Face the Fetus

Politics and policy.
March 29 2004 6:28 PM

Face the Fetus

It's time for abortion rights advocates to stop denying reality.

How long can supporters of abortion rights go on denying the distinct legal significance of unborn human life? Not any longer, if they want to save Roe v. Wade.

That's the message the U.S. Senate delivered Thursday as it passed the Unborn Victims of Violence Act. Under UVVA, which had already passed the House, anyone who injures or "causes the death" of a "child in utero" during a violent federal crime will get the same punishment "provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother." The bill defines a "child in utero" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." President Bush will soon sign it into law.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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Once enacted, the law will double the penalty for any boyfriend, husband, or thug who harms or kills a fetus in the course of beating or killing a pregnant woman. More broadly, it will enshrine in federal law the principle that killing a fetus is legally equivalent to killing a child. That's exactly the principle the Supreme Court rejected in Roe.

Advocates of UVVA say it won't affect abortion rights because it stipulates, "Nothing in this section shall be construed to permit the prosecution … 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." But the exemption is plainly illogical. Imagine a federal ban on gay marriage that stipulated, "Nothing in this section shall apply to a daughter of the Vice President of the United States." A gay marriage is a gay marriage. A child is a child. Once the embryo is defined as a child, and killing it is defined as killing a child, abortion at any stage of pregnancy becomes murder—immediately in theory, and eventually in law.

Is this what the Senate intended? Not really. Last year, 52 senators voted for an amendment declaring that Roe "secures an important constitutional right" and "should not be overturned." Fourteen of those 52 pro-choice senators voted Thursday for UVVA. Five of them voted against an amendment to UVVA, offered by Sen. Dianne Feinstein, D-Calif., that would have preserved UVVA's penalties for assaults on pregnant women while changing its language to avoid a collision with abortion rights. Feinstein's amendment was the sole alternative put forward by abortion rights supporters. It was the whole ball game, and those five senators held the balance of power. With their support, Feinstein's amendment would have been adopted, and abortion rights would be safe. Instead, the amendment failed, 50 to 49.

Why did the pro-choice side lose those five votes? * The answer lies in the text of the Feinstein amendment. It says that anyone who commits one of the enumerated violent federal crimes and "thereby causes the termination of a pregnancy or the interruption of the normal course of pregnancy" will get a second punishment "the same as the punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman."

One word is notably missing from the amendment. The word is "fetus." There is no fetus. There is only a "pregnancy."

This is not an accident. Each time pro-lifers have tried in recent years to treat the embryo or fetus as a person in one context or another, pro-choicers have responded by treating the fetus as a nonentity. When pro-lifers sought to ban human cloning, pro-choicers offered a counterproposal that would require the destruction of every cloned embryo—which they referred to only as "an unfertilized blastocyst" and "the product of nuclear transplantation"—within two weeks of its creation. When pro-lifers sought to make fetuses eligible for the State Children's Health Insurance Program, pro-choicers offered a counterproposal to expand the program's eligibility guidelines "as if any reference to targeted low-income children were a reference to targeted low-income pregnant women." The pro-choice alternative made no reference to the gestated entity until it was "born."

It's a strategy of denial. And this week, it ran into too much reality.

On the Senate floor, Sen. Sam Brownback, R-Kan., displayed a devastating series of pictures of murdered women accompanied by the viable fetuses who died with them. "The question is simple," Brownback told his colleagues. "Do we have one victim or two involved in violent crimes such as these?" In one case, Brownback pleaded, "Look at this photo again of Christina and Ashley in the coffin. Is there one victim? Or are there two?" In another case, Brownback noted that the woman survived, but the fetus died. "Any congressman who votes for the 'one-victim' amendment is really saying that nobody died that night," said Brownback, referring to the Feinstein alternative. "And that is a lie."

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