 503 will be 
considered as read and open for amendment at any point. The 
chair recognizes the gentleman from Ohio for 5 minutes to 
strike the last word.
    Mr. Chabot. Thank you, Mr. Chairman. I would like to 
briefly address several legal issues that have been raised 
regarding the Unborn Victims of Violence Act.
    First, questions have been raised regarding Congress's 
constitutional authority to enact this legislation. The 
challenge to the bill on this ground is completely without 
merit. It is clear the Congress has such constitutional 
authority because the bill will only affect conduct that is 
already prohibited by Federal law.
    H.R. 503 merely provides an additional offense and 
punishment for those who injure or kill an unborn child during 
the commission of one of the existing predicate offenses set 
forth in the bill. If there is any question regarding the 
constitutionality of the act's reach, that question is directed 
to the constitutionality of the predicate offenses, not H.R. 
503.
    Opponents of H.R. 503 have also argued that the bill 
somehow violates the decision of the Supreme Court in Roe v. 
Wade. This argument is also without merit. To begin with, H.R. 
503 simply does not apply to abortions. On Page 4 of the bill, 
beginning on Line 9, prosecution is explicitly precluded ``for 
any 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.''
    The act also does not permit prosecution of any person for 
any medical treatment of the pregnant woman or her unborn child 
or of the mother for any conduct with respect to her unborn 
child. The act could not be more clear in exempting abortion.
    Moreover, there is nothing in Roe v. Wade that prevents 
Congress from giving legal recognition to the lives of unborn 
children outside the parameters of the right to abortion marked 
off in that case. In establishing 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 because 
the judiciary, at this point in the development of man's 
knowledge, is not in a position to speculate as to the 
answer.''
    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. 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 and uniformly upheld 
those laws. For example, in State v. Coleman, the Ohio Court of 
Appeals stated that ``Roe protects a woman's constitutional 
right. It does not protect a third party's unilateral 
destruction of a fetus.''
    Similarly, the Minnesota Supreme Court has 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.
    In People v. Davis, the California Supreme Court was even 
more to the point in rejecting this argument, stating that `` 
Roe v. Wade principles are inapplicable to a statute that 
criminalizes the killing of a fetus without the mother's 
consent.''
    The 11th Circuit Court echoed that sentiment in Smith v. 
Newsome, holding that Roe v. Wade was immaterial to whether a 
State can prohibit the destruction of a fetus by a third party.
    Finally, opponents of H.R. 503 have argued that the bill 
lacks the necessary mens rea requirement for a valid criminal 
law, and is therefore unconstitutional. This argument ignores 
the well-established doctrine of transferred intent in the 
criminal law. Under H.R. 503, an individual may be guilty of an 
offense against an unborn child only if he has committed an act 
of violence with criminal intent upon a pregnant woman, thereby 
injury or killing her unborn child.
    Under the doctrine of transferred intent, the law considers 
the criminal intent directed toward the pregnant woman to have 
also been directed toward the unborn child. The transferred 
intent doctrine was recognized in England as early as 1576 and 
was adopted by American courts during the early days of the 
Republic. A 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 legislation.
    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.
    H.R. 503 operates on these basic and well-settled 
principles.
    Mr. Graham deserves our thanks for his work in developing 
this thoughtfully structured bill, which will help close an 
unfortunate gap in the law, and I urge my colleagues to support 
this important legislation.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Who seeks time on the minority side?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler is recognized for 5 minutes.
    Mr. Nadler. Mr. Chairman, I oppose the bill before us 
today, H.R. 503, the Unborn Victims of Violence Act, because it 
is unnecessary, misguided, and facially unconstitutional. The 
Supreme Court in Roe v. Wade clearly said, ``The unborn have 
never been recognized in the whole sense,'' and concluded that, 
```person,' as used in the Fourteenth Amendment of the 
Constitution does not include the unborn.''
    Mr. Chairman, we are going to hear a lot today about 
violence to fetuses, violence to embryos, violence to zygotes, 
violence to blastocysts. We'll hear about horrific acts of 
violence perpetrated against women at advanced stages of 
pregnancy, causing injuries to the fetus. The sponsors will 
claim, even though this bill addresses only violence against 
fetuses, that this bill is really being considered to protect 
the welfare of these women.
    We should have no illusions about the purposes of this 
bill, that it is yet another battle in a war of symbols in the 
abortion debate, in which opponents of a woman's constitutional 
right to choose attempt to portray fetuses, from the earliest 
moments of development, as children, the same rights as the 
adult women who are carrying them.
    The implication is that anyone who does not share the 
metaphysical slant, the metaphysical slant of the radical anti-
choice movement that a two-celled blastocyst is a person on 
exactly the same basis and with the same rights as any child or 
adult must secretly favor infanticide.
    This bill, by making the destruction of a fetus or even of 
a zygote a separate crime of murder, without any reference to 
the possible harm to the pregnant woman speaks volumes about 
that view. If causing a miscarriage is murder, then, by 
implication, so is abortion, the Supreme Court never mind. Even 
if the sponsors have papered over this premise with language to 
the contrary, no one should be under any illusions that this is 
the real purpose of this bill.
    Let us take the sponsors at their word. In the last 
Congress, the report of the majority of this committee made 
clear that their concern was that ``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,'' and that the 
bill's purpose was, again, ``to narrow the gap in the law by 
providing that an individual who kills an unborn child during 
the commission of certain Federal crimes of violence will be 
guilty of a separate offense.'' Providing such a separate 
offense, as opposed, for example, to making greater the degree 
of the offense, clearly recognizes and has the purpose of doing 
so, the fetus as the victim of the violence, as opposed to the 
woman being the victim, a proposition that is at odds with the 
holding of the Supreme Court and of the Constitution.
    One of the other problems with the bill is that it is 
unclear, as one of the majority's witnesses testified at the 
hearings a couple of weeks ago. Does the bill cover an embryo 
only after implantation in the womb, as it seems to say, or 
does it cover the blastocysts at conception? Put another way, 
is it only murder if you cause the miscarriage of a viable 
fetus or is it also murder if you destroy a two-celled zygote 
at the moment of conception? I will ask the sponsor that 
question during the discussion.
    I think the sponsor of this legislation should tell us 
which he means. It's a simple question and should have a simple 
straightforward answer and not the confused language in the 
bill.
    The sponsors of H.R. 503 claim that it is a crime bill. 
Yet, this bill was sent to the Subcommittee on the Constitution 
instead of the Subcommittee on Crime. The implication seems to 
be that the legislation is driven by the politics of abortion, 
rather than by any substantive effort to end violence against 
women, pregnant or otherwise. It will certainly reopen the 
debate in the context of criminal prosecutions over such 
questions as when life begins and other issues which are 
properly addressed as constitutional matters or perhaps even as 
metaphysical ones.
    Violence against a pregnant woman is, first and foremost, a 
criminal act of violence against the woman that deserves strong 
preventive measures and stiff punishment. According to an 
article in last week's Journal of the American Medical 
Association, homicides during pregnancy and the year following 
birth represent the largely preventable source of premature 
mortality among young women in the United States.
    While in the United States homicide is the leading killer 
of young women, pregnant or not, homicides of pregnant women 
occurred with much greater frequency than did homicides of all 
women.
    Mr. Chairman, it's a disgrace that while these preventable 
crimes continue to occur, Congress fiddles with largely 
symbolic legislation, rather than taking real steps to deal 
with the problem. Why, for example, did the Republican majority 
fall $200 million short of President Clinton's request for full 
funding of the Violence Against Women Act, something that might 
really help this problem? Are the members who vote for this 
legislation today going to join the rest of us in seeking full 
funding of the Violence Against Women Act in fiscal year 2002? 
Will they fight efforts to zero out, for the second year in a 
row, programs authorized by this committee last year----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent for an 
additional 1 minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you.
    Will they fight efforts to zero out for the second year in 
a row programs authorized by this committee last year to 
prevent such violence?
    No one who listened to the testimony at our subcommittee 
hearing could have been left unmoved by the terrible story of a 
young woman who was murdered by her intimate partner in the 
eighth month of pregnancy. I think we owe it to her, and to the 
many women like her, to ensure that early intervention is 
available and that States and localities receive the full 
resources for the Violence Against Women Act.
    We should also enact strong penalties, ones which are not 
constitutionally suspect for these heinous crimes, but let's 
not crowd that issue by plunging law enforcement effort into 
the murky waters of the abortion debate.
    Finally, this bill opens the door to prosecuting women or 
restraining them physically for the sake of the fetus. Some 
courts have already experimented with this approach. The whole 
purpose of Roe v. Wade was to protect the liberty interests of 
the women. This bill would undermine it.
    One more point, finally, which I think we need to 
understand. For those of us who are pro-choice, that right 
extends not just to a woman's right to have an abortion, but to 
a woman's right to carry her pregnancy to term and to deliver a 
healthy baby in safety if she wants to. That's why we supported 
the Violence Against Women Act, that's why we support programs 
to provide proper prenatal----
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Nadler. And why we support the Family Medical Leave 
Act. I suggest we not play politics with abortion and we not 
pass this bill, and I thank the chair.
    Chairman Sensenbrenner. Without objection, opening 
statements will be placed in the record.
    For what purpose does the gentleman from Michigan seek 
recognition?
    Mr. Conyers. Mr. Chairman, if there are no other 
amendments, I offer a substitute by myself and Ms. Lofgren.
    Chairman Sensenbrenner. We haven't gotten to amendments 
yet.
    Are there any amendments?
    The gentlewoman from California, Ms. Lofgren, for what 
purpose do you seek recognition?
    Ms. Lofgren. The same as the ranking member.
    [Amendment to H.R. 503 offered by Ms. Lofgren and Mr. 
Conyers follows:]


    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment in the nature of a substitute to H.R. 
503, offered by Ms. Lofgren and Mr. Conyers. Strike all----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and open for amendment at any point.
    The gentleman from Ohio?
    Mr. Chabot. Reserving a point of order, Mr. Chairman.
    Chairman Sensenbrenner. Point of order is reserved, and the 
gentlewoman from California is recognized for 5 minutes.
    Ms. Lofgren. Mr. Chairman, this amendment is very simple. 
It substitutes the Motherhood Protection Act for the Unborn 
Protection Act. This amendment, which is offered by Mr. Conyers 
and myself, recognizes that there are existing crimes in 
Federal law that protect women from violence, such as violent 
assault, but further it recognizes that when such crimes cause 
a woman to miscarry, there is an additional harm to that woman. 
This amendment provides for a crime with a sentence for that 
additional crime against a woman.
    I think it's important for us to pass this amendment and to 
adopt the extreme penalty that is provided in the amendment. As 
has been mentioned by Mr. Nadler, the bill before us is another 
attempt to whittle away at the rights of women to determine 
their own reproductive choices. I recognize that the proponents 
of this bill are sincere on behalf of their cause; namely, that 
the Government will make the choice of whether or not a woman 
has a child, not the woman. I don't agree with that position, 
but I recognize that that is a disagreement that we have in the 
committee.
    The problem with the Unborn Child Protection Act and the 
rationale for this proposed substitute is to actually take a 
step that would, in fact, provide full protection for a woman 
who suffers a miscarriage as a result an assault. The 
substitute advances protection for women, instead of advancing 
a political cause, antichoice. And I think if we are serious 
and interested in protecting women who suffer assaults, we will 
adopt this amendment.
    There was a lot of discussion that the chairman of the 
committee talked about relative to mens rea, and the like, but 
I would just like to note that the damage done, the horrible 
experience of a miscarriage is something that does deserve 
enormous protection, whether or not one knows one is pregnant. 
I will just give you a personal experience. In 1980, I--in 
December--I suffered a miscarriage. I did not know that I was 
pregnant when my fallopian tube exploded, and I had a 
terminated pregnancy. However, even though I did not know, it 
was not because of violence, that is something that one never 
forgets. One always, one's whole life, remembers what might 
have been and is no longer possible.
    On my 39th birthday, in my fifth month of pregnancy, I was 
looking forward to a third child and had a miscarriage. And, 
again, I knew I was pregnant, and it was not because of 
violence, but a miscarriage is something one never forgets. 
One's whole life a woman thinks about the child that could have 
been.
    And so when an assault is made against a woman and that 
results in a miscarriage, there is a separate offense to that 
woman. You have denied her ability to have the wanted child 
that she was carrying. That offense, that crime is huge. It is 
important, and it should be recognized under Federal law.
    This amendment will do that, and I hope that we can move 
back from the politics of division that relate to abortion and 
instead move together in a thoughtful and fair manner to adopt 
this substitute amendment that would, in fact, provide for 
protection for women who are pregnant and who have been 
assaulted and when that assault results in a miscarriage.
    So I recommend that we adopt this amendment, and I thank 
the ranking member for sponsoring it with me, and I yield back 
the balance of my time.
    Chairman Sensenbrenner. Does the gentleman from Ohio insist 
upon his point of order?
    Mr. Chabot. No, Mr. Chairman. Although we think it's a good 
point of order, we will withdraw that point of order.
    Chairman Sensenbrenner. Does the gentleman seek 
recognition?
    Mr. Chabot. Yes, Mr. Chairman. I move to strike the last 
word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    This substitute amendment should be opposed for two 
reasons: To begin with, the substitute is so ambiguous that it 
will place any prosecution for violence against the unborn in 
jeopardy.
    Second, the substitute ignores the injuries inflicted by 
violent criminals upon the unborn, transforming those injuries 
into what amounts to mere abstractions. The terminology in the 
substitute amendment is virtually incomprehensible, and if 
adopted, it will almost certainly jeopardize any prosecution 
for injuring or killing an unborn child during the commission 
of a violent crime.
    The substitute amendment provides an enhanced penalty for 
interruption to the normal course of the pregnancy, resulting 
in prenatal injury, including termination of the pregnancy. The 
amendment then authorizes greater punishment for an 
interruption that terminates the pregnancy than it does for a 
mere interruption of a pregnancy. But what exactly is the 
difference between an interruption of a pregnancy and an 
interruption that terminates the pregnancy? The substitute 
doesn't say.
    Doesn't any interruption of a pregnancy necessarily result 
in a termination of the pregnancy? And what does the phrase 
``termination of the pregnancy'' mean? Does it mean only that 
the unborn child died or could it also mean that the child was 
merely born prematurely, even without suffering any injuries? 
These ambiguities make the substitute almost impossible to 
comprehend.
    Second, the substitute amendment appears to operate as a 
mere sentence enhancement authorizing punishment in addition to 
any penalty imposed for the predicate offense. Yet the language 
of Subsection 2(b) describes the additional punishment provided 
in Subsection 2(a) as punishment for a violation of Subsection 
(a), suggesting that Subsection 2(a) creates a separate offense 
for killing or injuring an unborn child.
    This ambiguity is magnified by the fact that the substitute 
requires that the conduct injuring or killing an unborn child 
result in the conviction of the person so engaging. Does that 
mean that a conviction must be first obtained before the 
defendant may be charged with a violation of Subsection 2(a) or 
does it mean that the additional punishment may be imposed at 
the trial for the predicate offense, so long as it is imposed 
after the jury convicts of the predicate offense? Is a separate 
charge necessary for the enhanced penalty to be imposed? The 
substitute amendment simply makes no sense, and prosecuting 
violent criminals under it would be virtually impossible.
    Unlike the current language of the bill, the substitute 
also contains no exceptions for abortion-related conduct, for 
conduct of the mother or for medical treatment of the pregnant 
woman or her unborn child. This omission leaves the substitute 
amendment open to the charge that it would permit the 
prosecution of mothers who inflict harm upon themselves and 
their unborn children or doctors who kill or injure unborn 
children during the provision of medical treatment. For that 
reason, the substitute amendment is almost certainly subject to 
a constitutional challenge.
    The substitute amendment also appears to mischaracterize 
the nature of the injury that is inflicted when an unborn child 
is killed or injured during the commission of a violent crime. 
Under the current language of the bill, a separate offense is 
committed whenever an individual causes the death of or bodily 
injury to a child who is in utero at the time the conduct takes 
place.
    The substitute amendment would transform the death of the 
unborn child into the abstraction ``terminating a pregnancy.'' 
Bodily injury inflicted upon the unborn child would become a 
mere ``prenatal injury.'' Both injuries are described as 
resulting from an interruption of the normal course of the 
pregnancy. These abstractions ignore the fact that the death of 
an unborn child occurs whenever a pregnancy is violently 
terminated by a criminal. They also fail to recognize that a 
prenatal injury is an injury inflicted upon a real human being 
in the womb of his or her mother.
    If an assault is committed on a pregnant woman, and her 
unborn child subsequently suffers from a disability because of 
the assault, that injury cannot accurately be described as an 
abstract injury to a pregnancy. It is an injury to a human 
being. Our bill recognizes that; the substitute does not.
    The substitute is thus fatally flawed and should be 
rejected. The substitute amendment is so poorly drafted and 
ambiguous that obtaining a conviction of a violent criminal 
under it would be almost impossible. The substitute amendment 
is also subject to constitutional attack because it contains no 
exemption for the abortion-related conduct, for conduct of the 
woman or for medical treatment.
    And, finally, the substitute amendment ignores the injuries 
inflicted by violent criminals upon unborn children, 
transforming those injuries into mere abstractions.
    For these reasons, the substitute amendment should be 
rejected, and I yield back the balance of my time.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Michigan seek recognition?
    Mr. Conyers. To support the substitute.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. Well, without blinking an eye, no one 
supporting this bill has conceded in any way that, in fact, 
what we're doing is granting a fetus, an embryo and even a 
fertilized egg personhood, a person with rights and interests 
separate from and equal those of the mother, which of course 
exposes the whole truth of the matter already asserted by Mr. 
Nadler and Ms. Lofgren that this is a very direct attack upon 
Roe v. Wade.
    Now there are many instances in which these measures are 
the same. The bill and the substitute, it creates a separate 
Federal criminal offense for harm to a pregnant woman, and it 
continues on, but it is different in that it recognizes the 
pregnant woman as the primary victim of a crime causing 
termination of a pregnancy. It also requires a conviction for 
the underlying criminal offense, thereby requiring the intent 
to commit the underlying criminal offense be proven. It is also 
different in that it focuses on the harm to the pregnant woman 
providing a deterrent against violence against the woman.
    So what we have here now is an artful attack on a 
substitute, which on the floor, when this was brought forward, 
came within nine votes of passage. So this new attack on 
grounds of ambiguity, of unconstitutionality, of many, many 
other things is a little bit I think late in terms of the 
understanding of many of the members of the House of 
Representatives.
    This bill is similar to 503, making it a separate crime to 
violently assault a pregnant woman and thereby interrupt or 
terminate her pregnancy or injure her fetus. The substitute 
does not require that the assailant have knowledge that the 
woman is pregnant, another similarity with the bill before us.
    But the one important way in which the substitute differs 
is that it defines the crime to be against the pregnant woman, 
whereas the main bill makes the crime against the fetus. This 
distinction is the critical one because the substitute avoids 
the issue, correctly, of fetal rights and fetal personhood 
that, of course, puts the bill at odds with the major Supreme 
Court decision, and instead recognizes that it is the woman who 
suffers the injury when an assault causes harm to her fetus or 
causes her to lose the pregnancy.
    This substitute acknowledges the interconnections of the 
woman and her fetus without distinguishing the rights of one 
from the other, and so it therefore accomplishes the stated 
goals of the major bill, notably the deterrence of violent acts 
against pregnant women that cause injury to their fetuses or 
the termination of her pregnancy. But unlike H.R. 503, it does 
not--it does it in a way that avoids the controversial issues 
of abortion and the right to choose. And that's why it was very 
instructive, when I asked all of the witnesses before the 
committee that the majority brought forward, whether they 
supported Roe v. Wade, and not--surprisingly all of them did 
not support it. All of them opposed it. And I think most of the 
sponsors of the bill, even in committee, are those who have 
problems with Roe v. Wade.
    So this disguise is revealed, and a sensible alternative is 
presented to you by myself and Ms. Lofgren, and I urge its 
favorable passage.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from California, Mr. 
Issa, seek recognition?
    Mr. Issa. I rise in opposition to the bill and seek to 
strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Issa. In opposition to the amendment, to be more 
specific. Sorry, Mr. Chairman.
    I find it very disingenuous that this alternative is 
suggested when, in fact, the bill, as it is presented, is 
probably the best example of supporting what my colleague from 
California and others have said is their position on a woman's 
right to choose. A woman's right to choose is an exclusive 
right. It is a right to protect that child or to terminate that 
child. The Supreme Court did not say that this is not a child. 
The Supreme Court supported a privacy claim, very narrowly 
constructed, which I believe, if we go back and look at the 
core of the problem, the problem was a question of what is a 
mother's right over her unborn child.
    This law simply seeks to strengthen the ability for a 
mother who has been injured and whose child has been injured or 
killed to seek appropriate punishment. I think there is no 
question that it is hard for people on this side of the aisle 
and on that side of the aisle, on one side of the life question 
and the other, to come to consensus. But if there ever was a 
sensible bill, one in which each of us could, in fact, agree 
that this is a time in which the mother's right, and 
obligation, and tradition of protecting the life of her unborn 
child is essential and one in which the law has a gap in 
supporting a woman when, in fact, that life is taken without 
her permission.
    As my colleague from Michigan has said, it is often a group 
on one side that speaks on one side of this issue and a group 
on the other that speaks on the other, and I'm no different 
than anyone else on this panel. I have strong views on this. 
But I ask my colleagues, supporting the amendment, to look more 
closely at the real face of the bill, not what's in the hearts 
of those who might present it, not what's in the mind of the 
crafter, but what's in the bill.
    This bill, in a straightforward way, is going to allow for 
the punishment for those who take away a mother's right to care 
for their child, and I have no question that if you read the 
bill closely, and you put aside our petty differences over the 
final goal, forget about the goalpost and look at one single 
occurrence, you can support the bill as it is unamended.
    I relinquish the rest of my time.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Issa. I will yield.
    Ms. Lofgren. I thank the gentleman for yielding.
    I just would like to make a gentle point because I think 
the underlying bill is clearly defective constitutionally. And, 
for example, it assigns rights to a zygote that no court, and 
the Supreme Court has not allowed. And consequently, the 
protection that I believe the gentleman has said he intends, 
and I don't question his intent, will not, in fact, be 
delivered under the underlying bill.
    However, if a pregnant woman is assaulted and miscarries, 
even though her pregnancy is not developed towards a viable 
fetus, it's still an injury to that woman. It is still a lost 
opportunity that is a serious, serious harm. And that's why I 
just wanted to say I believe that the substitute amendment 
actually will provide constitutionally sound protection in that 
instance.
    And I thank the gentleman for yielding.
    Mr. Issa. Mr. Chairman, just a short followup.
    If you assume that the mother has all of the rights and 
that this is not a child, then we lose the basis on which to 
say that there is for sure additional damage. It is really only 
when you take the absence of the mother's determination to 
abort the child and link it with the child's inherent rights 
sans that determination by the mother that you create an 
individual, and additional, and severe penalty that should be, 
in fact, passed.
    Mr. Weiner. Will the gentleman yield on that point?
    Mr. Issa. Yes, I will.
    Mr. Weiner. What I'm not understanding in that explanation 
is that we do have the opportunity, in this panel and this 
Congress, to say that there has been additional harm to the 
woman because of the loss that she's had, and this is an 
additionally difficult and heinous crime, and we are going to 
increase the penalties. So we certainly can do that, and that's 
what the substitute does.
    We absolutely have the ability to raise the stakes for 
committing the crime against the woman that you describe 
without drawing into it this other element. If we're interested 
in that, I think you, and I, and members of this committee can 
pass the bill unanimously that increases the penalty for that.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Schiff. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Schiff, seek recognition?
    Mr. Schiff. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. Thank you, Mr. Chairman.
    Both the bill and the substitute seek to accomplish the 
same criminal justice purposes by using a sentencing 
enhancement for those who injure a pregnant woman. Both seek to 
deter the commission of subsequent crimes of that kind. Both 
seek to increase the punishment for those who commit the crime. 
Both seek retribution on those who have committed the crime, 
and seek to incapacitate by increasing the sentence. So all of 
the goals of the criminal justice law are satisfied by both 
bill and substitute.
    If I had to choose, as a prosecutor going into the 
courtroom, and for 6 years in Federal court that's what I did, 
and I know other members of the committee have had the same 
experience, I would choose to go into court under a statute 
less subject to constitutional attack, one, in fact, less 
likely to be challenged on constitutional grounds. Like a court 
that, given two ways to decide a case, one that requires it 
decide to a question of constitutional significance, an 
undecided question, or it can decide one on an alternative 
basis, it always prefers the alternative basis. The substitute 
has the merit of not forcing the Supreme Court to decide when 
life begins.
    All of the goals of the criminal justice system, all of the 
deterrent value that we would want, are satisfied by both bill 
and substitute, but the substitute is easier to implement in 
the courtroom, it's easier for prosecutors to use, it is less 
likely to involve a constitutional question, it is less likely 
to be struck down. And if our purpose here really is deterrence 
of these crimes and greater punishment for the perpetrator, why 
choose a statute, why choose a bill that has much greater 
likelihood of failing to survive motions to dismiss the 
prosecution or requiring extended appellate proceedings?
    We have a substitute that accomplishes all of these goals. 
As a prosecutor, the last thing that I would want to do is have 
to argue a motion about how we define an unborn child and what 
it means to refer to a member of the species, homo sapiens, at 
any stage of development who is carried in the womb, and have 
that the subject of litigation in a prosecution. And all of 
that is unnecessary if what we are after in this bill or 
substitute is deterrence and incapacitation, all of the goals 
of the criminal justice system.
    Now, if that's not what we're after, if what we're after is 
precisely what, as a prosecutor you would want to avoid and 
that is a constitutional question of first impression, and all 
of the delays and appeals attendant on that, well, then that's 
another matter. If that is the goal, then we should support the 
bill in its original form. But let's not undertake the pretense 
that this is about something other than what it is. If we want 
the Supreme Court to decide when life begins, then let's go for 
the bill. If we want a vehicle we can use to prosecute these 
cases, to put away people who commit these atrocious offenses, 
and give prosecutors another weapon in their arsenal, I urge a 
vote for the substitute.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Graham. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from South Carolina, Mr. Graham, seek recognition?
    Mr. Graham. I move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Graham. Thank you, Mr. Chairman. We had this debate 
last year, and there are some major differences between the 
substitute and the underlying bill in terms of how you reach 
justice and what you would do as a prosecutor, and I will be 
glad to go over that in a moment.
    But from the political aspect of it, Mr. Conyers mentioned 
that I think it was nine votes short for the substitute last 
year, but he forgot to tell us that the bill itself passed 
254--by 254 votes. I would argue that there's not 254 pro-
choice people in Congress. I do believe there's 254 people who 
understand that this is not about abortion, this is about 
putting people in jail to the fullest extent of the law when 
possible, and America has a disagreement over the right to 
choose.
    I'm a pro-life person, and I understand that debate I think 
very well, and I'm not going to question your religion or your 
patriotism if you disagree with me, but America seems to be 
coming together in a couple of areas. Late-term abortions, in 
the seventh, eighth, ninth month of pregnancy, most Americans 
view abortion at that point in time as something very 
uncomfortable, and they would only do that to save the life of 
the mother.
    This is a bill where a lot of Americans come together. Once 
the woman has chosen to have the baby, and the baby is lost 
through criminal activity, most Americans, I believe, would not 
consider the unborn child the enemy there, but something that 
we would want to protect and would like to put the person in 
jail. And let me tell you how the law is developing in this 
region, in this area.
    There are 11 States that have statutes just exactly like 
the bill I have proposed. And we can talk till the cows come 
home about what terminating a pregnancy means, an unborn child, 
when the twelfth week of pregnancy occurs, that's all proof 
problems that every prosecutor will face. The bill is drafted, 
I think, very legally sound in the sense that it mirrors what 
11 States have already had on the books for several years and 
have been tested. Thirteen States allow you to prosecute an 
individual who attacks a pregnant woman and destroys the unborn 
child after 12 weeks, after the embryonic stage of development, 
a different time period. Seven States have sentence 
enhancement. Now sentence enhancement, I believe, is a lawful 
way to approach this topic. I have problems with the substitute 
as drafted because I think it is vague, but you could probably 
make it work.
    Let me tell you why I think the majority of States have 
rejected sentence enhancement in this area. The Arkansas case. 
The Arkansas case that Asa Hutchinson's I think nephew brought 
to our attention last year involved a man who hired three 
people to kidnap his pregnant girlfriend because he didn't want 
to pay child support. They did that, they kidnapped her, beat 
her within an inch of her life. She was begging, while she was 
being beaten, for the protection and safety of her unborn 
child. They killed a 7-pound baby in her womb. Under Arkansas 
law, they're prosecuted as murderers, not an additional 
sentence for assaulting people. I think most people would side 
with the mother and say they murdered her unborn child.
    Now this becomes a proof problem about termination of 
pregnancy when a child is in utero, but legally you can do it 
that way if you choose. And I've chosen to do it that way 
because that's where the majority of States are coming out on 
this issue. That's where the case law is. And in my bill, we 
never can prosecute the woman, no matter what she does to the 
unborn child. We protect people who perform abortions, when the 
woman has given her consent, implied or otherwise, and the 
medical community need not worry. This is not about abortion. 
This is about putting people in jail to the fullest extent 
possible when they attack pregnant women, and the way you avoid 
getting put in jail with this bill is you don't hurt anybody.
    I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York, Mr. Nadler, seek recognition?
    Mr. Nadler. Strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you.
    Mr. Conyers. Would the gentleman yield briefly?
    Mr. Nadler. Yes, I'll yield briefly.
    Mr. Conyers. Thank you. I just wanted to let Mr. Graham 
know that his illustration that he doesn't think there are 254 
choice votes in the Congress, pro-life votes in the Congress, 
illustrates my point. We had nine--we came nine votes short of 
winning on the floor, which means that there were people of 
both persuasions that were involved, and I think it's a tribute 
to those people with common sense on both sides of this issue 
to realize that this is a much more sound approach.
    I thank the gentleman for yielding.
    Mr. Nadler. Thank you. Mr. Chairman, reclaiming my time.
    Mr. Chairman, there's been a lot said, but the essence of 
this debate really comes down to what is written in the memo 
from the National Right to Life Committee, and I'd like to read 
from that. It's talking about the Lofgren substitute, and it 
says, ``This proposal did not recognize unborn children as 
crime victims, but rather provided enhanced penalties for the 
offense of interruption to the normal course of the pregnancy. 
Such a one-victim amendment would codify the fiction that when 
a criminal assailant injures a mother and kills her unborn 
child, there has been only a compound injury to the mother, but 
no loss of any human life.''
    And then it goes on. Then it says, ``Such internal 
contradictions are produced by tortured efforts to avoid 
acknowledging what everyone really knows. These crimes have two 
victims.'' And the Supreme Court said that the unborn have 
never been recognized in the law as persons in the whole sense, 
and that ``person,'' as used in the Fourteenth Amendment, does 
not include the unborn.
    If we want to punish the assailant for killing or injuring 
the fetus, this bill will do it, the substitute will do it. The 
difference is precisely, and several members on the other side 
have acknowledged this, is precisely whether we want, for the 
first time in the law, to recognize the fetus or the zygote or 
the blastocyst as a separate person. That is the difference, 
that's the debate, and I understand those who want to do it, 
and the National Right to Life Committee is commendably honest 
in saying that that's the point of the bill and that the 
amendment is not good because it doesn't do that. I think 
exactly the opposite. Enough said on that point.
    I'm going to ask Mr. Lindsey a question--Mr. Graham, 
rather. Sorry--Mr. Graham a question. The bill does say, in 
this section, ``The term `unborn child' means a child in utero 
or child who is in utero means a member of the species homo 
sapiens at any stage of development--'' that sounds clear ``--
who is carried in the womb.''
    Now, ``who is carried in the womb'' would seem to mean 
after implantation. At any stage of development would seem to 
mean before implantation, as well as after implantation, and I 
would think that if you don't read ``who is carried in that 
womb'' to modify that and to limit to only after implantation, 
then it has no meaning at all. I would think any court would 
read it that way.
    So my question is what is the intent of the bill, and is 
the intent really to say that a two-celled, a fertilized egg, 
is a person in the legal meaning of the term and has legal 
conse--and that the full strictures of the bill should apply to 
that?
    I will yield.
    Mr. Graham. The intent of the bill is to mirror those 
statutes that have been on the books for years that recognize 
it a separate offense to attack a woman who has--who is 
carrying at any stage of prenatal development--an unborn member 
of the species, homo sapiens.
    Mr. Nadler. Reclaiming my time. I have a specific question.
    Mr. Graham. Yes.
    Mr. Nadler. Does it mean from the time of conception or 
does it mean from the time of implantation or does it mean from 
some other time? That's my only question. I'll yield for the 
purpose of answering that question.
    Mr. Graham. I think the term ``carried in the womb'' is the 
term, the operative phrase here, and it means just what we 
tried to do when we passed 417 to nothing----
    Mr. Nadler. But what is that? Tell me which it is.
    Mr. Graham. It's in the statutory language. It's a proof 
problem. I think I understand, as a prosecutor, what I have to 
prove under the statute, just like every other State that has 
this statute on the books.
    Mr. Nadler. Excuse me. A defendant has to be on notice. My 
question is, and you should be able to answer it, if someone 
kills an embryo before implantation in the womb, is that a 
violation of this statute or is it not, of this bill?
    Mr. Graham. I'd say the operative phrase is ``carried in 
the womb,'' and if it's not carried in the womb, then it would 
be no crime.
    Mr. Nadler. So it doesn't mean at any stage of development, 
only once implanted in the womb.
    Mr. Graham. What it means, Mr. Nadler, is just exactly what 
it means in 11 other States who have the laws on the books----
    Mr. Nadler. Well, I don't have those States----
    Mr. Graham. And it means exactly what we tried to do when 
we said you couldn't execute a pregnant woman. Four hundred and 
seventeen people to nothing----
    Mr. Nadler. Reclaiming my time.
    Mr. Graham. If you don't want to hear the story, I'll tell 
it later.
    Mr. Nadler. Fine. I asked a very specific--I understand--I 
understood the----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. I guess there's no clear answer then.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Pennsylvania, Ms. Hart, seek recognition?
    Ms. Hart. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Hart. Thank you, Mr. Chairman. I also ask my colleagues 
to oppose this amendment, an amendment that does not do the 
same thing as the original bill, although they do call it a 
substitute.
    Mr. Chairman, from my reading of that, what it does, in my 
opinion, is harm to legislation that is really directed at the 
general crime, and often in this case, of domestic violence.
    Mr. Chairman, it actually lists on Line 4, Page 1, Section 
2, crimes against a woman. Mr. Chairman, I submit to my 
colleagues that this is far more than a crime against a woman. 
In fact, many of these acts perpetrated against a woman who is 
pregnant are perpetrated for the very reason that she is 
pregnant. Famous cases that we've heard and that were discussed 
in our hearing, such as the Rae Carruth case, are unfortunately 
all too common in the United States. They are the extreme cases 
of domestic violence, which unfortunately, with all of the 
education that we've had of our young people, do continue in 
this world.
    Domestic violence is not always a crime against a woman 
alone, and I'm going to state that again. Domestic violence is 
called domestic violence because it is a crime against 
families. It is against other members of the family. We had 
testimony, Mr. Chairman, from a gentleman whose sister was 
murdered, along with his unborn niece. That is a crime against 
that family. That is what domestic violence is.
    I submit that Mr. Graham's legislation seeks to provide a 
further penalty against the person who commits an extreme act 
of domestic violence, resulting in possibly the death of the 
pregnant woman and additionally the death of her unborn child. 
This substitute, in no way, substitutes sufficiently enough 
penalty to basically deter any perpetrator from such an extreme 
violent act.
    Also, I would like to mention, Mr. Chairman, that as a 
State Senator in Pennsylvania, I was able to participate in 
similar discussion on legislation that we passed in 1998. I 
would submit to my colleagues that at that time we had, I 
believe, 45 votes out of 50 for the legislation, worded in a 
very similar manner, with the same intent. There were, by no 
means, 45 pro-life State Senators in that body at the time.
    This is not an issue of abortion. This is an issue, as I 
submit, to my colleagues, I believe, of extreme domestic 
violence. It is a violence against a pregnant woman, yes. It is 
also a violence against a family, it is a violence against a 
child, it is a violence that if we do not punish it more fully 
will, unfortunately, continue to proliferate in this country.
    I yield back the balance of my time.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas seek recognition?
    Ms. Jackson Lee. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the chairman very much, and I rise 
to support the Conyers-Lofgren substitute, frankly, because 
this is what it is. It is an emotionally charged issue. It is 
an attempt, on an ongoing and continuous basis, to ignore the 
constitutional right to choose under Roe v. Wade.
    I must remind my colleagues that individual State actions 
are different from the responsibility of this Judiciary 
Committee that serves as the body that governs laws for all of 
the people of the United States of America. There's nothing 
more emotionally disturbing and riveting for a mother to lose 
her child, for a mother to lose the ability to be a mother, for 
the mother involuntarily to have that taken away from her, and 
maybe from the entire family.
    I'm reminded of sitting here in this room, with 
Congresswoman Pat Schroeder, who is not here, as we listened 
year after year of the pain that was exhibited by those women 
who came forward expressing the need for a medical procedure 
dealing with the termination of a pregnancy that would then 
allow them to have a child in the future. That was called my 
colleagues on the other side of the aisle partial birth 
abortion.
    That moved throughout this Congress consistently labeling 
those of us who had a different view; that is, that we wanted 
the choice to be with mom, and family, and the religious 
leader, and physician. And I think this amendment gets to the 
point of what my colleagues are trying to express, and I only 
wish that we would understand the value of the Constitution and 
the existing federally constituted law, and that is the law of 
Roe v. Wade.
    We can pass this legislation, under the Conyers and Lofgren 
amendment, and we can answer the question of my colleagues. For 
example, we can answer the questions of the United States v. 
Robbins, Supreme Court, where an airman on an Air Force base 
brutally beat his wife, she survived, but the little 8-month, 
not-yet-termed Jasmine, that was named, did not survive in the 
mother's womb. Under the legislation, both with the Conyers 
amendment, which cites an assault provision, that particular 
incident, that tragic incident, the unwillingness of that 
mother to have lost that unborn child, would have been covered 
by this substitute, for the substitute provides and protects a 
woman and punishes the violence resulting to injury or 
termination of pregnancy. How clear can we get?
    You already heard a prosecutor, who has been in the 
courtroom for a number of years--many of us have served in 
similar capacities--be able to say that that is clear on its 
face. You have injured the woman, which has resulted in the 
injury or termination of a pregnancy. And additional, this 
provides for a 20-year-sentence for injury, but a maximum of 
life for death in the instance of the termination of a woman's 
pregnancy.
    The clear deciding difference that we have in the 
legislation offered by my friends on the other side of the 
aisle, and I think it's fair to say that this is going to the 
very heart of the emotions and heartstrings of America. Of 
course, in various State legislatures, where they do not have 
the responsibility to speak for the vastness of the Nation, it 
is easy to pass legislative initiatives such as that.
    When I was in local Government, we rarely had divide over 
these kinds of issues because there were more likeness of point 
of view, little attention to constitutional soundness. The 
responsibility of the Judiciary Committee is constitutional 
soundness. This is not constitutionally sound. And the tragedy 
of this is that time after time we come here, and rather than 
forthrightly say let's put the amendment on the table to undo 
Roe v. Wade, we chip, chip away, and we dangerously undermine 
the rights of women and the rights of Americans who quietly 
remain in their homes not protesting, not speaking out loud, 
supporting the right to privacy and the right of Roe v. Wade.
    I can tell you that we have all experienced a tragedy. 
Those of us who are women have had, in our lives, tragedies 
dealing with the losing of a child.
    Ms. Jackson Lee. Fathers have lost and felt this experience 
from a different perspective. So I simply say that can we not 
come together, can we get along and support the substitute 
which responds to the concerns that are being expressed I 
believe fairly and justly that gives you both relief, that 
provides the punishment for that brutal person who would 
terminate or injure that pregnancy and yet protects what is 
constitutionally our right, which is the Roe v. Wade decision 
that has yet been undermined.
    Now, let me just conclude, Mr. Chairman, by simply saying 
that we know the journey of this legislation at this point. It 
is now attempted again so that it will go through I assume the 
Senate if it takes it up, and we know what the results will be 
with the new Administration. How tragic, and I hope that those 
who have expressed themselves at the polls understand what 
votes mean today. It means that constitutionally sound law that 
have been the law of the land for years and years and years now 
will be undermined because of someone's failure to count a vote 
or someone's failure to vote. It's a tragedy. I frankly believe 
that the Lofgren and Conyers substitute is constitutionally 
sound, but more importantly, it provides the relief that the 
present H.R. 503 does not.
    Chairman Sensenbrenner. The gentlewoman's time has expired. 
The question is on the amendment in the nature of a substitute 
offered by the gentlewoman from California, Ms. Lofgren. Those 
in----
    Mr. Conyers. Record vote.
    Chairman Sensenbrenner. Record vote is requested. Those in 
favor will, as your names are called, answer aye; those 
opposed, no; and the Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, No. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Pass.
    The Clerk. Mr. Watt, pass. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. The gentleman from North Carolina?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Alabama.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Chairman Sensenbrenner. The gentleman from Arkansas.
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no.
    Chairman Sensenbrenner. The gentleman from Indiana.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Meehan. Aye.
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. Mr. Chairman, I change my pass to aye.
    Chairman Sensenbrenner. The gentleman from California.
    Mr. Issa. No.
    Chairman Sensenbrenner. Are there any additional members in 
the room who wish to record their vote or to change their vote?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 13 ayes and 20 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments? The gentleman from Michigan, 
Mr. Conyers.
    Mr. Conyers. I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Mr. Chairman, I do not have--amendment to H.R. 
503 offered by Mr. Conyers and Ms. Baldwin. Add at the end the 
following: Section 4----
    Mr. Conyers. I ask unanimous consent the amendment be 
considered as read.
    [The amendment to H.R. 503 offered by Mr. Conyers and Ms. 
Baldwin follows:]


    Chairman Sensenbrenner. Without objection, and the 
gentleman is recognized for 5 minutes.
    Mr. Conyers. Members of the Committee, this follows the 
discussion about the Violence Against Women Act full funding, 
and this is a full-funding amendment that I offer that would 
make the effective date of the bill contingent on full funding 
programs authorized by the Violence Against Women Act.
    Most of us here last Congress remember that this Committee 
unanimously passed the Violence Against Women Act and the House 
overwhelmingly approved the same measure by a vote of 415 to 3. 
But unfortunately, the Violence Against Women Act authorized 
over $677 million to be spent on programs to combat domestic 
violence and sexual assault in the Fiscal Year 2001, the 
amounts appropriated in that same budget are more than $200 
million short of the authorization levels, and this disparity 
is inexcusable, and I am hoping that we here would ensure that 
VAWA is fully funded in the next year's budget.
    Now, although VAWA authorized $235 million for the stop 
grant program, less than $210 million was appropriated for this 
purpose. So even though the authorization had an increase in 
funding in real terms, there was actually less money 
appropriated for stop grants than there was for the past 2 or 3 
years. We all know that this wasn't the intent of the VAWA 
reauthorization.
    In addition, there was no money appropriated for new 
programs created by VAWA reauthorization legislation. This 
includes programs that were proposed and passed on a bipartisan 
basis by this Committee, such as protections for older and 
disabled women, education and training for judges and court 
personnel, the Domestic Violence Research Task Force and 
supervised visitation centers.
    We know that VAWA is the lifeblood for shelters and 
services, victims of violence throughout the country, and we 
also know that the Violence Against Women Act works. Since the 
passage in 1994, we have seen a reduction in levels of sexual 
assault and domestic violence.
    So before we criminalize injury to even a fertilized egg, I 
hope that we would make sure that there's full funding for the 
bipartisan Violence Against Women Act programs that truly help 
prevent domestic violence. Please support the amendment.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. Does the gentleman yield back the 
balance of his time?
    Mr. Conyers. Yes, of course.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I will be relatively 
brief.
    Most of us on this side do clearly support the Violence 
Against Women Act but there's absolutely no reason to tie 
funding to that particular bill to this legislation.
    Our purpose in the bill that has been proposed by Mr. 
Graham is to protect pregnant women who are viciously attacked 
by criminals and to also protect the unborn children that 
they're carrying.
    Domestic violence is clearly a serious problem in this 
country. There is a congressional role most of us believe and 
have supported that in the past and will continue to support in 
the future, but there's absolutely no reason to tie these two 
together. For that reason, I oppose this amendment and yield 
back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Delahunt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Delahunt. I speak in support of the amendment and I 
want to speak to the issue that I think was raised by the 
gentlewoman from Pennsylvania regarding the efficacy of this 
act in terms of domestic violence, and I really believe it's 
important that the American people understand that what we do 
here in terms of the underlying bill will have absolutely no 
impact at all in terms of deterrence, in terms of deterring 
those who would commit a violent act upon a woman whether the 
woman was pregnant or whether she was not pregnant.
    The issue of domestic violence is an issue that I have been 
committed to for some 26 years. I was a former State's Attorney 
in a large metropolitan jurisdiction outside of Boston. We 
initiated the first domestic violence program in the United 
States, and it is very clear that the resources that have been 
authorized by VAWA have made a difference in terms of domestic 
violence and assaults and violence against women, whether they 
be pregnant or whether they be not pregnant.
    So let's not suggest that the underlying bill will in any 
way deter violence against women, because it will not; and 
again, I urge my colleagues to support the Conyers amendment 
and yield back.
    Chairman Sensenbrenner. The question is on the Conyers 
amendment.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, I support this amendment. It 
seems to me that the amendment goes to the heart of the real 
purpose of the bill. If the real purpose of the bill is to deal 
with assaults against women, then we ought to be fully funding 
the real preventive programs in the Violence Against Women Act. 
If the real purpose of the bill is something else, as for 
example to define human life in a way to undermine Roe v. Wade, 
if that's the real purpose of the bill, then obviously the 
Violence Against Women Act doesn't have too much relevance to 
it and this amendment really doesn't advance the purpose of the 
bill.
    But if the real purpose of the bill is that we have to help 
women who are attacked, that we're upset about, in particular, 
the attacks on pregnant women, the damage to women and the 
fetuses they carry, then obviously we would want to fully fund 
the Violence Against Women Act and anything that we could do to 
prod our colleagues into doing that such as this amendment, 
which really brings it into stark outline, advances the purpose 
of the bill.
    And let me remind you of the finding of the Journal of the 
American Medical Association last week that pregnancy-
associated death represents a largely preventable source of 
premature mortality among young women in the United States and 
devastates the children, families, communities left behind. 
Largely preventable sources of premature mortality among young 
women in the United States.
    I would hope that we would pass this amendment. I hope we 
don't--I should be very clear, not disingenuous--I hope we do 
not pass the bill, but if we're going to pass the bill, at 
least we can do something constructive in this bill by 
associating it with an attempt to get adequate funding for 
things that will really help in this battle against domestic 
violence.
    I thank the Chairman. I urge my colleagues to support the 
amendment and I yield back.
    Mr. Graham. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from South Carolina seek recognition?
    Mr. Graham. Strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Graham. And I know we're all ready to vote, but I do 
believe there is a deterrent aspect to this bill versus waiting 
or doing sentence enhancement, and it doesn't allow the use of 
the death penalty because I did not want to get in that debate 
when I drafted the bill; I wanted to try to bring the Congress 
together the best I could and avoid issues like the death 
penalty.
    But the Arkansas case I think is a good illustration. The 
people who kidnapped the pregnant woman and beat her for money 
so that the man would not have to pay child support are on 
death row in Arkansas. Maybe the next time someone comes along 
and offers people to beat up pregnant women, they'll turn down 
the offer because the consequences are too great.
    My bill doesn't allow for the death penalty, but we're 
trying to make the consequences of a violent assault in society 
against pregnant women and protect the unborn coexist together, 
not inconsistent with Roe v. Wade. I think it does add a great 
deal of deterrence to have two separate offenses. I think any 
prosecutor, as the Air Force did in Ohio by incorporating the 
Ohio law through the Crimes Act, would relish the opportunity 
to prosecute the offender twice, not once, for something this 
brutal and this bad.
    And the point is to do justice, to bring the full force of 
law as we can and view it to be appropriate, and this amendment 
doesn't do justice. This is politics, I think, at its worst and 
I would ask you to reject it.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. rollcall.
    Chairman Sensenbrenner. rollcall is ordered. Those in favor 
of the Conyers amendment will as your names are called answer 
aye; those opposed no; and the Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, No. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. No.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. No.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Scarborough.
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. No.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus.
    Mr. Bachus. No.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Aye.
    Chairman Sensenbrenner. Are there additional members in the 
chamber who wish to record their vote or change their vote?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are eight--eleven ayes and 
18 nays.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler.
    Mr. Hostettler. If I may be recorded, Mr. Chairman, no.
    Chairman Sensenbrenner. The Chair has not announced the 
result of the vote. Mr. Hostettler votes no.
    The Clerk. Mr. Chairman, there are eleven ayes and 19 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments? The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment in the Nature of a Substitute to H.R. 
503 Offered by Mr. Scott.
    Mr. Scott. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    The gentleman from Ohio reserves a point of order and the 
gentleman from Virginia is recognized for 5 minutes.
    [The Amendment in the Nature of a Substitute to H.R. 503 
offered by Mr. Scott follows:]


    Mr. Scott. Mr. Chairman, this amendment is an attempt to 
solve a serious problem, and that problem is violence against 
pregnant women.
    Last week's issue of the Journal of the American Medical 
Association reported on a study of pregnancy-related mortality 
in Maryland over a 5-year period. The findings were stunning.
    The American Medical Association found that the leading 
cause of death among pregnant or recently pregnant women was 
homicide. Homicides made up 20 percent of all pregnancy-related 
deaths, twice the rate of cause of death of non-pregnant women, 
and more than twice as many deaths as embolisms, which was in 
second place.
    Maryland's study was consistent with other studies. It 
showed that pregnant women are at increased risk for domestic 
violence. And so for pregnant women, threats from social--
threats from the social envelope, such as homicide and domestic 
violence, are at least as dangerous as those from the 
biological envelope.
    Violence against pregnant women devastates not only the 
women involved, but also children, families and communities. It 
is a largely preventable problem that we should be able to 
address without engaging in a debate over abortion or the 
philosophical issue of when life begins, and we should be able 
to do it without creating additional categories of victims.
    I believe the simplest way to address the problem is with 
sentencing enhancements to take into account those situations 
where the victim of a crime is a pregnant woman. Sentencing 
enhancements offer the opportunity to take into account a 
number of different factors such as whether the pregnancy was 
interrupted or terminated, or whether the crime was 
specifically intended to interrupt or terminate a pregnancy.
    Mr. Chairman, this amendment addresses several of the 
concerns articulated by the gentleman from Ohio because it has 
exceptions for cases where it's an abortion or the conduct of 
the pregnant woman. The sentencing enhancements would not apply 
to conduct relating to abortion or the conduct relating to 
provisions for medical treatment or the conduct of the pregnant 
woman as addressed by the gentleman from Ohio as concerns.
    I suggest that we take a reasonable approach to the serious 
problem of violence against pregnant women, and I ask that you 
support this amendment in the nature of a substitute so we can 
address the problem of violence against pregnant women that the 
American Medical Association has found to be a serious threat.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition? The gentleman from Ohio wishes to 
press his point of order?
    Mr. Chabot. Mr. Chairman, as before, I'll withdraw my point 
of order at this time.
    Chairman Sensenbrenner. Okay. Does the gentleman move to 
strike the last word?
    Mr. Chabot. I do, Mr. Chairman.
    Chairman Sensenbrenner. He is recognized for 5 minutes.
    Mr. Chabot. Thank you very much, Mr. Chairman.
    This substitute amendment should be opposed for a couple of 
reasons. The substitute, as the first amendment made today was, 
is ambiguous. We believe it would place any prosecution again 
against the unborn in jeopardy. Second, the--against violence 
against the unborn in jeopardy.
    In addition to that, the substitute ignores the injuries 
inflicted by violent criminals upon the unborn, transforming 
these injuries, as I said before, we believe into mere 
abstractions. The terminology in the substitute amendment is 
very difficult and, if adopted, it would almost certainly again 
jeopardize any prosecution for injuring or killing an unborn 
child during the commission of a violent crime.
    The substitute amendment would authorize an enhanced 
penalty for interruption or termination of a pregnancy. Again, 
it's difficult--what exactly is the difference between an 
interruption of a pregnancy and an interruption that terminates 
a pregnancy? The substitute really doesn't address that. It 
doesn't--wouldn't any interruption of a pregnancy necessarily 
result in termination of the pregnancy? Does terminate mean 
only that the unborn child died, or could it mean that the 
child was merely born prematurely even without suffering 
injuries? These ambiguities make the substitute very, very 
difficult to understand and we think that if it were attacked, 
there is a good chance that it would be overturned.
    The substitute amendment also appears to mischaracterize 
the nature of the injury that is inflicted when an unborn child 
is killed or injured during the commission of a violent crime.
    Under the current language of the bill, a separate offense 
is committed whenever an individual causes the death of or 
bodily injury to a child who is in the womb at the time the 
conduct takes place. The substitute amendment would transform 
the death of the unborn child into again what we consider an 
abstraction, terminating or interruption of a pregnancy.
    These abstractions ignore the fact that the death of an 
unborn child occurs whenever a pregnancy is violently 
terminated by a criminal. They also fail to recognize that a 
prenatal injury is an injury inflicted upon a real human being 
in the womb of his or her mother.
    The substitute is thus fatally flawed and should be 
rejected. The substitute amendment we believe is not very well 
drafted and ambiguous. No offense to the maker of the 
amendment, but obtaining a conviction of the violent criminal 
under this would be very difficult.
    The substitute amendment ignores the injuries inflicted by 
violent criminals upon unborn children, again, as we said, 
transforming them into what we think are mere abstractions.
    Moreover, the substitute would only authorize a mere 
sentence enhancement when the victim of a violent crime is 
pregnant, and 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 pregnant woman, 
the base offense level for the offense under sentencing 
guidelines is 15, which carries a sentence of between 18 and 24 
months if this were a congresswoman, for example, because these 
are Federal predicate statutes.
    If the congresswoman were pregnant and her unborn child 
were 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.
    The permissible range of punishment for the assault would 
thus increase only by an additional 6 months, and we think that 
that's just totally inappropriate, especially 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, and for 
these and many other reasons, the substitute amendment should 
be rejected. And I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York, Mr. Weiner, seek recognition?
    Mr. Weiner. To briefly strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. I have a great deal of respect for my good 
friend from Ohio, but I just--I find it a tad ironic to 
criticize the amendment for its level of abstraction when the 
base bill seeks to define human beings as a--seeks to define 
zygotes or blastocysts or embryos as human beings and begin 
this what is clearly a philosophical debate about when life 
begins.
    I mean, there are reasons that you can support the base 
bill and oppose the substitute. You can say that we want to 
have, in the context of the 66 laws that are in the books just 
under USC 18 that this might impact, we want to have a debate 
about abortion in every single one of them; you can say that we 
want to spur another level of debate about when a life--when 
life begins; and you can say that I believe very strongly even 
if it jeopardizes prosecutions, as my good friend from 
California pointed out earlier, we still want to do it. But to 
say that you oppose the amendment because it raises this debate 
to a level of abstraction is a little bit absurd.
    The whole point of the base bill is to raise to the level 
of--to raise to level of person a zygote. I mean, if that isn't 
an abstract notion, then I think that nothing is.
    The fact remains and I think that it has been put here 
several times that if your objective is to punish someone and 
to throw the book at someone and to whack them with the full 
force of law, then there are many, many ways that we can do 
that that do not get into the morass that the bill gets us 
into.
    You can increase the--if you don't like the sentencing 
guideline language that's in this substitute and you want to 
ratchet it up another notch, I can tell you I would probably 
vote for an amendment that you can offer for that purpose. If 
you think that there should be that a life sentence isn't 
enough, you want to have two life sentences, or five life 
sentences, or 900 years sentences for doing violence against 
women, I think we could have a debate and I would probably be 
willing to support you. I have never voted against an effort to 
increase the penalties for violating--for committing crimes 
against women.
    But the fact remains that if you're wedded to the idea 
about having a debate about when life begins, then this is the 
way to do it, the base bill is the way to do it. If you really 
want to do something, if you want to increase the penalties, 
then we're essentially offering you anything possible that will 
allow you to do that.
    But if you want to have abstraction to the nth degree, if 
you want to have when they're having a trial about whether or 
not someone threw scalding water within a special maritime 
jurisdiction in the United States and you think that we should 
also have a debate about abortion in that context, then you 
should not vote for the amendment, you should vote for the base 
bill.
    If you want to have a--in the context of prosecution about 
tampering with the consumer products that affects interstate 
commerce and you think we should have, in the context of that 
trial, we should have a discussion about whether a zygote or an 
embryo constitute a human life, then you're right, you should 
not support this amendment, you should support the base bill.
    And I got to tell you, I'm not really sure why the sponsors 
are stopping here. Why not simply amend all references to 
person in the entire US Code and substitute zygote? Let's do 
that. Why even stop here, why stop and just--I mean, if that's 
really what the purpose of the debate is from the perspective 
of the sponsors, then substitute it throughout. Never mind just 
18 USC and a few spots in 21 USC or 42 USC, let's substitute 
all throughout, let's have every single prosecution of every 
single Federal law ever brought. Also, it should have an 
abortion debate within it. That seems to be the objective of 
the sponsors of the base bill.
    I yield back my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Just so that members can make their plans, let me state 
that it is the Chair's intention to recess the Committee at the 
time of the next vote on the floor, which is anticipated to be 
within the next 15 minutes, and to come back at two o'clock to 
complete the calendar.
    For what purpose does the gentleman from South Carolina 
seek recognition?
    Mr. Graham. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Graham. I would ask my colleagues to oppose the 
amendment, but I do appreciate my colleague from Virginia 
bringing out a disturbing fact, that one of the leading causes 
of death is murder among young pregnant women, and that there 
was a study done in the District of Columbia of women who were 
killed between--in an 8-year period, and they went back through 
the autopsy records and found that 30 of them were pregnant and 
they're beginning to find that one of the common problems in 
these cases is that boyfriends--domestic violence abuse 
situations result in their death, and they're afraid that the 
pregnancy may be part of the motivating factor. So we've 
defined the problem as a growing problem in America. Now what 
to do about it?
    Now, my good friend from New York, I just ask you to read 
the statutes on the books. There are seven sentencing 
enhancement statutes that talk about terminating a pregnancy. 
When a pregnancy begins is defined in the law in those statutes 
and prosecutors have to prove that a pregnancy was interrupted 
resulting in a termination.
    I have chosen another course. I have chosen the larger body 
of law that allows someone to be prosecuted for criminal 
activity when they assault a pregnant woman, for any damage 
done to unborn child at the earliest stages of development, 
being carried in the womb, and that's what the prosecutor would 
have to prove. In eleven States, they do that fairly routinely.
    But the problem is growing, and I would ask you for a 
moment not to look at this through the eyes of an abortion 
advocate or a pro-life person, but to go into the testimony 
that we've acquired over the last couple of years from the 
families involved in situations that occur where the mother is 
killed carrying an unborn child wanted by the mother and the 
father.
    Michael Lenz lost his wife and unborn baby boy in the 
Oklahoma City bombing in April 1995. His unborn son's name was 
Michael James Lenz III, and his wife had just brought in 
pictures of the unborn child ultrasound images in the office 
the week before and she got to work particularly early that day 
and we all know what happened in Oklahoma City.
    And he came to us and tell--to tell us that, ``I'm not a 
Republican, I'm not a Democrat, I'm not here to talk about the 
abortion debate; I'm here to tell you that I believe that I 
lost my son and the person who took my son away from my wife 
and myself was not fully punished, and when you list the 
victims in the Oklahoma City bombing, I wish you would put 
Michael James Lenz III.''
    We had a gentleman come in from North Carolina, William 
Creston, who said that his niece--excuse me--his sister, 
Ruthie, and her unborn child were murdered by her boyfriend, 
and he said, ``I'm not a Democrat, I'm not a Republican and I'm 
not a lawyer, but our family grieves for the loss of that 
unborn child that was murdered.'''
    I would argue to my friends on the other side that if you 
really want to address this problem, let's bring the full force 
of the law down on the heads of people who do this.
    I yield back the----
    Mr. Delahunt. Would the gentleman yield? Lindsey, would you 
yield for a minute?
    Mr. Graham. Yes. Yes.
    Mr. Delahunt. I would just pose the question, the one that 
I did earlier in the debate. Let me pose it to you. When you 
say bring the full force of the law down upon the offender, I 
presume what you're saying is that there is--that society has a 
right to punish, and that there is a right to--a legitimate 
right, a legitimate right in a justice context to seek 
retribution. But in any of these cases, would you claim that by 
passing this particular bill that's before us, that it would 
serve as a specific deterrent, whether it be Timothy McVeigh in 
Oklahoma or whether it be any other perpetrator? Because I 
believe, from my own experience, that first, a potential 
assailant in a domestic violence situation is not--first of 
all, he's not going to be aware of this particular bill, this 
particular proposal. You and I both know that most criminals do 
not carry with them a compendium of the criminal statutes of 
the United States Code.
    On top of that, clearly this act itself--and if you're 
claiming that punishment is appropriate or enhanced punishment 
is an appropriate response by society to these acts, I can 
understand that.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from North Carolina, 
Mr. Watt, seek recognition?
    Mr. Watt. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. I'll yield a minute to Mr. Delahunt to finish his 
point if he wants to.
    Mr. Delahunt. Yes. I just would--I would pose that to my 
friend and colleague from South Carolina. I'm aware of no 
evidence whatsoever, either anecdotal or empirical, that would 
indicate that anything that we do in that regard would deter an 
assault, an attack.
    Mr. Graham. Will the gentleman yield? Would the gentleman 
yield?
    Mr. Watt. I'm going to yield to Mr. Graham so he can 
respond.
    Mr. Graham. Thank you.
    I would agree with the gentleman along with the idea that 
crimes of passion we need to punish to the fullest extent of 
law, and the deterrent factor when you have crimes of passion, 
I don't know the effect of the punishment regime. Crimes for 
hire, which we've had two cases brought before the committee 
where people hired to attack the pregnant woman, shoot her, 
beat her to make sure the person doesn't have to pay child 
support, there would be a deterrent effect there.
    But the whole idea is to do justice, and we can have a 
discussion about that, but I do believe very sincerely that the 
best way to do justice is to look at this through the eyes of 
the families who have lost not only the mother but the unborn 
child and to bring the full force and effect of the law on the 
perpetrator, and over time, hopefully that will make people 
think differently. I hope so. But I know from the justice point 
of view that we're falling well short when we just enhance 
punishment.
    Thank you.
    Mr. Watt. Reclaiming my time, Mr. Chairman, my intent was 
to speak on this amendment independently, but Mr. Scott's 
arguments I think adequately express my sentiments on this. He 
has acknowledged that there is a real problem that exists. The 
amendment tries to deal with that problem in a way that gets us 
outside the context of this whole abortion, when-life-begins 
debate and is a reasonable way to deal with it, and I fully 
support his amendment.
    And I'll yield to Mr. Scott.
    Mr. Scott. Thank you. Thank you and I thank the gentleman 
for yielding.
    I just wanted to respond briefly to comments made by the 
gentleman from Ohio when you said that this might complicate 
the prosecutions. There is no complication on the prosecution. 
If you get complicated and lose your argument on the pregnancy 
related, you might lose the enhanced penalty, but you're not 
going to lose the underlying conviction. There is no 
transformation into abstraction; it's transformed into 
additional time that's real time, and I would hope that the 
committee would accept this as a logical way to address a 
serious problem.
    I yield back.
    Mr. Watt. And I'll yield the balance of my time to Ms. 
Lofgren.
    Ms. Lofgren. Thank you.
    I--just a note on that amendment. I preferred the earlier 
amendment of Mr. Conyers and myself, but I certainly can 
support Mr. Scott's amendment for the following reason. It 
really actually provides much greater protection for women and 
to prevent assaults resulting in miscarriage than does the 
underlying bill.
    If you read through what the Supreme Court has said about 
prenatal status, prior to viability, the States' interest as 
expressed by the Supreme Court is less than post-viability. 
Under this amendment, even those women whose pregnancy had not 
actually progressed to viability would gain protection from 
assault that resulted in miscarriage, and I think that is 
appropriate because such an assault does tremendous damage and 
harm to a woman who is intending and wants to have a child, and 
I think this amendment would actually accomplish something that 
the underlying bill does not.
    I did want to make one additional comment. Someone on the 
other side of the aisle suggested that people who are pro-
choice are proponents of abortion. In fact, that is not 
correct. I am someone who is pro-choice, someone who believes 
that individual women ought to make decisions about their 
fertility, not the United States Congress, and that goes in 
both directions--women who decide that they need to terminate 
the pregnancy and women who decide that they want to have a 
child. That's what choice is about, the women's choice, not 
Congress' choice.
    And I yield back the balance of the time to Mr. Watt.
    Chairman Sensenbrenner. The gentleman's time----
    Mr. Watt. I yield back.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The question is on the amendment in the nature of a 
substitute offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say aye.
    Opposed, no.
    The no's appear to have it, the no's have it and the 
amendment is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I would like to ask the sponsor of 
the bill a question just to clarify legislative intent.
    On page 4 of the bill, on line 7 through 13, you have 
essentially exempted from prosecution cases relating to an 
abortion for which the consent of the pregnant woman has been 
ascertained. On page 4, on line 7 through 13.
    Mr. Graham. What was the purpose of that language?
    Mr. Scott. And my question is the consent of the pregnant 
woman is really a term of art, and I assume it's not your 
intention to ensnare a physician--page 4, line 7 through 13--I 
assume it is not your intention to ensnare a physician who 
violates a parental consent law or something like that, that 
you really mean permission of the pregnant woman and not to 
have the physician ensnared for a murder charge by having 
violated the informed consent law of a particular State. What 
is the--is that the intent?
    Mr. Graham. Yes. My intent is to make sure that people who 
are following the law of the State or the jurisdiction in 
question who are performing an abortion as recognized by law 
and providing medical treatment not be prosecuted.
    Mr. Scott. Okay. My question is if you have someone who has 
violated, intentionally or unintentionally, a parental consent 
law, so that technically the physician does not have the 
consent of the patient, would they be in trouble with their 
medical license, civil liability, or would they be looking at a 
murder charge?
    Mr. Graham. Well, if a person violated a law intentionally 
requiring that you not perform an abortion under certain 
circumstances without approval of someone else and they didn't 
seek that approval, then they basically would be violating--
violating the law.
    Mr. Scott. Let me get it directly, then. If you have a 17-
year-old in a parental consent State that lies about her age, 
the doctor did not get the consent although he got permission, 
would he be looking at a murder charge under this bill?
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I will yield to the gentleman from Ohio.
    Mr. Chabot. Thank you for yielding.
    There would have to be an underlying Federal offense, a 
predicate offense in order for this proposed legislation to 
have any effect at all, and unless an underlying Federal 
offense has been committed, this would not have any impact 
whatsoever.
    Chairman Sensenbrenner. The Chair would like to report the 
bill before we go and vote. Mr. Conyers kind of feels the same 
way, too.
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The question is on reporting the bill favorably. I'm sure a 
rollcall will be demanded, so the Clerk will call the roll. 
Those in favor will signify by saying aye; those opposed no.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. Yes.
    The Clerk. Mr. Cannon, yes. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. Aye.
    The Clerk. Mr. Scarborough, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional members in the 
room who desire to cast, change their votes?
    The gentleman from Virginia.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Chairman Sensenbrenner. Anybody else who wishes to record 
or change their vote?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 15 ayes and 9 nays.
    Chairman Sensenbrenner. And the motion to report is agreed 
to. Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
All members will be given 2 days as provided by House rules in 
which to submit additional dissenting, supplemental or minority 
views.
    The Chair is about ready to recess the Committee until two 
o'clock in the afternoon. The remaining bill on the calendar 
has strong bipartisan support. I do not believe it will be very 
time-consuming and I would encourage all members to return 
promptly at two o'clock so that we can finish the business 
today and move on.
    So without objection, the Committee is recessed until two.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. The 
Chair notes the presence of a working quorum.
    The Chair recognizes the gentlewoman from Texas to strike 
the last word.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I was detained at the Capitol as you were voting on H.R. 
503. Prior to the final vote, I would have offered an amendment 
that I had at the desk dealing with striking the language ``of 
unborn children''' and inserting ``against violence during 
pregnancy.''' I hope to be able to offer that amendment to the 
Rules Committee which I believe is a fair compromise that 
protects a woman who may have destructive conduct of not eating 
or not taking the appropriate medication, that that individual 
would not be subject to H.R. 503.
    I hope my colleagues will join in the support of the 
amendment that I would offer at the Rules Committee, but at 
this time, Mr. Chairman, I would like to submit into the record 
a statement on that amendment. I ask unanimous consent to 
submit that statement into the record.
    Chairman Sensenbrenner. Without objection.
    [The amendment to H.R. 503 offered by Ms. Jackson Lee 
follows:]


    Ms. Jackson Lee. And I would like to have noted for the 
record in my absence for the final vote that if I had been 
present, I would have voted no for H.R. 503.
    Chairman Sensenbrenner. Without objection, the statement 
will----
    Ms. Jackson Lee. I yield back. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Pursuant to notice, the next----
    Ms. Jackson Lee. Thank you, Ranking Member.
                            Dissenting Views

    Acts of violence against women, especially pregnant women, 
are tragic and should be punished appropriately. However, we 
must oppose H.R. 503, the ``Unborn Victims of Violence Act of 
2001,'' because, as drafted, the bill will diminish, rather 
than enhance, the rights of women and do little to protect 
pregnant women from violence.
    H.R. 503 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. 
503 creates an offense that would occur when one or more 
enumerated Federal crimes have been committed and the ``death'' 
or ``bodily injury'' to the fetus occurs. 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. The woman carrying 
the pregnancy is specifically exempt from prosecution under the 
bill, as are medical professionals who perform consensual 
abortions or emergency medical treatment.\1\ (The bill is 
identical to legislation considered last Congress, H.R. 2436, 
which passed the House, but was not taken up in the Senate.)
---------------------------------------------------------------------------
    \1\ Georgetown Law Professor Peter Rubin expressed some concern 
that this language may be too narrowly tailored to pass constitutional 
scrutiny because it is unclear whether, as drafted, the exception would 
apply to an abortion for which parental consent was not obtained, but 
which had been approved through a judicial bypass. See Written 
Testimony of Peter J. Rubin, Hearing on H.R. 503 before the Subcomm. on 
Const, House Jud. Comm, March 15, 2001 [hereinafter, ``March 15, 2001 
Hearing''].
---------------------------------------------------------------------------
    H.R. 503 is unanimously opposed by groups concerned about 
protecting a woman's right to choose and opposed to domestic 
violence, including the National Abortion and Reproductive 
Rights Action League, Planned Parenthood Federation of America, 
National Abortion Federation, National Women's Law Center, 
National Partnership for Women and Families, Center for 
Reproductive Law and Policy, American Civil Liberties Union, 
Feminist Majority, American Association of University Women, 
National Family Planning and Reproductive Health Association, 
American Medical Women's Association, National Coalition 
Against Domestic Violence, National Council of Jewish Women, 
National Organization for Women, Physicians for Reproductive 
Choice and Health, and People for the American Way.
    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, it 
appears that the use of words such as ``unborn child,'' 
``death'' and ``bodily injury'' merely inflame the debate, and 
the bill sets the stage for an assault on Roe v. Wade \2\ 
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 undermine 
Roe, and for the other reasons set forth herein, we are 
compelled to dissent.
---------------------------------------------------------------------------
    \2\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------

             I. H.R. 503 Will Undermine the Rights of Women

    Our principal concern is that H.R. 503 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. If 
passed, this bill would mark the first time that our Federal 
laws would recognize the fetus, and earlier stages of 
gestational development, as a person, a notion that the Roe 
Court considered but rejected. Aside from this general concern, 
there is the real threat that this bill will spur the anti-
choice movement to use this bill as a building block to 
undermine a woman's right to choose.
    The threat to Roe v. Wade could not be more clear. In Roe, 
the Court recognized a woman's right to have an abortion as a 
privacy right protected by the Fourteenth Amendment. In 
considering the issue of whether a fetus is a ``person,'' the 
Court noted that, except in narrowly defined situations, and 
except when the rights are contingent upon live birth, ``the 
unborn have never been recognized in the law as persons in the 
whole sense'' and concluded that `` `person,' as used in the 
Fourteenth Amendment, does not include the unborn.'' \3\ In the 
28 years since Roe, the Supreme Court has never afforded legal 
personhood to a fetus.\4\
---------------------------------------------------------------------------
    \3\ Id. at 158.
    \4\ The Court has only twice been asked to uphold a state's 
determination that a fetus was an ``unborn child,'' and in both cases, 
the Court declined to do so. See Burns v. Alcala, 420 U.S. 575 (1975) 
(an ``unborn child'' is not a ``dependant'' for purposes of AFDC 
benefits); Webster v. Reproductive Health Services, 492 U.S. 490 (1989) 
(holding that a Missouri law which afforded legal protection to 
``unborn children'' was merely rhetorical and not ``operative'' because 
it was a statement of principle, and was not actually being applied; as 
such, the Court never addressed the merits of the constitutionality).
---------------------------------------------------------------------------
    These concerns were strongly echoed by the Clinton Justice 
Department last Congress. In a letter to the Committee 
regarding the predecessor version of the bill, the Department 
wrote: ``[I]dentification 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.'' \5\ 
Indeed, other observers have parsed through the rhetoric and 
assessed the political motivations behind this bill, with a New 
York Times editorial stating that the legislation ``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.'' \6\
---------------------------------------------------------------------------
    \5\ Letter from Jon P. Jennings, Acting Assistant Attorney General, 
September 9, 1999.
    \6\ New York Times, September 14, 1999 at A30.
---------------------------------------------------------------------------
    We are also deeply concerned that the bill's underlying 
theory of fetal personhood would establish a dangerous 
precedent that could result in women and their physicians being 
targeted for criminal prosecution in the future. Specifically, 
the pregnant woman could be placed in a position that is 
directly at odds with, or subordinate to, her fetus. For 
example, a future statute might require a woman to be 
prosecuted for any act or ``error'' in judgement during her 
pregnancy that results in harm to the fetus, including violence 
perpetrated on her by her batterer under a ``failure to 
protect'' theory.\7\ Current laws requiring warning labels on 
wine and cigarettes could be used, by extension, as a basis to 
restrain or prosecute women who smoke or drink during 
pregnancy.\8\
---------------------------------------------------------------------------
    \7\ Prosecutions of this type have already been brought at the 
State level. South Carolina now prosecutes women whose babies are found 
to have drugs in their systems. Whitner v. State, 492 S.E.2d 777 (S.C. 
1997), cert. denied, 523 U.S. 1145 (1998). In one case, a court ordered 
into custody a pregnant woman who refused medical care because of her 
religious convictions, in an attempt to ensure that the baby would be 
born safely. National Public Radio, Pregnant Woman Being Forced Into 
Custody at a State Medical Facility in Massachusetts to Ensure That 
Here Baby is Born Safely, (Sept 14, 2000). In another case, a court 
sent a student to prison to prevent her from obtaining a midterm 
abortion. Reuters, Judge Intends Prison Time to Block Abortion (Oct. 
10, 1998).
    \8\ A woman could also conceivably 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, 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 induce 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. When expanded to cover fetuses, child custody 
provisions could be used as a basis for seizing custody of the fetus to 
control the woman's behavior, or in some cases, civilly committing a 
pregnant woman to ``protect'' her fetus.
---------------------------------------------------------------------------
    As Juley Fulcher, the Public Policy Director of the 
National Coalition Against Domestic Violence testified:

        This bill would, for the first time, federally 
        recognize that the unborn fetus could be the victim of 
        a crime. It would not be a large intellectual leap to 
        expand the notion of unborn fetus as victim to other 
        realms. In fact, some states have already made that 
        leap and, in those states, women have been prosecuted 
        and convicted for acts that infringe on state 
        recognized legal rights of a fetus.\9\
---------------------------------------------------------------------------
    \9\ Written Testimony of Juley Fulcher, March 15, 2001 Hearing.

    Indeed, the true goal of the legislation is belied by the 
extreme rhetoric of the sponsors and its proponents in the 
anti-choice community. For example, last Congress, then-
Chairman Hyde explained during full committee markup that, 
under this bill, ``finally 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 (a Professor at Amherst) and Gerard Bradley (a Professor 
at Notre Dame Law School), explicitly linked the bill to the 
abortion debate through their testimony. Perhaps most candidly, 
Mr. Arkes noted that the bill ``would find its fuller 
significance when Congress finally puts into place the 
understanding that there are limits to the right of abortion. . 
. .'' \10\ This year, in a letter to Members, the National 
Right to Life Committee has again written that the bill is 
necessary to establish that a crime against a pregnant woman 
involves two human lives.\11\ In addition, the fact that in 
each of the last two Congresses the bill was referred to the 
Constitution Subcommittee, rather than the Crime Subcommittee, 
would seem to reveal the Majority's true intent to craft an 
abortion bill and not a crime bill.\12\
---------------------------------------------------------------------------
    \10\ Hearing on H.R. 2436 before the Subcomm. on Const, House Jud. 
Comm, July 21, 1999. At 46 (Statement of Harley Arkes.)
    \11\ In criticizing the Lofgren/Conyers amendment, the group 
argued: ``Such a `one-victim' amendment would codify the fiction that 
when a criminal assailant injures a mother and kills her unborn child 
there has been only a compound injury to the mother, but no loss of any 
human life. The one-victim substitute would also enact the notion that 
when a criminal assailant kills a pregnant woman, the assailant should 
be punished once for killing the mother and then again for depriving 
her of her `pregnancy'--but if there is only one victim, it is 
difficult to see why this would not be a duplicative criminal charge, 
since legally speaking a woman who has been killed can hardly suffer an 
additional `loss.' '' Letter from Douglas Johnson, Legislative 
Director, and Patricia Coll, Legislative Assistant, National Right to 
Life Committee, Inc., March 12, 2001.
    \12\ When Representative Scott inquired as to why H.R. 2436, last 
Congress' version of the bill, 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--diverting the legal system away from domestic 
violence or other violence against women.
    If the sponsors of H.R. 503 were truly concerned with the 
problem of violence against women, they would support full 
funding of the Violence Against Women Act of 2000 
(``VAWA'').\13\ The problem of violence against women, and 
specifically violence against pregnant women and women who have 
given birth within the previous year, is all too real; with the 
Journal of the American Medical Association recently finding 
that homicide was the leading cause of death among pregnant, or 
recently pregnant, women.\14\
---------------------------------------------------------------------------
    \13\ Pub. L. No. 106-386 (2000). VAWA provides funding for domestic 
violence shelters, victim services, training for law enforcement 
personnel, and many other programs at the state and local level that 
help to prevent and deal with violence against women, regardless of 
their pregnancy status. Since the original Violence Against Women Act 
was passed in 1994, there has been a 21% decrease in intimate partner 
violence. Bureau of Justice Statistics: Special Report ``Intimate 
Partner Violence,'' by Callie Marie Rennison, Ph.D. and Sarah Welchans 
(BJS Statisticians), May 2000.
    \14\ I.L. Horon, V. Chung, Enhanced Surveillance for Pregnancy-
Associated Mortality--Maryland, 1993-1998, 285 JOURNAL OF THE AMERICAN 
MEDICAL ASSN. 1455 (March 21, 2001); Victoria Frye, Examining 
Homicide's Contribution to Pregnancy-Associated Deaths, id. at 1510-
1511; S. Martin, L. Mackie, L. Kupper, P. Buescher, Moracco, Physical 
Abuse of Women Before, During, and After Pregnancy, id. at 1581. In 
contrast, homicide was the fifth leading cause of death among non-
pregnant women during the same time period. Homicides made up 20% of 
all pregnancy-associated deaths, more than twice as many deaths as 
embolisms, which comprised 9% of pregnancy-associated deaths.
---------------------------------------------------------------------------
    The funding deficit for VAWA is also far too real. For 
example, although VAWA authorized over $677 million to be spent 
on programs to combat domestic violence and sexual assault in 
fiscal year 2001, the amounts appropriated in the 2001 budget 
are more than $200 million short of the authorization levels. 
Moreover, although VAWA authorized $235 million for the STOP 
Grant program, less than $210 million was appropriated for this 
purpose. Thus, even though VAWA authorized an increase in 
funding, in real terms, there actually was less money 
appropriated for STOP Grants than there was 3 years ago.
    Furthermore, last year there was no money appropriated for 
new programs created by the VAWA reauthorization legislation. 
This includes programs that were proposed and passed on a 
bipartisan basis by this very Committee--such as protections 
for older and disabled women, education and training for judges 
and court personnel, the domestic violence research task force, 
and supervised visitation centers. Yet H.R. 503 totally ignores 
this problem in a headlong effort to politicize the abortion 
issue. Sadly, when an amendment to provide for full funding of 
VAWA was offered by Rep. Conyers, it was defeated by the 
Majority in a party line vote.

     III. The Legislation Raises Additional Constitutional Concerns

    In addition to the concern that the bill may run afoul of 
Roe v. Wade, several additional constitutional concerns exist 
with H.R. 503 as it is presently drafted.
    A critical problem is that key provisions of the bill are 
written so vaguely as to be potentially constitutionally 
``void'' or violative of due process.\15\ The principal problem 
is the uncertainty regarding the meaning of the bill's scope, 
namely its application to an ``unborn child'' defined as ``a 
child, who is in utero,'' which in turn is defined as ``a 
member of the species homo sapiens, at any stage of 
development, who is carried in the womb.'' \16\ The broadest 
interpretation would apply to zygotes (fertilized eggs) formed 
immediately after conception. A slightly narrower 
interpretation would apply to blastocysts which have not yet 
been implanted in the uterine wall. And an even narrower 
interpretation would limit the bill's scope to embryos or 
fetuses after they have been implanted. It is because of these 
concerns that Georgetown Law Professor Peter J. Rubin has 
written:
---------------------------------------------------------------------------
    \15\ Another possible vagueness concern is presented by the bill's 
broad definition of `bodily injury'' in that it raises questions as to 
how the sponsors intend to account for such speculative criteria as 
``fetal pain.''
    \16\ Supporters of the legislation argue that the bill uses the 
same definition as the ``Innocent Child Protection Act of 2000'' which 
prohibited the execution of pregnant prison inmates, and passed the 
House by a vote of 417-0-2. The language in that bill defined ``a child 
in utero'' as ``a member of the species sapiens, at any stage of 
development, who is carried in the womb.'' There are several problems 
with this argument. First, the language in that bill was based on the 
predecessor version of this bill, not vice versa. According to Rep. 
Pitts, ``H.R. 4888's definition of `child in utero' (`a member of the 
species sapiens, at any stage of development, who is carried in the 
womb') was taken verbatim from the Unborn Victims of Violence Act (H.R. 
2436).'' Congressional Record, July 25, 2000, H6797 (Statement of Rep. 
Joseph Pitts). In addition, that bill skipped Committee and was taken 
up on suspension and therefore never offered Members the opportunity 
for clarifying amendments. Finally, the Innocent Child Protection Act 
does not operate to apply criminal penalties, so the need for clarity 
and specificity is far less.

        [The bill's use] of the phrase ``child, who is in 
        utero'' may give a defendant an argument that the 
        statute is ambiguous, and that he lacked the notice of 
        what acts are criminal that is required by the Due 
        Process Clause of the Fifth Amendment. (See, e.g., 
        Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).) 
        \17\
---------------------------------------------------------------------------
    \17\ Written Testimony of Peter J. Rubin, March 15, 2001 Hearing.

    The legislative process has done little to elucidate the 
meaning of the phrases ``child in utero,'' and ``unborn 
child.'' For example, during full committee, when Rep. Nadler 
asked ``[d]oes it [i.e., `unborn child'] mean from the time of 
conception or does it mean from the time of implantation or 
does it mean from some other time?'' Rep. Graham, the bill's 
lead sponsor, responded: ``if it's not carried in the womb, 
then it would be no crime,'' without clarifying to what stage 
of development this term referred.\18\
---------------------------------------------------------------------------
    \18\ Also, during a line of questioning by Rep. Nadler during the 
legislative hearing on H.R. 503, he asked what the words ``who is 
carried in the womb'' mean, Mr. Myers, a Majority witness who does not 
support the Supreme Court decision in Roe, replied ``I am not sure that 
adds anything. In fact, I think it may be better to take that clause 
out.'' March 15, 2001 Hearing (transcript at 68).
---------------------------------------------------------------------------
    Concerns have also been raised that H.R. 503 may lack a 
mens rea requirement \19\, and thereby run afoul of the 
Constitution's due process mandate that criminal laws require 
the perpetrator must have a criminal intent.\20\ This is 
because under H.R. 503, a person may be convicted of the 
offense of harm to a fetus even if he or she did not know, and 
had no reason to know, that the woman was pregnant. The problem 
is compounded by the fact that the bill does not even require 
that the predicate offense of a crime against the woman be 
first established in a court of law.\21\
---------------------------------------------------------------------------
    \19\ In fact, the bill explicitly disavows a mens rea requirement, 
providing that: ``An offense under this section does not require proof 
that . . . the person engaging in the conduct had knowledge that the 
victim of the underlying offense was pregnant . . . or the defendant 
intended to cause the death of, or bodily injury to, the unborn 
child.''
    \20\ See New York v. Ferber, 458 U.S. 747, 765 (1982) (holding 
that, except in a small class of public welfare cases, ``criminal 
responsibility . . . not be imposed without some element of scienter 
(intent) on the part of the defendant.'' See also Liporta v. United 
States, 471 U.S. 419, 426, (1985) (``[C]riminal offenses requiring no 
mens rea have a generally disfavored status.'' (internal quotations 
omitted)); Staples v. United States, 511, 605 U.S. 6000 (1994) (``The 
contention that an injury can amount to a crime only when inflicted by 
intention is no provincial or transient notion. It is as universal and 
persistent in mature systems of law as belief in freedom of the human 
will and a consequent ability and duty of the normal individual to 
choose between good and evil.'' quoting Morisette v. United States, 342 
U.S. 246, 250 (1952).
    \21\ The sponsors of H.R. 503 rely on the criminal law doctrine of 
transferred intent, which transfers the malevolent intent which the 
perpetrator of a crime harbors and acts upon against a pregnant woman, 
to her fetus. However, H.R. 503's application of the transferred intent 
doctrine may prove to be difficult to apply because, as noted supra, 
under Roe the fetus is not considered a person in the constitutional 
sense.
---------------------------------------------------------------------------
  A related concern is that H.R. 503 may present needless procedural 
and evidentiary difficulties in prosecuting offenders under laws 
already on the books. Under the bill, if a separate offense is charged 
on behalf of the fetus, as opposed to a single offense brought on 
behalf of the pregnant woman under current law, the case would have to 
be presented to a grand jury and charged separately. Each element of 
the separate offense must be proven beyond a reasonable doubt. As such, 
the procedural complexity and questionable constitutional basis for 
this bill may dissuade prosecutors from bringing charges in such cases.

         IV. A Preferable Legislative Alternative is Available

    Finally, we oppose H.R. 503 because a far more effective 
alternative is available, which discourages crimes against 
pregnant women without undermining Roe v. Wade or otherwise 
running afoul of the Constitution. Such an alternative is 
embodied in the Lofgren/Conyers substitute, which received 201 
votes on the House Floor in the 106th Congress. This substitute 
was again offered at the Committee markup this year and 
rejected along a party line vote.
    The Lofgren-Conyers substitute includes the following 
elements: (1) it creates a separate Federal criminal offense 
for harm to a pregnant woman, which protects the legal status 
of a woman; (2) it recognizes the pregnant woman as the primary 
victim of a crime that causes termination of a pregnancy; (3) 
it includes exactly the same sentences for these offenses as 
does the base bill, providing for a maximum 20 year sentence 
for injury to a woman's pregnancy, and a maximum life sentence 
for termination of a woman's pregnancy; and (4) it requires a 
conviction for the underlying predicate offense, thereby 
requiring that intent to commit the predicate offense be 
proven.
    Perhaps the most important manner in which the substitute 
differs from H.R. 503 is that the Lofgren/Conyers substitute 
defines the crime to be against the pregnant woman, whereas 
H.R. 503 makes the crime against the fetus, in utero. This 
distinction is a critical one, because the Substitute avoids 
the issues of ``fetal rights'' and ``fetal personhood'' that 
put the bill at odds with the principles of Roe v. Wade.
    Instead, the Lofgren/Conyers substitute recognizes that it 
is the woman who suffers the injury when an assault causes harm 
to her fetus or causes her to lose the pregnancy. The 
substitute also acknowledges the interconnectedness of the 
woman and her fetus, without distinguishing the rights of one 
from the other. The substitute therefore accomplishes the 
stated goals of H.R. 503, deterring violent acts against 
pregnant women that cause injury to their fetuses or the 
termination of a pregnancy. However, unlike H.R. 503, the 
substitute does so in a way that avoids the controversial 
issues of abortion and the right to choose.

                               Conclusion

    It is unfortunate that the Majority's goal of averting 
violence against 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 
threatens 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. 503 lays the groundwork for governmental 
intervention into their bodies and their reproductive choice.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.