February 05, 2004, 9:47 a.m.
Seeing 1 When There Are 2
What Conner Peterson’s grandmother had to explain to John Kerry.

By Douglas Johnson

The United States Senate has never debated or voted on fetal homicide legislation, but that has not stopped John Kerry, the frontrunner for the Democratic presidential nomination, from pronouncing his opposition to it — a position that has pitted him against Sharon Rocha, mother of Laci Peterson and grandmother of Conner Peterson.

According to a just-released Gallup poll, 57 percent of Americans are paying attention to the Peterson case, significantly more than any other judicial proceeding currently underway. Scott Peterson is charged with two murders, those of his wife and unborn son. That's because the crimes occurred in California, where, since 1970, the law has applied the same consequences to the murder of a "fetus" as to the murder of a born human being. Indeed, the California supreme court has specifically held that the simultaneous murder of a pregnant woman and her "fetus" also falls within a second law that makes a defendant eligible for capital punishment if he kills more than one victim in the same crime.

Twenty-seven other states recognize the unborn child as a homicide victim. Of the 28 total states, 15 recognize fetal homicide throughout pre-natal development, and 13 from some particular point in pregnancy defined in law.

But what about federal law? Pregnant women are often among the victims of crimes that are covered by federal law — terrorist bombings, killings performed by persons engaged in major drug enterprises, domestic violence on military bases, attacks that follow interstate stalkings, and many others. Currently, however, if an unborn child dies during a federal or military crime, he is not recognized as a victim. If the woman herself survives but loses her baby, then whatever charges are brought will be based on the premise that nobody really died.

The Unborn Victims of Violence Act (UVVA), sponsored by Senator Mike DeWine (R., Ohio) and Rep. Melissa Hart (R., Pa.), would change that. Under the bill, if a pregnant woman is a victim of any of 68 federal crimes, and her unborn child is injured or killed, the bill allows the prosecutor to bring a second charge on behalf of the second victim.

President Bush says that he thinks such crimes have two victims. In his January 22 remarks to the March for Life in Washington, the president repeated his past calls for Congress to pass the UVVA. Soon, the Republican leaders in the Senate and House will call for votes on the bill.

Although the U.S. House of Representatives passed the UVVA in 1999 and 2001, it has never had a vote in the Senate, due entirely to objections from pro-abortion groups such as the ACLU, NARAL, the Planned Parenthood Federation of America, and the National Abortion Federation.

BLINDED BY RADICALISM

Last May, when I participated in a broadcast debate on this issue on KCRW-FM (a Los Angeles NPR affiliate), the host — veteran interviewer Warren Olney — twice asked Gloria Feldt, president of the Planned Parenthood Federation of America, whether the Peterson crime involved one victim or two. Feldt twice skirted the question. When Olney pressed for an answer a third time, Feldt pointedly replied that Laci was "the victim."

Asked essentially the same question last month on a radio program in Lynchburg, Kent Willis, the executive director of the Virginia ACLU, replied, "That baby was not a murder victim."

By overwhelming margins, the public rejects this callous doctrine. A May 2003 Newsweek poll found that 84 percent of Americans believe that when both mother and fetus die, the attacker should be charged "for two murders instead of one," including 56 percent who believe this should apply "in all cases where a pregnant woman is murdered" and another 28 percent "where the fetus is viable — that is, is able to survive outside the womb."

Two other national polls found similar results. In these three surveys, only 7 to 10 percent thought that the law must not recognize the fetal homicide at any point.

The National Right to Life Committee (NRLC) and other pro-life groups support fetal-homicide bills because we recognize that abortion, while a critical issue, is not the only pro-life issue. Conner Peterson, and many others like him, were absolutely deprived of their right to life through acts that were not abortions and that are in no way shielded by Roe v. Wade.

Sure, opponents insist that the UVVA "directly contradicts the basic tenet of Roe v. Wade," as the National Abortion Federation put it. Yet the more thoughtful pro-Roe senators might consider not only the public opinion polls cited above, but also that:

The Unborn Victims of Violence Act explicitly excludes abortion, and excludes any act committed by the mother herself, legal or illegal.

The 28 state fetal-homicide laws, some of which have been enforced for decades, have had no effect on abortion.

Criminal defendants and advocacy groups have mounted over a dozen legal challenges to state unborn-victims laws — and every one has failed in the federal and state courts. The 1994 ruling of the California supreme court is typical: "[W]hen the mother's privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother's womb from homicide."

In its 1989 Webster ruling, the U.S. Supreme Court lifted a lower-court order against the most comprehensive of the state laws, a Missouri statute stipulating that "the life of each human being begins at conception," and that the "unborn child" has the rights of others under all state laws (including criminal laws), with the Supreme Court observing that this law could be constitutionally applied outside the realm of abortion.

The courts have held that such laws may be constitutionally applied whether or not an attacker knew of the unborn victim's existence. For example, the Minnesota supreme court upheld the double-homicide indictment of a man charged with killing a woman who, on post-mortem examination, was discovered to be about 28 days pregnant, noting: "The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude." What an excellent, woman-protective doctrine to establish in the law!

Former acting Solicitor General Walter Dellinger of Duke University School of Law, who served President Clinton as his advisor on constitutional issues and authored Clinton's 1993 abortion-related executive orders, said, "I don't think they [fetal-homicide laws] undermine Roe v. Wade. The legislatures can decide that fetuses are deserving of protection without having to make any judgment that the entity being protected has freestanding constitutional rights." Among the other prominent defenders of Roe v. Wade who recently have voiced similar views are Professors Michael Dorf, Richard Parker, and Sherry Colb, of the Columbia, Harvard, and Rutgers law schools, respectively.

KERRY'S CHOICE

But for Senator John Kerry, none of that matters. As early as last summer, he was sending letters to constituents that dutifully parroted the party line of the pro-abortion advocacy groups.

"Although this legislation exempts performing abortions for prosecution, this bill would clearly impact a woman's right to choose to terminate her pregnancy, as that right is set forth in Roe vs. Wade," Kerry wrote. "I believe that an attack on a pregnant woman should carry increased penalties. However, legislation granting a fetus the same legal status in all stages of development as a human being is not the appropriate response. I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy. Therefore, I do not support the Unborn Victims of Violence Act."

But Kerry has been challenged by a figure now recognized by many millions of Americans — Sharon Rocha — Laci's mother, Conner's grandmother — who has emerged as an articulate advocate for the Unborn Victims of Violence Act and comparable state laws.

In a letter to the senator, Rocha noted that Kerry's own state of Massachusetts is among the 28 states that recognize fetal homicide in some circumstances, and argued that "California's unborn victim law has been [on] the books since 1970 and it does not affect the availability of legal abortion . . . What I find difficult to understand is why groups and senators who champion the pro-choice cause are blind to the fact that these two-victim crimes are the ultimate violation of choice."

Rocha took specific aim at Kerry's endorsement of "increased penalties" for crimes against pregnant women. This "sentence enhancement" approach has been endorsed by pro-abortion advocacy groups, and it will be offered as a "substitute amendment" in the Senate by Dianne Feinstein (D., Calif.) and in the House by Zoe Lofgren (D., Calif.). Supporters of the UVVA call it the "single-victim substitute," because it would actually write into federal law the doctrine that even when the mother survives and her unborn child dies, the mother was the only victim, and no one's life was lost.

"Please understand how adoption of such a single-victim proposal would be a painful blow to those, like me, who are left to grieve after a two-victim crime, because Congress would be saying that Conner and other innocent victims like him are not really victims — indeed, that they never really existed at all," Rocha told Kerry. "But our grandson did live. He had a name, he was loved, and his life was violently taken from him before he ever saw the sun."

"And what about mothers who survive criminal attacks but lose their babies? I don't understand how any senator can vote to force prosecutors to tell such a grieving mother that she didn't really lose a baby — when she knows to the depths of her soul that she did," she said.

As to merely enhancing penalties, Rocha laid it out plainly: "This is a question not only of severity, but of justice.... If this single-victim bill were the law in California, there would be no second homicide charge for the murder of Conner. But there were two bodies that washed up in San Francisco Bay, and the law should recognize that reality."

Whether federal law does come to recognize that reality will depend on whether 51 senators come down with Gloria Feldt, the ACLU, and their 10-percent position — or with Sharon Rocha, her murdered grandson, and all the other unborn victims of violence.

— Douglas Johnson is legislative director for the National Right to Life Committee (NRLC) in Washington.