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Two weeks ago, the U.S. House of Representatives passed the Unborn Victims of Violence Act--and panic ensued. "Truly, the right to choose has never been more imperiled than it is today," declared Vicki Saporta, executive director of the National Abortion Federation. "Make no mistake: This is an attack on a woman's right to chose," warned Representative Carolyn B. Maloney of New York. "We are in the midst of the greatest threat to Roe v. Wade since 1973," insisted Gloria Feldt, president of Planned Parenthood.
All this in response to a bill that doesn't threaten the right to abortion at all. If anything, the Unborn Victims of Violence Act may actually strengthen it.
The act would make it a federal crime to harm a fetus while committing any of 68 federal offenses. Under current federal law, the penalty for assaulting a pregnant woman and injuring or killing her fetus is no greater than for assaulting a nonpregnant woman. Organizations like Planned Parenthood and the National Abortion Federation agree that federal law should offer pregnant women more protection, but they oppose the Unborn Victims of Violence Act because they say that by legally enshrining fetal personhood it undermines Roe v. Wade.
But that simply isn't true. Since the bill specifically exempts all forms of legal abortion, it leaves the constitutional rationale for the right to choose unaffected. According to Richard Parker, a professor of criminal law at Harvard University and a supporter of abortion rights, "There is nothing as a formal law that would undermine Roe v. Wade.... This is not at all a big deal."
Indeed, 24 states already have similar laws, many of which use the same language as the Unborn Victims of Violence Act, and legally they don't affect the right to abortion in those states. Says Robert Weisberg, a criminal law professor at Stanford Law School, "This law is no different from the one here in California; it simply gets more attention because it is federal."
In fact, not only have many states passed legislation defining a fetus as a person--without legally threatening abortion rights--but so has the U.S. House of Representatives. Last year, the House unanimously passed the Innocent Child Protection Act, which stated that neither the state nor the federal government may "carry out a sentence of death on a woman while she carries a child in utero." The act employs the same definition of a child in utero as the Unborn Victims of Violence Act, defining it as "a member of the species of homo-sapiens, at any stage of development, who is carried in the womb." And pro-choice groups didn't publicly object.
So why did last year's bill elicit nary a feminist peep, while this year's bill prompted a deafening roar? Perhaps because pro-life groups like the National Right to Life Committee pushed hard for the Unborn Victims of Violence Act, making it one of their top legislative priorities. But those groups readily acknowledge that the bill gets them no closer to banning abortion; they simply support it because they think it protects fetuses. Douglas Johnson, legislative director of the National Right to Life Committee, says, "[T]his legislation is worthwhile in its own right. Although abortion is an important pro-life issue, it is not the only pro-life issue."
Afraid that any pro-life victory constituted a pro-choice defeat, feminist groups supported an alternative bill. Introduced by Representative Zoe Lofgren, the Motherhood Protection Act would have increased the punishment for criminals who attack pregnant women but would not have charged them with murder, even if their attack caused a woman to lose her fetus. The bill was eminently sensible; unfortunately, it had no chance of passing.
Faced, then, with either the Unborn Victims of Violence Act or nothing, many pro-choice members of Congress voted yes. One, Representative James Clyburn of South Carolina, says he told a pro-choice lobbyist before the vote: "[I]f I were in your position, I would call a press conference, and I would endorse this bill and [thereby] deny any victory for Lindsey Graham [the bill's sponsor] and his supporters."
Indeed, many anti-abortionists themselves agree that by exempting all legal abortions from its list of crimes, the Unborn Victims of Violence Act strengthens Roe. "It is a reaffirmation of abortion," says Elizabeth Daub, director of youth activism for the American Life League. Even the more moderate National Right to Life League calls the bill pro-choice.
In short, pro-choice activists could have endorsed the bill, enjoyed a public relations victory, and won some concrete protection for pregnant women--the constituency whose rights they've sworn to uphold--all while keeping Roe firmly intact. Instead, they composed hyperbolic declarations of defeat--declarations perfectly designed for their next round of fund-raising letters. It's no surprise that the pro-life movement wants to win America's decades-old abortion struggle. The puzzling question is why the pro-choice movement seems to want to lose. Read more on politics, the arts and cyberspace at The New Republic Online