Drawing new lines over rights of unborn

While the big guns in Congress are still firing on issues like tax cuts and education reform, a more subtle legislative battle is shaping up that could reopen the most volatile issue in American politics - abortion and the rights of the unborn.

The key battle is likely to come when President Bush has an opportunity to fill a vacancy on the US Supreme Court. A new justice could well tip the balance on a new challenge to the historic Roe v. Wade decision that legalized abortion.

But a series of controversial bills making their way onto the floor of Congress are chipping away at assumptions of that 1973 decision.

Last week the House passed and the Senate is poised to take up a landmark bill protecting unborn victims of violence. Other bills in the wings include:

* Restrictions on access to mifepristone (RU-486), the abortion pill, a drug that replaces surgical abortion.

* A ban on so-called partial-birth abortions.

* Limits on access to abortion for minors.

Sponsors of the Unborn Victims of Violence Act framed their bill as a crime-fighting measure. They say it fills a gap in federal law that fails to recognize that violence against a pregnant woman affects both the woman and her unborn child - and the assaulter needs to answer for crimes against both. Some 24 states have enacted similar laws in the past decade.

Ulterior motive?

Opponents say it's a thinly veiled assault on the basic principles of reproductive rights for women. A law that creates a separate category of crime for a "child" in utero is supporting the concept of "fetal rights" - a major legislative goal of the anti-abortion movement. It is also setting up a battle for the future between the rights of women and the rights of the unborn in abortion cases, they say.

"We are in the midst of the greatest threat to Roe v. Wade since 1973," says Gloria Feldt, president of Planned Parenthood. "I could be part of a generation that both won and lost the right to choose."

Anti-abortion groups were big players behind the scenes in the House debate on the bill concerning unborn victims of violence. The cases they cited focused on assaults on women who were close to the end of their pregnancies. The National Right to Life Committee circulated a photo of a Wisconsin woman holding her son, Zachariah, at his funeral. The assault occurred four days before the child was to have been born, and the group added its own caption: "Can anybody honestly tell me there is only one victim in that picture?"

But the House bill has a wider reach, covering all stages of a pregnancy. It also imposes higher penalties - as much as life imprisonment - even if assailants don't know a victim is pregnant.

"The statute is quite noncommittal and unspecific as to when does pregnancy commence," says abortion law expert David Garrow, a historian at Emory University in Atlanta. "It could cover someone who is assaulted soon after she has had sexual intercourse."

"In all of abortion law, the fundamental constitutional line is distinguishing viable fetuses from non- or pre-viable fetuses," he adds. "For Congress to try to erase viability as an extremely important point of demarcation in pregnancy is quite counter to Supreme Court precedent."

The House bill that passed 252 to 172 last week makes it a federal crime to harm a fetus while committing any of 68 federal offenses, as well as crimes under military law involving violent acts against women.

In fact, relatively few violent crimes are prosecuted in federal courts. Most cases of violence against women, including those cited in the debate on the floor of the House, would be litigated in state courts. (Had such a law been in effect at the time of the Oklahoma City bombing - a crime on federal property - the victim count would have been 171, not 168, because three of the women were pregnant.)

In the Clinton years, women's rights groups could count on a veto threat to derail such legislation early in the process. A similar House bill that passed in the last Congress never made it onto the floor of the Senate.

Bush may make the difference

But the political dynamic shifted when the White House changed hands. Last week, Mr. Bush said he would sign such a bill, and Senate sponsors are preparing for a floor fight.

"It is time to close the loophole in federal violent-crime statutes that fail to criminalize the killing of unborn victims and allow people to literally get away with murder," says Sen. Mike DeWine (R) of Ohio, a bill sponsor.

While both the House and Senate bills explicitly exclude pregnant women seeking abortions and doctors who perform them, the language on both sides lifts all the big themes of a full-blown debate over abortion.

"By denying a legal identity to unborn victims, we create a society that is coarser, less feeling, and less than it would otherwise be," said House majority whip Tom DeLay (R) of Texas after the vote. "Every young life must be acknowledged. Every young life must be protected from predatory criminals."

Women's groups are concerned that argument may soon extend to mothers themselves. "Because the Democrats no longer have the White House, Congress is now the front line in protecting rights for women," says Rep. Diana DeGette (D) of Colorado, co-chair of the newly formed House Pro-Choice Caucus. "I'm telling colleagues, 'You're going to have to take some hard votes because we no longer have Bill Clinton.' "

(c) Copyright 2001. The Christian Science Monitor