The Unborn Victims of Violence Act
The Unborn Victims of Violence Act
Jon O. Shimabukuro
American Law Division
The Unborn Victims of Violence Act (P.L. 108-212) establishes a separate offense
for harming or killing an “unborn child” in utero during the commission of specified
violent crimes. This report examines the act’s provisions, and reviews similar state laws
that criminalize the killing of a fetus or unborn child. The report also discusses selected
cases that have considered the constitutionality of state fetal homicide and unborn child
homicide statutes. These cases provide some guidance as to how a reviewing court may
consider a future case involving the legitimacy of the act.
The Unborn Victims of Violence Act (“UVVA” or “the act”) establishes a separate
offense for harming or killing an “unborn child” in utero during the commission of
specified violent crimes. Signed by the President on April 1, 2004, the act ensures that
“the most vulnerable in our society are in fact protected.”1 Although statutes that
criminalize the killing of a fetus or “unborn child” exist at the state level, the sponsors of
the act maintained that, prior to the act’s passage, no protection existed for an unborn2
victim of a federal crime.
This report examines the act’s provisions, and reviews existing state laws that
criminalize the killing of a fetus or unborn child. The report also discusses selected cases
that have considered the legitimacy of state fetal homicide and unborn child homicide
1 149 Cong. Rec. S192 (daily ed. Jan. 10, 2003) (statement of Sen. DeWine). The Unborn
Victims of Violence Act was introduced in the Senate as S. 146 on January 10, 2003 by Sen.
Michael DeWine. The act was reintroduced in the Senate as S. 1019 on May 7, 2003 by Sen.
DeWine. The House version of the act was introduced as H.R. 1997 on May 7, 2003 by Rep.
Melissa A. Hart. H.R. 1997, the bill enacted by Congress, may be cited as the Unborn Victims
of Violence Act of 2004 or Laci and Conner’s Law.
The UVVA amends title 18 of the U.S. Code and the Uniform Code of Military
Justice to add new sections for the “protection of unborn children.”3 Under the act, any
person who injures or kills a “child in utero” during the commission of certain specified
crimes is guilty of an offense separate from one involving the pregnant woman. Such
crimes include drive-by shootings in furtherance of or to escape a major drug offense, and
violations of the Freedom of Access to Clinic Entrances Act.4 Punishment for the
separate offense is the same as if the offense had been committed against the pregnant
woman. In addition, an offense does not require proof that the person engaging in the
misconduct had knowledge or should have had knowledge that the victim of the
underlying offense was pregnant, or that the defendant intended to cause the death of, or
bodily injury to, the child in utero. The phrase “child in utero” is defined by the act to
mean “a member of the species homo sapiens, at any stage of development, who is carried
in the womb.”5
Certain individuals are exempt from prosecution under the UVVA. The pregnant
woman may not be prosecuted under the act. Any person administering a consensual
abortion may not be prosecuted. Finally, any person providing medical treatment to the
pregnant woman or the unborn child may not be prosecuted.
The UVVA had been introduced during the past two Congresses, and was passed by
the House during the 106th and 107th Congresses. During the 106th Congress, the House
passed H.R. 2436 by a vote of 254-172. During the 107th Congress, the House passed
H.R. 503 by a vote of 252-172. The Senate did not consider the act during either
Although physicians who perform consensual abortions are not subject to
prosecution under the UVVA, organizations that support a woman’s right to choose
opposed the act.7 These organizations asserted that the UVVA was part of a campaign
to undermine the right to abortion. They argued that recognition of a fetus or embryo as
an entity separate from the pregnant woman could obscure the U.S. Supreme Court’s
finding in Roe v. Wade that the word “person” does not include the unborn.8 If
3 The Uniform Code of Military Justice is codified in chapter 47 of title 10, U.S. Code.
4 See P.L. 108-212, §§ 2, 3, 118 Stat. 568 (2004). For further discussion of the crimes identified
in the Unborn Victims of Violence Act, see CRS Report RL32082, The Unborn Victims of
Violence Act of 2003: “Separate Offense” Provisions and Penalties.
6 See S. 1673, 106th Cong. (1999); S. 480, 107th Cong. (2001).
7 See Center for Reproductive Rights, Fetal Personhood/Unborn Victims Legislation, at
[http://www.crlp.org/hill_pri_uvva.html] (last visited June 15, 2005); NARAL Pro-Choice
America, The “Unborn Victims of Violence Act”: A Misguided Bill That Threatens Women’s
Rights, at [http://www.naral.org/facts/prosecutors.cfm] (last visited June 15, 2005).
8 See Roe v. Wade, 410 U.S. 113, 158 (1973) ( “. . . the word ‘person,’ as used in the Fourteenth
Amendment, does not include the unborn.”).
personhood could be established for a fetus or embryo, such entities’ right to life under
the Fourteenth Amendment would seem to be guaranteed.9
Supporters of the UVVA insisted that the measure was not meant to have an impact
on abortion.10 They emphasized that the act was drafted narrowly to not interfere with a
woman’s ability to have an abortion under current law. Instead, the act seeks to protect
the unborn from criminal assailants, and attempts to impose a penalty when “acts of
violence against unborn victims fall within Federal jurisdiction.”11
At least twenty-nine states have statutes that criminalize the killing of a fetus or
“unborn child”. These statutes vary with respect to the point at which criminal liability
will attach; that is, the states identify different gestational stages at which the killing of
an embryo or fetus will result in criminal liability.
In three states, the killing of a viable fetus will result in criminal liability.12 A fetus
becomes viable when it is “potentially able to live outside the mother’s womb, albeit with
artificial aid.”13 Viability usually occurs at the twenty-eighth week of pregnancy, but may
occur as early as the twenty-fourth week.14
Six states criminalize the killing of a “quick” fetus.15 Quickening refers to the period
prior to viability when the mother first feels the fetus move in her womb.16 Quickening
usually occurs between the sixteenth and eighteenth weeks of pregnancy.17
In sixteen states, the killing of an “unborn child” or the termination of a human
pregnancy without the consent of the mother will result in criminal liability.18 Like the
9 See Roe, 410 U.S. at 156-57 (“If this suggestion of personhood is established, the appellant’s
case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the
10 149 Cong. Rec. S5875 (daily ed. May 7, 2003) (statement of Sen. Hatch).
11 149 Cong. Rec. S193 (daily ed. Jan. 10, 2003) (statement of Sen. DeWine).
12 Ind. Code §§ 35-42-1-1(4), 35-42-1-6; Mich. Comp. Laws § 750.322 (limited by judicial
decision to apply only to unborn children who are viable, see Larkin v. Cahalan, 208 N.W.2d 176
(Mich. 1973); Tenn. Code Ann. § 39-13-214.
13 Roe, 410 U.S. at 160.
15 Fla. Stat. Ann. § 782.09; Ga. Code Ann. § 16-5-80; Nev. Rev. Stat. Ann. § 200.210; Okla. Stat.
Ann. tit. 21, § 713; R.I. Gen. Laws § 11-23-5; Wash. Rev. Code § 9A.32.060.
16 See Michael Holzapfel, The Right to Live, The Right to Choose, and The Unborn Victims of
Violence Act, 18 J. Contemp. Health L. & Pol’y 431 (2002).
17 Id. at 454.
18 Ariz. Rev. Stat. § 13-1103(A)(5); 720 Ill. Comp. Stat. 5/9-1.2; Iowa Code § 707.8; Ky. Rev.
Stat. Ann. § 507A.010 et seq.; La. Rev. Stat. Ann. § 14:32.5; Minn. Stat. § 609.266 et seq.; Miss.
Code Ann. § 97-3-37; Mo. Ann. Stat. §§ 1.205, 565.020, 565.024; Neb. Rev. Stat. § 28-391; N.D.
Cent. Code § 12.1-17.1-01 et seq.; Ohio Rev. Code Ann. § 2903.02; 18 Pa. Cons. Stat. § 2603;
UVVA, these statutes do not appear to identify a specific gestational stage at which
criminal liability attaches.
Finally, in four states, the killing of an unborn child at a specified gestational stage
will result in criminal liability. For example, in Arkansas, the killing of an unborn child
of twelve weeks or greater is murder, manslaughter, or negligent homicide.19 In
California, the killing of an unborn child after the embryonic stage is murder.20 Idaho
defines a murder to be “the unlawful killing of a human being including, but not limited
to, a human embryo or fetus . . .”21 And, in New York, the killing of an unborn child after
twenty-four weeks of pregnancy is homicide.22
Courts have declined to invalidate state fetal homicide statutes. In State v. Merrill,
the Minnesota Supreme Court concluded that the state’s unborn child homicide statutes
did not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S.
Constitution and were not unconstitutionally vague.23 Merrill shot a woman who was
pregnant with a twenty-seven or twenty-eight-day-old embryo. With respect to his equal
protection claim, Merrill argued that the statutes subjected him to prosecution for ending
a pregnancy while allowing a pregnant woman to terminate a nonviable fetus or embryo
without criminal consequences.24 Merrill contended that the statutes treated similarly
situated persons differently.
The court rejected Merrill’s equal protection claim on the grounds that the defendant
and a pregnant woman are not similarly situated: “The defendant who assaults a pregnant
woman causing the death of the fetus she is carrying destroys the fetus without the
consent of the woman. This is not the same as the woman who elects to have her
pregnancy terminated by one legally authorized to perform the act.”25 Unlike the assailant
who has no right to kill a fetus, the pregnant woman has a right to decide to terminate her
pregnancy. The actions of the woman’s doctor are based on the woman’s constitutionally
protected rights under Roe.
Merrill advanced two arguments for finding the statutes to be unconstitutionally
vague. First, he contended that the statutes failed to give fair warning of the prohibited
conduct. Merrill maintained that it was unfair to punish an assailant for the murder of an
unborn child when neither he nor the pregnant woman may be aware of the pregnancy.
However, the court found that the statutes provided fair warning based on the doctrine of
S.D. Codified Laws § 22-16-1; Tex. Penal Code Ann. § 1.07(a)(26); Utah Code Ann. § 76-5-201;
Wis. Stat. §§ 939.75, 940.04.
19 Ark. Code Ann. §§ 5-1-102(13)(B)(i)(a), 5-10-101 et seq..
20 Cal. Penal Code § 187(a).
21 Idaho Code § 18-4001.
22 N.Y. Penal Law § 125.00.
23 450 N.W.2d 318 (Minn. 1990).
24 Merrill, 450 N.W.2d at 321.
25 Merrill, 450 N.W.2d at 321-22.
transferred intent.26 The court noted that even if the offender did not intend to kill a
particular victim, he should have fair warning that he would be held criminally
accountable given that the same type of harm would result if another victim was killed.
Merrill’s second argument was that the statutes encouraged arbitrary and
discriminatory enforcement by using the phrase “cause the death of an unborn child” to
identify prohibited conduct without actually defining when death may occur.27 Merrill
believed that the failure to identify when death occurs for the unborn child would result
in judges and juries providing their own definitions. Moreover, Merrill asserted that
because an embryo is not alive, it could not experience death.28
The court determined that to have life means “to have the property of all living things
to grow, to become.”29 The court avoided the question of whether the unborn child should
be considered a person or human being. Instead, the court observed that criminal liability
“requires only that the embryo be a living organism that is growing into a human being.
Death occurs when the embryo is no longer living, when it ceases to have the properties
of life.”30 Thus, the trier of fact would simply have to determine whether an assailant’s
acts caused the embryo or unborn child to stop growing or stop showing the properties of
In People v. Ford, the Appellate Court of Illinois concluded similarly that the state’s
fetal homicide statute did not violate the Equal Protection Clause of the Fourteenth
Amendment and was not unconstitutionally vague.31 Like Merrill, Ford argued that the
statute treated similarly situated people differently. While a pregnant woman could
terminate her nonviable fetus without punishment, an assailant would face criminal
penalties for killing such a fetus. Following the Minnesota Supreme Court, the Illinois
court found that the defendant and a pregnant woman are not similarly situated.32 In
addition, the court determined that the statute could be upheld as rationally related to a
legitimate governmental purpose. Because the statute did not affect a fundamental right
held by the defendant, and because it did not discriminate against a suspect class, the
validity of the statute could be considered under the rational basis standard of review.
The court concluded that the statute was rationally related to a legitimate governmental
interest in protecting the potentiality of human life.33
Ford’s vagueness argument focused on the statute’s use of the phrase “cause the
death of an unborn child.” Ford contended that the absence of statutory definitions for
26 Merrill, 450 N.W.2d at 323.
28 Merrill, 450 N.W.2d at 324.
31 581 N.E.2d 1189 (Ill. 1991). In a subsequent proceeding, Ford v. Ahitow, 104 F.3d 926 (7th
Cir. 1997), the U.S. Court of Appeals for the Seventh Circuit determined that habeas corpus relief
was not appropriate for Ford.
32 Ford, 581 N.E. at 1199.
33 Ford, 581 N.E. at 1200.
when life begins and death occurs would result in the application of subjective definitions
by the trier of fact, and lead to the arbitrary and discriminatory enforcement of the
statute.34 Citing Merrill, the court maintained that the trier of fact would be required only
to determine whether there was an embryo or fetus that was growing into a human being,
and whether because of the acts of an assailant, that growing was stopped. The statute did
not require the trier of fact to apply its subjective views.
Passage of the UVVA may prompt similar cases that challenge the validity of the
act.35 Equal protection and vagueness claims, like those alleged in Merrill and Ford,
would probably be asserted. For that reason, the two cases provide some guidance as to
how a court may consider a future case involving the UVVA.
35 In 2004, a federal district court in Pennsylvania granted a motion to dismiss an action that
sought to repeal part of the Unborn Victims of Violence Act and Roe v. Wade. The pro se
complaint alleged, in part, that the Act superseded the Court’s decision in Roe. The case was
dismissed on procedural grounds. See Carlin v. United States, No. Civ.A. 04-1666, 2004 WL