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A conservative dissent on the Unborn Victims of Violence Act

By W. James Antle III
web posted July 30, 2001

Since George W. Bush took office, Congress has taken up a series of legislative efforts to both limit the affects and challenge the premises of legal abortion. The Bush administration has admirably supported these measures, many of which have pro-choice supporters and all of which are politically possible. Slow but steady gains are being made after years of frustrated attempts at radical change.

Opponents are left sputtering about the assumptions these modest efforts make about fetuses and their humanity. This only reinforces the very point pro-life incrementalists are trying to make. After all, what else is a human female going to be pregnant with? The choice advocates are in the uncomfortable position of either allowing these assumptions to be ingrained in law or taking positions that by themselves are untenable. To date, such positions would entail opposing expanded health coverage for pregnant women, condoning literal infanticide and, most recently, refusing to adequately punish assaults on pregnant women.

The last is a reference to the Unborn Victims of Violence Act. This bill would make it a federal crime in many instances to attack pregnant women and cause injury or death to the fetus. This would protect a woman's choice to have a child and, more controversially, recognize that such attacks have two victims: The mother and her unborn child. Several states have adopted similar legislation and some have gone so far as to make causing the death of an unborn child through assault a crime called feticide.

If it weren't for the politics of abortion, this bill and its premises would be totally uncontroversial. Unborn children really are distinct victims of such crimes as it is they who will live with the consequences of them once born, or end up not being born at all. Of course, if it weren't for the politics of abortion, and abortion is by the way specifically exempted in this bill, serious conservatives would not support this federal legislation. It is a usurpation of power not granted the federal government by the Constitution and reserved to the states and the people.

The Unborn Victims of Violence Act would take a number of state and local crimes and make them federal crimes without constitutional justification or even a practical enforcement mechanism. As James Markels argued in a column for Liberzine.com, "Such a law would be flat-out unconstitutional, for the exact same reasons the Violence Against Women Act was ruled unconstitutional: Congress doesn't have power to federalize violent crime against women, pregnant or otherwise."

Chief Justice William Rehnquist

Conservatives opposed the Violence Against Women Act and much of the Clinton administration's anti-crime legislation on similar grounds. Figures ranging from Chief Justice William Rehnquist to former Attorney General Edwin Meese have bemoaned the move to federalize criminal law. This unfortunate, impractical and unconstitutional trend has characterized the federal war against drugs, crime, terrorism and now, under Republican leadership, abortion.

The intentions of this bill are laudable and states should be encouraged to adopt similar legislation. My pro-life position dictates that the unborn should receive the same legal protection as other human beings, not a preferred legal status. It is not a federal crime to attack a woman walking down the street with her child, injuring or killing both of them. Yet the absence of federal statutes to this affect by no means makes it legal anywhere in the United States to do so. Why should there be any legal distinction between a mother and her child on the basis of whether she has been born, either unfavorable or favorable?

Most violent crime simply is not a federal matter. It is a matter best left to the state and local governments, and in fact that is precisely where the Constitution as written leaves it. This does not change when fetuses are the targets of criminal violence. Some of the 68 "federal crimes" covered by this bill are legitimately that, but those that are state prerogatives should remain such.

Too many conservatives have given up on limiting government and instead prefer to try using the federal government for their purposes. Given the nature of heavily centralized government, the results are not likely to be good. Thomas Sowell has also noted that just because liberals have usurped power to impose bad national policies on social issues like abortion and school prayer does not mean that the appropriate conservative response is to usurp power to implement the opposite national policy.

To disregard constitutional government and the rule of law when intentions or results are good is to in effect disavow such concepts entirely. If the federal government can pick and choose what powers it has, this renders any limits on its power meaningless. Unborn children deserve legal protection from violent acts, but this does not justify violence against the Constitution. ESR

W. James Antle III is a senior writer for Enter Stage Right and can be reached at wjantle@enterstageright.com.

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