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Violent harm to fetus latest focus of abortion debate

The ongoing struggle to protect the rights of women to make reproductive choices free from government interference has taken many forms, but in this session of the Oregon Legislature much attention is focused on the issue of „fetal homicide.š

Everyone on both sides of the abortion debate agrees that assault and murder of a pregnant woman are reprehensible crimes. Unfortunately, abortion opponents are using this issue as an excuse to get legislators to define a fetus as a human being in order to undermine the Supreme Court‚s decision in Roe v. Wade.

ACLU Legislative Director Andrea Meyer gave the following testimony in opposition to HB 2020 before the House Judiciary Committee on February 21 in Salem.

The ACLU of Oregon opposes HB 2020 because it chips away at the legal foundation of a woman‚s right to choose abortion, it does not require the appropriate mental state to be convicted of the crime, and it expands the death penalty in Oregon law. 

Let me first say at the outset, when a pregnant woman is the victim of a violent crime, the loss or harm to the fetus is an additional tragedy worthy of redress. Violent offenders who commit these crimes, intending to cause harm to the fetus, can and should be punished. 

The ACLU fully supports the proper punishment of violence against pregnant women that harms or kills their fetuses. Instead of creating a separate offense, the law should increase the penalty when a criminal act results in harm not only to a pregnant woman, but also to her pregnancy. Such penalty enhancements punish the additional injury that these acts cause the woman, without conferring on the fetus the status of a legal entity. Unlike „fetal homicideš or „fetal harmsš legislation, such penalty enhancements focus the criminal law where it should be: on the additional, often devastating injury suffered by the woman when a crime harms or kills her fetus.

However, this bill seeks to endow the fetus with legal rights distinct from the woman who has been injured or killed. It is not necessary to take this dramatic legal step to address the harms done.

Although proponents argue that this bill is intended to punish violent offenders, it is also a dangerous attempt to separate a woman from her fetus in the eyes of the law. Such separation sets the stage for eliminating a woman‚s right to determine the fate of her own pregnancy and to direct the course of her own healthcare. 

Drafting the law in this manner is part of a larger strategy to overturn Roe v. Wade. If we look at how the U.S. Supreme Court has recently re-analyzed its earlier decision, that strategy becomes clear. Let me explain.  When last session the Court re-examined the issue of sodomy laws in Lawrence v. Texas, overturning Bowers v. Hardwick, the Court looked at the history of sodomy laws and the prohibition of same-sex relations. It noted that over the course of the last few decades, since its decision in Bowers, most states have moved towards abolishing sodomy laws. The evolution in community standards, the Court argued, was one reason to justify the reversal of a prior precedent permitting sodomy laws.

The same analysis was used in 2002 when the Supreme Court compared the number of states that now bar execution of those who are mentally retarded in overturning an earlier decision. In fact, Justice Scalia made clear in his dissent in Lawrence that he supports overturning Roe on this basis. 

That is why we say that this law chips away at the legal foundation of a woman‚s right to choose abortion. The proponents intend to use the argument that the recognition of the fetus, at all stages of gestation as an independent victim of a crime, justifies the reversal of Roe holding that a fetus is not a person under the Constitution.

As Senator Orrin Hatch told CNN in speaking about the federal equivalent to this proposal: „They say it undermines abortion right[s]. It does.š

We are further troubled by some of the details in HB 2020. By explicitly disavowing a mens rea (or criminal intent) requirement with respect to the harm to the fetus, this creates a tension with the Constitution‚s Due Process guarantees. This bill would permit a person to be convicted of the offense of killing a fetus even if he or she did not know and had no reason to know, that the woman was pregnant and he or she did not intend to cause harm to the fetus. Such a result undermines the Constitution‚s promise of due process. 

Finally, this bill expands the aggravated murder statute in Oregon thus expanding the application of a death sentence. The ACLU opposes use of the death penalty. In past sessions, The ACLU, along with the Catholic Conference and other allies, has opposed any attempt to expand the death penalty in Oregon.  We do so here again today.

The ACLU urges you to reject HB 2020. Instead, we should follow the model set forth in North Carolina, where both anti-choice and pro-choice legislators worked to pass legislation that enhances the penalties for violent acts that cause a miscarriage or stillbirth. This law appropriately punishes the additional injury a woman suffers without identifying the fetus as a legal entity separate and distinct from the woman harmed. 

If we are truly committed to addressing violence against women, we will develop legislation that punishes the crime and does not involve us with either a debate over abortion or the death penalty. 

Copyright October, 2005 , ACLU of Oregon
Last updated October 19, 2005