A Primer on the “Pregnant Woman’s Protection Act”
By Legal Staff
Wednesday, March 2nd, 2011

There have been a number of recent news stories and blog posts discussing AUL’s “Pregnant Woman’s Protection Act,” model legislation that ensures 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.    Unfortunately, many of these stories reveal fundamental misunderstandings 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 legislation.

MYTH: The “Pregnant Woman’s Protection Act” will “protect vigilantes” and be used to excuse or justify their crimes.

TRUTH: The “Pregnant Woman’s Protection Act” explicitly expands existing state laws regarding the use of force in the “defense of others” to include situations where a pregnant woman uses force – including deadly force in limited and appropriate circumstances – to protect her unborn child.

The model language expressly provides that a pregnant woman may use force (including deadly force) to protect her unborn child when she reasonably believes that unlawful force is threatening her unborn child and that her intervention and use of force are immediately necessary to protect her unborn child.

The model language expressly limits the use of force to a pregnant woman and does not expand it to third parties (including so-called “vigilantes”).

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 a pregnant woman and/or her 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 person.  A “person” includes an unborn child under federal criminal law and the laws of 36 states (see discussion below).

In this instance, examples of the use of unlawful force would include punching or beating a pregnant woman or threatening her with a knife or other weapon.  Moreover, 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.

Clearly, the provisions of the “Pregnant Woman’s Protection Act” come into play only when unlawful force is being applied or threatened.

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.

MYTH: The “Pregnant Woman’s Protection Act” is an aberration and not supported by existing law.

FACT: 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 simultaneously recognize and protect an unborn child.

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”) as well as the laws of 36 states recognize an unborn child as a separate victim of criminal violence and treat the killing of an unborn child as a form of homicide.  In addition, twenty-two 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.  Simply, 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 was 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.  In 2010, Missouri also enacted this protective law.

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

TRUTH: AUL drafted the “Pregnant Woman’s Protection Act” in 2008 in direct response to the well-documented and growing threats of violence faced by pregnant women.  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 have 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-associated violence and that this violence is often directed at the unborn child or intended to end or jeopardize the pregnancy.

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

MYTH: The “Pregnant Woman’s Protection Act” is the latest salvo in the “abortion wars.”


TRUTH:
The “Pregnant Woman’s Protection Act” is not an abortion bill and attempts by some abortion proponents to subsume the “Pregnant Woman’s Protection Act” into the “abortion debate” does a grave disservice to battered women.

The “Pregnant Woman’s Protect Act” does not contain the word “abortion” anywhere in the text of the model legislation.  There is a good reason for this:  the bill is not about abortion.  As detailed above, the bill is intended to ensure that a pregnant woman is able to protect herself and her unborn child from criminal violence.  In doing so, it protects her individual decision to carry her child to term – her choice for life.

LINKS:
AUL Notes Mother Jones & Huffington Post Wrong on Life: Model Legislation Protects Women & Children from Abuse

Media coverage of how Mother Jones & Huffington Post Got it Wrong on AUL’s Model Legislation

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