Legislative Memo: Crimes of Violence Against a Fetus

This bill has as its principal intent and effect the redefinition of a fetus or embryo, at any stage of gestation, as a person. With this new definition in place, the bill then creates a number of new criminal offenses for crimes committed against the fetus or embryo — including murder, manslaughter, criminally negligent homicide and vehicular manslaughter.

The proposed legislation attempts, as a matter of law, to separate a woman from her fetus, and to endow that fetus with the legal status of an autonomous individual. The language of the bill implies that, as a legal matter, life begins at conception.

With this language the bill’s sponsors seek to undermine a woman’s constitutional right to choose an abortion, established by the Supreme Court in Roe v. Wade,. In that case, the court held that a fetus is not a “person” for purposes of the 14th Amendment, and has “never been recognized in the law as [a] person [ … ] in the whole sense.”

The bill also runs roughshod over a fundamental principle of criminal law, which holds that knowledge of the underlying fact that renders one’s act subject to penalty is essential to conviction. And yet, under the provisions of this legislation, a person could be held criminally responsible for the murder of a fetus even if the person did not know, and had no reason to know, that the woman was pregnant.

There is no evidence that existing criminal statutes fail to provide adequate sanctions for crimes committed against pregnant women. If, however, the sponsors of this bill are truly seeking to enhance the safety of a pregnant woman and her fetus, this interest would be better served by enacting legislation that provides for more effective intervention by police, district attorneys, and social service agencies in matters of domestic violence – one of the single greatest causes of injury to pregnant women.

It is quite clear that this bill is not about protecting pregnant women from harm. It is rather an ideological assault upon a woman’s right to reproductive choice. This ideology holds that an autonomous being as recognized in the law comes into existence at conception. And this principle is irreconcilable with the constitutional principle that recognizes a woman’s right to reproductive choice.

The proposed legislation, therefore, must be recognized as the first step toward the elimination of a woman’s right to determine the course of her own pregnancy, and to exercise control over her own healthcare. Indeed, this legislation seeks to create in New York law, notwithstanding the bill’s exception for a “justifiable abortional act,” a legal framework that could lead to recognition of the crime of abortion (Penal Law Section 125.45, 125.50, 125.55).

S.403/A.693 is profoundly misguided, both as a matter of law and public policy, and the NYCLU calls upon legislators to reject this bill soundly.