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Legislative Memo: Crimes of Violence Against a Fetus

This bill has as its principal intent and effect the redefinition of the fetus, 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 – 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 implicitly recognizes that life begins at conception. In so doing the sponsors of this bill would 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. The unborn, the Roe court noted, “have never been recognized in the law as persons 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 help criminally responsible for harm to a fetus even if the person did not know, and had no reason to know, that the woman was pregnant.

The NYCLU supports carefully tailored legislation that is aimed at punishing violence against pregnant women and that recognizes the additional, significant harm to a woman who suffers the loss of a wanted pregnancy under such circumstances. This important public interest would be served by enhancing penalties for criminal acts against pregnant women that result in harm to a fetus.

Indeed, if the sponsors of this bill are truly concerned about the safety of a woman’s fetus, they might more effectively serve this interest by crafting legislation that would provide for more effective intervention by police, district attorneys, and social service agencies in domestic violence situations – one of the single greatest causes of injury to pregnant women.

However, this bill (without a single woman among the sponsoring legislators) is not about protecting pregnant women from harm. Rather, it is an ideological assault against a woman’s right to reproductive choice. The first principle of this ideology holds that life begins at conception. And this principle cannot be reconciled with the constitutional principle that recognizes a woman’s right to reproductive choice.

In short, this bill is a transparent attempt to create the crime of abortion, and to make culpable for this crime a woman who freely chooses to exercise her right to reproductive choice. S.57-B/A.6681-A is profoundly misguided, as a matter both of law and public policy, and the NYCLU calls upon legislators to reject this bill soundly.

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