Victims, Born and Unborn

Published April 09, 2004, issue of April 09, 2004.
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No children, born or otherwise, will be protected by the so-called Unborn Victims of Violence Act that President Bush signed into law last week. The new measure is a legal trifle that makes it a crime to harm a fetus during the commission of another federal crime. The presumed logic of the bill is that terrorists, drug kingpins and interstate kidnappers will be deterred by the fear that they could face an additional charge if they cause a woman to miscarry during the commission of their crimes. We doubt it.

But that does not mean the new law will not fulfill its real goal, which has nothing to do with protecting American citizens from violence and everything to do with establishing a legal precedent. For the first time, a law is on the books affirming the legal status of the unborn fetus as a person.

The new law doesn’t address abortion directly. But it sets a symbolically important legal bar. After all, if an unborn fetus is a person with rights under the law, how can someone else have a clear-cut right to end that person’s life — even in a medical procedure?

Anti-abortion activists made their intentions clear when they fought an amendment proposed by Senator Dianne Feinstein of California. Her amendment, which failed by one vote, would have preserved the structure of the new law but defined the new crime as terminating a pregnancy, rather than killing a “child in utero.” That would have protected pregnant women and the potential life within them from violence, if such were the sponsors’ goal. But it wasn’t.

The greatest threat of violence facing women during pregnancy comes not from terrorists or drug lords but from husbands and boyfriends. Twenty-nine states already have laws on the books making damage to the fetus a separate crime — half beginning with conception, the rest taking effect later on, usually after the fetus is viable. Whether or not one agrees with the legal tactic of creating two victims, those bills at least address the very real problem of violence against women, which poses a genuine danger to the unborn.

The new federal law does nothing to address that. It is not intended to protect women. The goal, as its advocates repeatedly insisted, was to codify the rights of the fetus as a crime victim.

The new law is an important step in a long-term strategy by the religious right to change the legal culture surrounding abortion. Three decades of anti-abortion activism have succeeded in creating a public atmosphere of intimidation, to the point where most hospitals no longer teach the procedure and more than five-sixths of the nation’s counties don’t even have a single facility that performs it. But they have not managed to change the law of the land, which continues at least theoretically to guarantee a woman’s right to choose.

The Bush administration and its congressional Republican allies are clearly determined to correct that through a series of legal building blocks. One was the passage last November of the ban on so-called partial-birth abortions, the first federal law criminalizing a specific medical procedure. Another was the executive action last year making fetuses eligible for medical programs aimed at children.

The Unborn Victims of Violence Act is an important advance down that slippery slope. If it is upheld in court, the stage will have been set for the next assault. The ultimate goal is to build a sustainable case for overturning the right to an abortion.

As we have argued before, whether a fetus in utero can be defined as a person with rights is at heart a theological question. Some religious traditions answer in the affirmative, as is their right. Others, no less faithful to their traditions, answer in the negative.

The end goal of the anti-abortion movement is nothing less than to impose its religious worldview on the rest of us. As Americans from around the country prepare to gather in Washington later this month to speak out for women’s right to choose, it’s essential that we remember how high the stakes are, and how grave the threat.

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