77th Texas Legislative Session (2001)
Bills That Did Not Pass
SB 269: Why it is Anti-Life
While similar to Representative Ray Allen's and Senator Ken Armbrister's Prenatal Protection Act (HB 509/SB 815), SB 269 has grave deficiencies contained within it. This bill takes a one-victim approach rather than a two-victim approach, as the Prenatal Protection Act does. SB 269 would merely increase the penalties for those who cause a pregnant woman to miscarry, rather than recognize two victims of the crime.
By using the language "products of human conception" to define "miscarriage" and "stillbirth", SB 269 treats the unborn child as a mere "thing" of the mother. This is a phrase which pro-abortion advocates use to intentionally dehumanize the unborn child. As Pro-Life advocates, we acknowledge that the unborn child is a unique human individual and the language of our laws must reflect this. If a crime is committed against the child in utero, then we should call it so (please see the key points in favor of the Prenatal Protection Act). The language of SB 269 would further codify the language of the pro-abortion position (outside the context of abortion) and the culture of death--the very culture we are fighting.
However, what makes this language even more unacceptable is that pro-abortion forces (i.e., Planned Parenthood, National Abortion Rights Action League, and the ACLU) have tried to destroy other Pro-Life Prenatal Protection Acts (also known as Unborn Victims of Violence legislation)--using identical language--at the federal and state level. The political interests of these pro-abortion organizations is to thwart any attempt to legally recognize the humanity of the unborn child. At the federal level, both pro-abortion legislators and pro-abortion advocacy groups used identical language to gut the Unborn Victims of Violence Act. In Montana, Montana Right to Life is currently fighting off pro-abortion amendments which would change there Pro-Life two-victim approach into a one-victim approach. Again, pro-abortion advocacy is pushing the "one-victim" language.
Furthermore, on a pragmatic level, SB 269 is problematic in the case that both mother and child are killed. As the bill suggests, one would have to cause the miscarriage of the child in order for the perpetrator to be charged with an enhanced penalty. If the mother was killed, however, she would not miscarry, so it is doubtful that any enhanced penalties could be brought against the perpetrator. In essence, the capital offense would consume the lesser offense. If SB 269 becomes law, in this circumstance the perpetrator would not be charged with any crime against the unborn child.
Also, SB 269 does not address the issue if the unborn child is injured in utero by criminal act but survives the injury. The local district attorney would be unable to press any criminal charges against the perpetrator under this circumstance.
Unfortunately, because of the language contained within the bill and its practical problems, Texas Right To Life must oppose SB 269. Even more regrettably, this opposition comes against one of the staunchest Pro-Life supporters in the Texas Senate, Senator Steve Ogden, who is carrying the bill. While we praise Senator Ogden for his good intentions, the language of this bill is simply unacceptable to the Pro-Life cause.
Key points of the bill in Opposition to SB 269
- SB 269 takes a one-victim approach. Essentially, the bill implies that the child is a mere "thing" of the mother. SB 269 is quite explicit when defining miscarriage and stillbirth to use terms such as "products of human conception" to describe the unborn child. These are terms which many pro-abortion advocates use to intentionally dehumanize the unborn child.
- What this one-victim approach essentially does is codify the pro-abortion position. The child is only a mere thing of the mother as stated above. SB 269 would solidify the Roe position even outside the context of abortion.
- SB 269 is problematic in the case in which both mother and unborn child are killed in the commission of a crime. In this circumstance it is doubtful that any enhanced penalties could be charged against the perpetrator since the mother cannot suffer any additional loss since she has been killed. In essence, the capitol crime would consume the lesser offense, which is the causing of the miscarriage. No justice could be brought to bear on the behalf of the unborn child.
- Also, SB 269 does not address the issue if the unborn child is injured and survives. Typically, if a crime is committed against someone then that person has both civil (redress to the individual) and criminal (redress to society) recourse. It is in this circumstance that the local District Attorney is unable to press criminal charges against the perpetrator on the behalf of the unborn child, which would then make an inconsistency under the law.
- Virtually similar language is proposed at the federal level to try to gut the Unborn Victims of Violence Act. This language is proposed by pro-abortion advocates such as NARAL, NOW, Planned Parenthood, and the ACLU. It is in their political interests to thwart any attempt to recognize the humanity of the unborn child under any area of law. Again, SB 269 can be harmful to the Pro-Life forces at the federal level, which are working with the Bush administration, to pass a strong Unborn Victims of Violence Act.
Fetal Pain Protection (HB 1244)
Most people are unaware that unborn children can actually feel pain. In the 1980's, studies emerged showing that the unborn child is sufficiently developed to feel pain. By the late 1990's, the medical community agreed that a child feels pain at 20 weeks gestation. Moreover, since their skin has not fully developed, they have exposed nerves and probably experience heightened pain. When performing prenatal surgery, doctors now routinely provide pain control for the unborn child. To inform people of the unborn baby's keen susceptibility to pain, Rep. Leo Berman proposed the Fetal Pain Protection Act (HB 1244). Under the landmark U.S. Supreme Court ruling Planned Parenthood of Pennsylvania v. Casey, the Court determined that the state has a legitimate interest in ensuring that a mother receives factual and scientifically accurate information about the development of her unborn child. HB 1244 falls under this Casey decision. Statistics indicate that when a woman is given scientifically accurate information about her unborn child, she tends to choose Life. HB 1244 would require that a woman be made aware that her unborn baby, just like any other human, does feel pain. HB 1244 would also allow pain relief to be provided for unborn children in the tragic circumstance that the mother chooses to have an abortion.
Think about it: at the age when some children have prenatal surgery to save their lives, others are aborted. This bill will give a face to the unborn child and draw us closer to a Culture of Life, where the humanity of the unborn is recognized, cherished and protected.
Key points of the bill
- Filed by Representative Leo Berman on February 5, 2001.
- Would inform a woman who is 20 weeks pregnant or beyond of the development of her unborn child's nervous system.
- Since the late 1990's, the medical community has agreed that at 20 weeks gestation the unborn child has the capability of feeling pain.
- Under the U.S. Supreme Court Casey decision, the State has a legitimate interest in providing scientifically accurate information to the woman about her developing unborn child.
- In the tragic circumstance that the mother would want to continue with the abortion, she would have the ability (under HB 1244) to provide pain control to her unborn child.
- Doctors routinely provide pain control to unborn children for corrective prenatal surgery; so the question remains why not give pain control to the child who is about to undergo an abortion procedure, which doctors agree is extremely painful to the unborn child?
- This type of legislation begins to give the unborn child a face--that it is not a mere blob of tissue, but rather a human being that does have the capability of feeling pain such as you or I.
- Statistics indicate that when a mother in a crisis pregnancy situation is given scientifically accurate and factual information she tends to choose life!
The Prenatal Protection Act (HB 509/SB 815)
The current state law does not recognize an unborn child as a victim with respect to violent crimes. Thus, if a criminal attacks a mother and kills her unborn child, he can be charged only with battery against the woman. Texas state law only recognizes one of the two lives involved, resulting in grave injustices. Currently, eleven states do recognize and provide protection for these unborn children throughout the entire period of in utero development. We need to add Texas to the list! The Prenatal Protection Act would apply this two-victim principle to existing our state laws that deal with acts of violence.
Under the Prenatal Protection Act filed by Rep. Ray Allen and Sen. Ken Armbrister, if an unborn child is injured or killed during commission of an already-defined state crime of violence, then the assailant could be charged with a second offense on behalf of the second victim-the unborn child. This bill would recognize that a criminal has claimed two human victims when he attacks a pregnant mother and injures or kills her unborn child.
Key points of the bill
- The Prenatal Protection Act would establish that if an unborn child is injured or killed during commission of an already-defined state crime of violence, then the assailant may be charged with a second offense on behalf of the second victim, the unborn child. The bill would recognize that when a criminal attacks a pregnant woman, and injures or kills her unborn child, he has claimed two human victims. The bill would apply this two-victim principle to existing state laws dealing with acts of violence.
- In current state criminal law, an unborn child is not recognized as a victim with respect to violent crimes. Thus, for example, if a criminal beats a woman, and kills her unborn child, he can be charged only with the battery against the woman, because the unborn child's loss of life is not recognized by the law. This gap in state law results in grave injustices. Cleo Justice was 8½ months pregnant when her former boyfriend shot her in the head and in the abdomen. The bullet struck her unborn child in the liver. The baby was delivered by emergency Cesarean section; however, the child died just 13 hours later. The Travis County District Attorney's office was unable to press charges against the perpetrator since the child's injury was committed while he was still in the womb.
- However, 24 states have already enacted laws that recognize unborn children as human victims of violent crimes. Eleven (11) of these states provide this protection throughout the period of in utero development, while the other 13 provide protection during specific stages of their development.
- The bill explicitly provides that it does not apply to any abortion to which a woman has consented, to any act of the mother herself (legal or illegal), or to any form of medical treatment. Nevertheless, TRTL supports the bill because it achieves other pro-life purposes that are worthwhile in their own right: the protection of unborn children from acts of violence other than abortion, the recognition that unborn children may be victims of such violent criminal acts, and the punishment of those who harm unborn children while engaged in state prohibited acts of violence.
- It is well established that this type of legislation does not conflict with the Supreme Court's pro-abortion decrees (Roe v. Wade, etc.). Criminal defendants have brought many legal challenges to the state unborn victim laws mentioned above, based on Roe and other constitutional arguments, but all such challenges have been rejected by the courts. (A list of pertinent court decisions is available on request.)
- Moreover, in the 1989 case of Webster v. Reproductive Health Services, the U.S. Supreme Court refused to invalidate a Missouri statute that declares that "the life of each human being begins at conception," that "unborn children have protectable interests in life, health, and well-being," and that all state laws "shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," to the extent permitted by the Constitution and U.S. Supreme Court rulings. A lower court had held that Missouri's law "impermissibl[y]" adopted "a theory of when life begins," but the Supreme Court nullified this ruling, and held that a state is free to enact laws that recognize unborn children, so long as the state does not include restrictions on abortion that Roe forbids. The Minnesota Supreme Court took the same view in upholding the Minnesota law: "Roe v. Wade . . . does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].
- In one area, federal criminal law already recognizes that an unborn child is not merely a "condition" of the mother. In 1994, Congress codified a longstanding common law doctrine by enacting a flat prohibition on the execution of any woman who carries an unborn child. (18 U.S.C.A. '3596: "A sentence of death shall not be carried out upon a woman while she is pregnant.") We doubt that any member of Congress B even the most zealous advocate for "abortion rights," or even the most vigorous supporter of the death penalty B would favor the repeal of that law. After all, who does not recoil from the very thought of what the U.S. Supreme Court described (in upholding the common law doctrine, in Union Pacific Railway v. Botsford) as "the taking of the life of an unborn child for the crime of the mother"? And yet, whether one favors or opposes the death penalty in principle, there is really no rational basis for delaying the execution of a woman merely because she is pregnant -- except the knowledge that such an act would take two human lives, not just one. The Prenatal Protection Act would simply extend, into the rest of the Texas criminal code, the same common sense recognition: that when a criminal attacks a pregnant woman, injuring or killing her and injuring or killing her unborn child, he has claimed two victims.
- HB 509 and SB 815 have come under vehement attack from pro-abortion groups such as TARAL, Planned Parenthood, and the Texas ACLU. Even though the bill deals with acts of violence other than abortion, the pro-abortion lobby's ideology apparently compels it to deny the very existence of unborn human beings in any area of the law.
- Some opponents of the bill have charged that the bill would punish harm to the unborn child "utterly ignoring the harm to the pregnant woman." Others have charged that the bill would "separate the mother from her fetus." These objections reflect misunderstandings or misrepresentations of how the bill is structured. In reality, the bill would allow the government to win a conviction for harm to an unborn child only if it first proves that the defendant violated the Texas Criminal Code with respect to the mother.
- Some opponents of the bill have charged that it would allow defendants to be convicted without a showing of intent to do harm. This is false. Under the bill, it is necessary to prove beyond a reasonable doubt that a defendant had intent to do criminal harm, at least towards the mother. If such criminal intent towards the mother is proved, then the defendant also will be held responsible for the harm done to the unborn baby, under the doctrine of "transferred intent." Transferred intent is a well-established principle in the law. (If a man shoots at a woman with intent to kill, and the bullet misses her, passes through a wall, and kills a child who the shooter did not know was there, he can be convicted of the murder of the child.) As the Minnesota Supreme Court ruled in upholding the Minnesota unborn victims law, "The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].
- In order to win a conviction under the bill, it would be necessary for the prosecution to prove beyond a reasonable doubt that a human being (1) already existed, and (2) was unborn child. Moreover, even after the prosecution has met that burden, it must also prove beyond a reasonable doubt that a defendant's criminal conduct caused the death of the child in-utero. The mere possibility or even the strong likelihood that a defendant's criminal conduct caused a baby's death would not suffice because the bill requires proof beyond a reasonable doubt.
Pro-Life License Plates to Promote Adoption in Texas (HB 1257)
State Representative John Shields (R-San Antonio) has introduced House Bill 1257, which would authorize the Texas Department of Transportation to issue "Choose Life" specialty license plates. The additional fee of $20 for the plate would go to adoption agencies in Texas. Rep. Shields is circulating a petition to support this bill and needs at least 3,500 signatures of people who would purchase the plate.
When "Choose Life" license plates were implemented in Florida, 17,000 plates were sold within just eight months-setting a record among specialty license plates in their state. Similar bills have been quite successful in other states.