Bench Memos

Pregnant Women’s Rights Must Be Fully Protected by the Criminal Law

Recent media misinformation, perhaps deliberate on the part of left-leaning commentators, currently casts a cloud over efforts to give women more protection when they are forced to defend themselves and their unborn children.

Imagine being pregnant with quadruplets and having your babies’ father viciously punch you in the stomach during an argument. You remind him that you are carrying his children and warn him not to punch you in the stomach again. Tragically, he doesn’t heed your warning and instead comes at you. Fearing for your children, you grab a knife and stab him. He later dies, and you are charged with homicide.

At your criminal trial, you want to argue to the jury that your actions were legally justified because you were acting in defense of your unborn children. However, the judge determines that state law does not permit you to make that argument, and you are ultimately convicted and sentenced to prison.

This is not just a hypothetical. It actually happened to a Michigan woman in 1999. Her conviction was later reversed when an appellate court determined that Michigan law did, in fact, permit a woman to use force in defense of her unborn child.

Notably, this was the first time a court had extended the “defense of others” theory to the defense of an unborn child. Courts in Texas and Illinois had previously refused to do so, despite the significant and ongoing problem of pregnancy-related violence including violence specifically directed toward unborn children.

Each year, thousands of cases of unlawful violence against pregnant women and their unborn children are reported. These incidents continue to underscore the urgent need to ensure that our criminal laws protect both the woman and her unborn child, and that they also affirmatively provide legal protection to a woman who must resort to force in defense of her unborn child.

The Pregnant Woman’s Protection Act, model legislation developed in 2008 by Americans United for Life, is designed to amend a state’s existing criminal code and provides that a woman may use force — even deadly force — to defend her unborn child from unlawful violence or a criminal attack.

Attempts by some in the media to distort the intent and impact of the Pregnant Woman’s Protection Act and to smear Americans United for Life as encouraging violence against abortion providers represent thinly veiled, politically motivated attacks that blatantly ignore the stated intent of the model legislation. The legislation is intended simply to ensure that a pregnant woman and her unborn child are protected from unlawful criminal violence and that a woman’s decision to carry her child to term is respected. They also reveal a fundamental — and perhaps willful — misunderstanding of the express terms of the Pregnant Woman’s Protection Act, the scope and application of criminal law, and the purposes and intent behind this model language.


MYTH: The Pregnant Woman’s Protection Act will “legalize” or “incite” violence against abortion providers.

TRUTH: The Pregnant Woman’s Protection Act applies only to situations in which unlawful force is being applied or imminently threatened against an unborn child. Moreover, under the narrow tailoring of the Pregnant Woman’s Protection Act, only the child’s mother — and not a third-party — may be justified in using force to defend the unborn child.

Under well-established criminal jurisprudence, a person is justified in using force in the “defense of another” when unlawful force is being applied or threatened against that other person. Arguably, a “person” includes an unborn child under federal criminal law and the laws of 38 states that recognize an unborn child as a potential victim of violence.

In this instance, examples of the use of unlawful force would include punching or beating a pregnant woman with the intent of causing a miscarriage or damage to the pregnancy or threatening the use of a knife or other weapon against the unborn child. Notably, the force applied in response to the threat must be “reasonable” or comparable to the threat. Thus, deadly force can be used, although only in cases of extreme peril.

The provisions of the Pregnant Woman’s Protection Act come into play only when unlawful force is being applied or threatened. It does not apply to lawful activity.

Abortion is legal in the United States and a woman must consent to an abortion before it is performed. Thus, under no reasonable reading of the Pregnant Woman’s Protection Act can it be construed as applying to the provision of abortion (which is a legal act and not unlawful force) or as justifying or excusing criminal violence against those who perform legal abortions.

This narrow application of the Pregnant Woman’s Protection Act is confirmed by the Michigan appellate decision noted earlier where the justices specifically said:[BLOCK]The distinction between the abortion cases and the instant case is straightforward. The United States Supreme Court has held that the Fourteenth Amendment of the United States Constitution guarantees the right to personal privacy and that this right encompasses a woman’s decision whether to terminate her pregnancy. The “defense of others” theory is available only if a person acts to prevent unlawful bodily harm against another. Because clinics that perform abortions are engaging in lawful activity, the “defense of others” theory does not apply. . . . Our holding  . . . does not apply to what the United States Supreme Court has held to constitute lawful abortions.[BLOCK]


MYTH: The Pregnant Woman’s Protection Act is part of a “campaign” to target abortion providers.

TRUTH: AUL drafted the Pregnant Woman’s Protection Act in 2008 in direct response to the well-documented threats of violence faced by pregnant women and their children. Moreover, in keeping with its pro-life convictions, AUL has always denounced violence against abortion providers and would never promulgate model legislation that could reasonably be construed as calling for or excusing such violence.

As detailed in the legislative findings section of the Pregnant Woman’s Protection Act, evidence has shown that violence and abuse are often higher during pregnancy than during any other period in a woman’s lifetime. Based on studies conducted between 1995 and 1999, the Centers for Disease Control (CDC) estimated that at least 300,000 pregnant women are abused each year. Moreover, according to the March of Dimes, one in six pregnant women has been abused by a partner. Similarly, a 1998 household survey determined that pregnant women are 60.6 percent more likely to be beaten than women who are not pregnant.

In fact, a pregnant woman is more likely to be a victim of homicide than to die of any other cause. And case after case has demonstrated that husbands or boyfriends are often the perpetrators of pregnancy-related violence, and this violence is often directed at the unborn child or intended to end or jeopardize the pregnancy.

It is precisely these threats that AUL seeks to address with the Pregnant Woman’s Protection Act.


MYTH: The protections provided by the Pregnant Woman’s Protection Act are unnecessary and are not supported by existing law.

TRUTH: The Pregnant Woman’s Protection Act is a logical extension of existing federal and state criminal laws that provide for the right to use force in the “defense of others” and other criminal law provisions that recognize and protect unborn children.

All 50 states permit the use of force in specified circumstances: for self defense, in the defense of others, and when a person reasonably believes that unlawful force is being used or will imminently be used against him/her or a third person. “Self-defense” and the “defense of others” are affirmative defenses raised by a criminal defendant that, if proven true, can provide a complete defense to criminal liability.

With that in mind, it is easy to see that the application of the affirmative defense of “defense of others” to cases where a mother uses force to protect the life of her unborn child is a natural extension of accepted criminal jurisprudence including existing unborn victims of violence protections (i.e., fetal homicide laws and fetal assault laws) that recognize the unborn as potential victims of criminal violence.

The federal Unborn Victims of Violence Act (more commonly known as “Laci and Conner’s Law,” after Laci and Conner Peterson), as well as the laws of 38 states, recognizes an unborn child as a separate victim of criminal violence and treats the killing of an unborn child as a form of homicide. In addition, 22 states define non-fatal assaults on unborn children as criminal offenses.

Thus, it is clear that recognizing the unborn as “others” for purposes of the “defense of others” theory in no way diverges from current federal and state criminal law. If under a state’s criminal code an unborn child is recognized as a potential victim of homicide or assault, then that unborn child can be protected through the use of force when warranted.

Recognizing this, Oklahoma, in 2009, became the first state to enact AUL’s Pregnant Woman’s Protection Act, explicitly expanding the affirmative defense of “defense of others” to include instances where a pregnant woman uses force to protect her unborn child. Arkansas and Missouri have also enacted this protective legislation.


MYTH: The Pregnant Woman’s Protection Act is simply another tool in the “abortion wars.”

TRUTH: The “Pregnant Woman’s Protection Act” is not an abortion bill and attempts by some in the media to subsume the Pregnant Woman’s Protection Act into the debate over abortion do a grave disservice to abused women and vulnerable unborn children who are often the targets of criminal violence.

The Pregnant Woman’s Protection Act does not contain the word “abortion” anywhere in the text of the model legislation. (In fact, the word “abortion” is used only twice in the policy guide accompanying the model legislation, where it is used as an adjective in the term “abortion provider.” Notably, in this context, “abortion provider” is used when noting that the Pregnant Woman’s Protection Act cannot legitimately or honestly be argued to condone, promote, or incite violence against abortion providers.)

Finally, there is a good reason for the absence of the term “abortion” in the AUL model language: The bill is not about abortion. As detailed above, the bill is intended to ensure that a pregnant woman is able to protect her unborn child from criminal violence. In doing so, it also protects her individual decision to carry her child to term — her choice for life.

— Denise M. Burke is Americans United for Life’s vice president of legal affairs. 


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