I am pleased to address the question of the constitutionality of the Unborn Victims of Violence Act of 1999. [Hereafter, “Act”.]

The first question about the constitutionality of the Act is not whether it violates a right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade. That would be the first, and only interesting, question where a government of general jurisdiction, like our state governments, passed a law like this Act. About half the states have effectively done so, either by separate enactment or by subsuming harm to the unborn within homicide protections of murder or manslaughter. Courts throughout the country have found these laws to be compatible with the right articulated in Roe.

Our national government possesses extensive but not indefinite powers, large but not unlimited jurisdiction. Ours is a national government of specific and enumerated powers. It possesses no general power to protect persons, including unborn persons, against private violence. The closest the national government comes to such an authority is the power conferred by the Fourteenth Amendment’s guarantee to all “persons” of the “equal protection” of state laws, including state laws against assault and homicide. Upon an appropriate finding of fact by Congress that some identifiable class of persons – say, a racial or ethnic minority, or a particularly vulnerable and politically powerless group, like the infirm or unborn – is, on a widespread basis, unequally exposed to private violence by exclusion from, or lax enforcement of, state homicide laws, direct federal protection against such discrimination would be constitutional.

The first question is whether there is an enumerated power which authorizes the protections accorded the unborn by the Act. With the recent revival of judicially enforceable limits upon Congress’s commerce power – see U.S. v. Lopez - and the narrow reading of Congress’s “enforcement” power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, one might expect some debate about the enumerated bases for the Act. Not so. The Act does not engage recent developments, and is subjected to no doubt of its constitutionality because of them. For the Act does not extend Congress’s reach; no conduct whatsoever which is presently free of federal regulation will be regulated if the Act becomes law. No conduct which was lawful is to be unlawful; no conduct which was legal is to be illegal. The Act is essentially a punishment enhancement provision.

The Act is perhaps best compared in this regard to the Racketeer Influenced and Corrupt Organizations Act – RICO. RICO, too, relies upon (what it expressly calls) “predicate” offenses – and then lists them, as does the Act – in order to set up what, like the Act, is essentially an enhanced punishment statute. The Act relies upon predicate acts for its constitutional hook, one might say. If there is any question about the constitutionality of its reach, then, it is a question of the constitutionality of the “predicate” offense, and not about this Act.

(There is one question to be taken up concerning the constitutionality of the reach of this Act, where federal authority is predicated entirely upon the identity of an individual attacked. I postpone it until later, for reasons that I believe will be more clear then.)

The Act relies upon established criminal law principles of transferred intent to affix the enhanced penalty to an already criminal act. The basic idea is simple: a bad actor with the requisite malice to, in the language of the bill, “violate [] any of the provisions of law listed in subsection (b),” may be charged with an additional violent offense, without evidence of malice towards or even knowledge of, the baby in utero where the malefactor in fact causes harm to it. This established principle is perhaps classically illustrated in felony murder statutes, where the malice manifested in the commission of a felony is transferred to what may be even an accidentally caused death. So, for example, an arsonist who honestly believes the building he torches is unoccupied is nonetheless indictable for felony murder if, by chance, someone is inside, and is killed.

Nothing in the Act affects, much less unconstitutionally restricts, the mother’s right to terminate her pregnancy. (The current expression of the constitutional standard is the “undue burden” test of Casey v. Planned Parenthood.) I can scarcely imagine language more adequate to the preservation of the right to abortion than that found in section (c) of the Act. Not only is the mother and all those cooperating with her in securing an abortion completely immunized against all potential liability. No woman may be prosecuted under this Act “with respect to her unborn child.” No woman engaged in predicate criminal conduct may be prosecuted for harm to her child, even where she did not intend to abort. So, a woman engaged in a hijacking or assault upon a federal juror or in animal terrorism or in any covered activity and who, as a result (of flight or some mishap) causes harm or death to her own fetus, is beyond prosecution under this Act, even though she may be liable for hijacking or assault upon a juror or animal terrorism. The Act simply does not inhibit the woman’s freedom to choose whether to bear a child or not.

In fact, one of the state interests which might be said to be promoted by the Act is precisely the liberty articulated in Roe. A woman’s freedom to carry a baby to term is inhibited or denied by conduct which results in harm or death to her unborn child.

Someone might object that nevertheless the Act, in its protection of what the Act calls “unborn children” to practically the same extent as other persons is somehow inconsistent with Roe, or its progeny. Is there no difference, the objection might hold, between this Act and a flat Congressional declaration that the unborn are persons? And is not that declaration inconsistent with Roe, or it progeny.

The answer to this challenge would very likely have to be yes if the Supreme Court in Roe or some other case held that the unborn are not persons. But the Court has never so held. The Roe court said that it did not “need [to] resolve the difficult question of when life begins” (410 U.S. at 159). The Court there said the “the judiciary...is not in a position to speculate as to the answer.” (Id.) In no general or broad way, moreover, did the Court hold that the states or the Congress operated under a similar disability. All that the Court held in this regard was that Texas (and thus any other governmental body, including for argument sake, the Congress) “could not override the rights of the pregnant woman” by adopting an answer to the question of when life begins, that she could not be deprived of all freedom of choice by the consequences of legislation regarding the beginning of life. (See 410 U.S. at 162). But this Act does not affect, much less “override,” the rights of any pregnant woman. The Roe court opined that the unborn were not to be considered persons in the “whole” sense, an opinion consistent with treating the unborn as persons for some purposes, like inheritance and tort injury, purposes which the Roe court itself recognized as legitimate.

This understanding of Roe was explicitly confirmed by the Supreme Court in the 1989 Webster decision. There the state of Missouri had legislated that the “life of each human being begins at conception,” and the “unborn children have protectable interests in life, health, and wellbeing.” The 8th Circuit Court of Appeals seems to have adopted the view of Roe stated as an “objection” here, that the state had, in light of Roe, “impermissibl[y]” adopted a “theory of when life begins.” But the Supreme Court reversed this part of the 8th Circuit holding, stating that its own prior decisions, including Roe, meant “only that a state could not justify an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the state’s view.” (Emphasis added). Since this Act is in no way questionable under Roe apart from the viewpoint issue, the matter is settled: Congress is as free as was the state of Missouri to conclude, and to enforce outside the parameters of Roe, its view that life begins at conception. If there remains something anomalous about the situation, it is an anomaly engendered by Roe, and not by this Act.

Now, the postponed question. What if federal jurisdiction is predicated entirely upon the identity of a particular individual, say the President or a cabinet officer or foreign dignitary? Is there a satisfactory basis for enhanced punishment of a violator of, for example, 18 U.S.C. 1751, one who attacks the President and, who as a result of that felonious conduct, injures or kills her unborn child?

The answer must start with the recognition that, strictly speaking, it is only the discharge of federal functions, and not persons just as such, which grounds federal criminal jurisdiction, even in cases like our example. Protection of federal officers and jurors and foreign visitors of a certain rank is justified by virtue of the national interest in protecting the functions which those persons perform, or (to put it differently) the offices whose duties they discharge. These functions are impeded by assaults upon the person of the various officers, as well as by threats to them and even to their families. So it would be constitutional to extend federal protection to the entire families of at least certain federal officers, to insure that nothing distracted them or caused them to be derelict in their duty. It seems a reasonable judgment for Congress to make that there is a distinct, punishable harm to the discharge of federally imposed duties where the unborn child of a protectable person is harmed or destroyed. This would seem exactly the reasoning behind 18 U.S.C. 115, which protects members of the immediate family of a United States official or law enforcement officer against assault, murder and kidnapping.