The so-called "Unborn Victims of Violence Act" does not protect women or children

March 05, 2004

The New York Times recently editorialized that the Unborn Victims of Violence Act is on "a dangerous path to fetal rights" that could send "the nation down a legal path that could undermine the privacy rights of women." South Carolina’s experience proves this to be true.

In 1984 South Carolina, by judicial decision, essentially adopted such a law, holding that a man who caused the death of a fetus by assaulting a pregnant woman could be prosecuted for murder.1

That recognition of fetal rights was then used in 1997 as the basis for finding that viable fetuses are full legal "persons," and as a result, that South Carolina's criminal child endangerment statute could be used to punish a pregnant woman who engages in any behavior that might endanger her fetus.2

The state attorney general's office has now interpreted this recognition of fetal rights as providing the legal basis for charging women who have post-viability abortions -- of any kind and for any reason -- with murder and subjecting them and anyone who assists them to the death penalty. 3

The federal fetal rights bill not only can undermine women's reproductive rights and children's health, in South Carolina, a similar law already has.

* To the best of our knowledge since 1984 only one man has been prosecuted and convicted of murder based on the recognition of fetal personhood. In contrast between 50 and 100 women in South Carolina have been arrested based on claims of fetal person hood. Women who gave birth to healthy babies, but nevertheless were deemed to have put those pregnancies at risk have been sentenced to jail terms for as long as 10 years. 4

* A pregnant woman in South Carolina has been arrested because she was pregnant and used alcohol. 5

* When a thirteen-year-old girl experienced a stillbirth her parents were arrested: One charge was for unlawful conduct to a child—because they had allegedly "failed to get proper care for the fetus."6

* A woman who suffered a miscarriage was arrested and charged with homicide by child abuse. The prosecutor who admitted there was no evidence of drug use nevertheless insisted that the miscarriage was a "crime" that the woman had to take responsibility for. 7

* Since South Carolina has declared that unborn children may be "protected" through the state’s criminal laws, infant mortality in the state has increased for the first time in a decade." 8

* The state has also seen a twenty percent increase in abandoned babies suggesting that women fearful of criminal punishment are leaving their babies rather than risk arrest. 9

* In 1970 the California Legislature created the crime of fetal murder but carefully limited it to the acts of third parties that result in the death of a fetus. It specifically excluded the conduct of the pregnant woman herself and later repeatedly refused to amend the statute to impose criminal liability on women for such things as substanceuse during pregnancy. Women in California who suffered stillbirths were nevertheless prosecuted under the state's fetal homicide statute. 10

1. State v. Horne, 319 S.E.2d 703, 704 (S.C. 1984) (holding that pursuant to the court's authority to expand crimes that existed at common law, it was creating prospectively a new crime of feticide in a case where a man brutally assaulted his pregnant girlfriend causing the death of the fetus. Because of the prospective application, the defendant was not subject to the new legal interpretation).
2. Whitner v. State 492 S.E.2d 777 (S.C. 1997), cert. denied, 118 S. Ct. 1857 (1998).
3. Audiotape of Oral Argument, State v. Ard, 505 S.E.2d 328 (S.C. 1998) (May 27, 1998)
4. Tolliver v. State, No. 90-CP-23-5178, Order (S.C. Ct. C.P. Greenville County Aug. 10, 1992) (addressing conviction of a woman whose healthy infant tested positive for exposure to cocaine and who after pleading guilty on charges of child abuse was sentenced to 10 years in jail.)
5. Melissa Manware, Infant Born Drunk: Intoxicated Mom is Facing Charges, The State (Columbia, S.C.), Sept. 24, 1998, at A1 (reporting that the woman was charged with unlawful conduct toward a child after going into labor while using alcohol).
6. Associated Press, Three people face charges in stillbirth, The Post and Courier, (Charleston, S.C.) (July 22, 1999) at 6-B.
7. Kathy Ropp, Mothers Charged with 'Homicide by Child Abuse' The Hory Independent Newspaper, (Conway, S. C.) Aug. 19, 1999
8. Infant Mortality on Rise in '97, Post & Courier (Charleston, S.C.), Feb. 19, 1999, at B1.
9. Associated Press, Discarded Children Increasing, Post & Courier (Charleston, S.C.) April 19, 1999.
10. Jaurigue v. Justice Court, No. 18988, Excerpts of Transcript (Super. Ct. San Benito Cty, Cal. Aug. 21, 1992 (dismissing fetal homicide when a stillbirth occurred), writ denied, (Cal. App. 1992); People v. Jones, No. 93-5 Transcript of Proceedings (J. Ct. Siskiyou Cty, Cal. July 28, 1993 (dismissing fetal homicide charges brought against Lynda Jones, a 36 year old woman with no prior criminal record other than minor traffic violations, after she gave birth prematurely and the infant died).