Anti-abortion law through the back door

In supporting the Unborn Victims of Violence Act, the US House of Representatives has taken the first step towards recognising a fetus as a separate person in law. What will this mean for women?

Michael Fowler

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Topics Politics

For a man who does not think the USA is ready to make abortion illegal, President George W Bush has managed to support several moves that will restrict access to the procedure, for women in the USA and abroad.

Perhaps the most serious development was one that was, according to its supporters, ‘not an abortion bill’. The United States House of Representatives has taken the first step towards recognising a fetus as a separate person in law.

In voting 252-172 in support of the Unborn Victims of Violence Act (HR 503), the House proposed to make it a crime to harm a fetus during an attack on a pregnant woman. If suspected of such a crime, a defendant may face charges related to the assault on the fetus as well as the woman. The Act must still win approval from the Senate before going to president Bush for signature.

The Unborn Victims of Violence Act is the latest in a long line of anti-abortion measures that have been crafted to avoid confronting the landmark 1973 Roe v Wade Supreme Court decision, which governs abortion in the USA. By dressing up abortion restrictions in language that purports to protect minors, pretends to represent the best interests of women, and emphasises the graphic details of late-term abortions, the anti-abortion lobby has successfully prosecuted a strategy with serious implications for abortion rights in the USA.

The Supreme Court, the ultimate arbiter of the constitutionality of any given law, has never accepted the definition of a fetus as a human being. But this law, if it reaches the statute books, will do just this. As the Center for Reproductive Law and Policy pointed out, ‘By treating the fetus – rather than the woman – as the crime victim, the bill…undermines women’s rights’. It creates a precedent whereby a zygote, blastocyst, embryo, or fetus could be regarded as a ‘person’ under the law.

While the Act does not permit the prosecution of any woman in relation to self-inflicted wounds, it will surely not be too long before legislation is introduced to allow authorities increased control over the actions of pregnant women who may enjoy a glass of wine, a cigarette or even illicit drugs while pregnant.

While it is unclear if this Act will pass into law, it is certain that the Bush administration has brought a new attitude to reproductive rights. While former president Bill Clinton could be relied upon to veto all restrictions on abortion, and said that he would veto the bill that passed by almost the exact same margins in 1999, the response from president Bush has been the opposite. Prior to the vote, he indicated that he would sign the bill into law.

Somewhat surprisingly, the Senate’s Republican leadership has shown no sign of seeking to put the bill on the legislative agenda in the near future. While there is a 50-50 split between Democrats and Republicans in the Senate, vice president Dick Cheney would have no problem casting the deciding vote to support the bill. However, it is certain that the Senate battle would be hard fought, and it may be that president Bush would prefer not to burn too many bridges before his own priorities – tax cuts and education reform – pass in the Senate.

In the last six years, according to the National Abortion and Reproductive Rights Action League (NARAL), there have been 264 anti-choice measures enacted by states. In 2000 alone, 45 new measures were enacted. (These measures include moves against access to contraception and compare to 27 pro-choice measures in 2000.)

Supporters of the latest move have gone out of their way to deny that it had anything to do with abortion rights. In fact, they said that it would ‘help prosecutors combat the growing problem of violence against pregnant women’, about which there has been much coverage recently. One legislator cited a widely reported study published in the Journal of Midwifery and Women’s Health earlier this year, which seemed to suggest that the leading cause of death among pregnant women is homicide.

The study examined 651 autopsy charts from Washington, DC between 1988 and 1996 and found 13 homicides of pregnant women. This was compared to 21 pregnancy-related deaths. From the reporting, a disinterested reader might reasonably have assumed that over a third of deaths (38 percent) during pregnancy resulted from homicide. It is worth bearing in mind two mitigating factors: these statistics were taken during a time that the US capital was a very violent city; and that thankfully, due to modern medicine, very few women die from pregnancy-related illnesses.

The new bill will have no impact upon state laws, about half of which already have similar legislation on the books. This federal bill will only come into play when federal authorities arrest somebody for an offence against a pregnant woman during one of the already mandated ‘federal crimes of violence’. (There are over 60 of these relating to specific acts occurring on federal property, against federal officials, postal workers, and the like.) The authorities will then be able to bring a second charge if the attacker has injured or killed the fetus.

Critics of the bill have not been silent. Representative Carolyn Maloney, a Democrat from New York, said that the bill’s definition of a fetus was ‘so broad it would cover three cells’. She continued, ‘Make no mistake: this is an attack on a woman’s right to choose’. According to a spokeswoman from the Center for Reproductive law and Policy, the vote showed ‘that the real goal of this legislation is not to deter and punish criminal conduct, but to erode the reproductive rights of women’.

President Bush has earned the opprobrium of reproductive rights organisations during his first 100 days in office, for his attacks on reproductive rights, including:

his reinstatement of the ‘global gag rule’, which refuses funding to international organisations if cthey use their own money to provide information about abortion services;

his letter of support for the anti-abortion March for Life on 23 January 2001, also in Washington, DC;

his appointment of a vehemently anti-abortion attorney general and health and human services secretary (who oversees the Food and Drug Administration, which regulates the abortion pill, RU 486);

his opposition to the use of federal funds for research on fetal tissue or stem cells derived from abortions.

However, president Bush has said that he will not use abortion as a litmus test for Supreme Court justice appointments, and that the country is not ready yet to outlaw abortion.

Other bills that may also be debated during president Bush’s first term include a bill to prevent anybody except a parent bringing a minor across state lines for an abortion; restrictions on who can administer the abortion pill, RU486; and a ban on intact dilatation and extraction, a method of late-term abortion described as ‘partial birth abortion’ by anti-abortionists.

Whatever the legal implications of this particular move, we can be sure that the anti-abortion lobby will become more and more innovative in seeking to control the reproductive rights of women.

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