an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Senate passed the Unborn Victims of Life Act, which amends existing federal crimes to allow prosecution of persons who cause death to a fetus during the commission of a federal crime.
Opponents of the measure feared it would undermine Roe v. Wade. That is because of the definition section, which says that fetuses are defined to be "children":
`(d) As used in this section, the term `unborn child' means a child in utero, and the term `child in utero' or `child, who is in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.'.
Undermining Roe may be the purpose of one or more of its original sponsors, but it won't have that effect. Roe is a constitutional rule, and cannot be overturned or limited by statute. Congress can call a fetus a child but that doesn't change the constitutional right to abortion.
In any case, the statute by its own terms does not reach abortions:
`(c) Nothing in this section shall be construed to permit the prosecution--
`(1) 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 or for which such consent is implied by law;
`(2) of any person for any medical treatment of the pregnant woman or her unborn child; or
`(3) of any woman with respect to her unborn child.
This produces a perverse result for pro-life forces: Congress officially says that a fetus is a child, but also officially says that ending the life of this child through abortion is legal. Should a pro-life Senator vote for such a bill?
Equally interesting is the death penalty provision:
`(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.
This produces another perverse result: it distinguishes between born children and unborn children (as defined by the statute). Crimes against born children may deserve the death penalty under federal law; however, according to Congress, no crimes against the latter do. Why should this be, if fetuses are defined as children? Are pro-life forces conceding that the life of a born child is more valuable than the life of a fetus? Again, should a pro-life Senator vote for such a bill?
One suspects that most pro-life politicians will say, yes, on the theory that half a loaf is better than none; by defining the unborn as children, the bill symbolizes disagreement with Roe. But the symbolism cuts both ways, for the bill as actually written doesn't treat unborn children the same as other children, and it actually undermines the claim that abortion is the functional equivalent of murder.