As part of our efforts to educate people about the Reproductive Health Act, we have been pointing out that the bill would remove any criminal penalties for a violent attack on an unborn child.  The bill’s supporters have been countering by saying that there would still be sufficient criminal sanctions available, if RHA is passed.

Here’s why they’re reading the law wrong.

Current New York law criminalizes a direct attack on an unborn child outside of the context of a doctor performing an abortion with the mother’s consent.  If the unborn child is over 24 weeks of gestation, this crime would be a felony punishable by up to seven years in prison; before that, it’s a felony punishable by up to four years in jail.

Without these criminal abortion laws, there is no way to bring a prosecution for a direct attack on an unborn child.  The reason is that New York has a “born alive” rule, under which you can only be a victim of a crime — a “person” under the law — if you are born alive.  Before that, you aren’t a “person”.  Yes, it seems absurd, but that’s been the law for many years.

If you want a more detailed legal explanation for how this plays out, here it is — if you don’t, you can skip the next paragraph.

The basic problem stems from the nature of the assault and homicide statutes, and the required intent elements that must be proved, when taken together with the “born alive” rule.  The assault and homicide laws are “specific intent” laws — the prosecution must prove that the assailant had “intent to cause serious physical injury to another person”.  Since an unborn child is not a “person” within the meaning of the law, no assault that is intended to harm that child can be the basis of a prosecution.  Nor can the doctrine of “transferred intent” lead to a prosecution.  That principle holds that if a person intends to assault one victim, but harms another, they are liable for injuries to the second victim.  But the assault and homicide statutes specify that the injury must be caused to the intended victim “or to a third person”. Again, since an unborn child is not a “person”, the injury to the child cannot be the basis of a criminal charge under the theory of transferred intent.  Of course, there is always the possibility of bringing charges for any injuries caused to the mother — but those are separate and distinct from the offenses directed against the unborn child, which can only be brought under the criminal abortion statutes.

The criminal abortion statutes are reasonable and necessary, and have a long history in our law.  By having this provision, New York law shows that it has a legitimate interest in protecting unborn life, which it will defend in criminal court.  This interest has been repeatedly recognized and upheld by the Supreme Court — even in the original Roe v. Wade case that legalized abortion.

These laws are especially important because deliberate attacks on an unborn child are frequently part of a domestic violence incident.  And, not every attack on the unborn child causes some kind of physical harm to the mother.  For example, an involuntary dose of RU-486 or emergency contraception might only cause harm to the unborn child, not to the mother, and thus could not be prosecuted at all if RHA is enacted.  Think of it — a man could slip a woman a dose of EC with the intent to kill their unborn child, yet he could completely escape prosecution.

The result of all of this is clear — without the criminal abortion statutes (which would be repealed by RHA), an assault on an unborn child cannot be the basis of a criminal charge unless there is an independent injury to the mother.  And even then, the only victim whose rights would be defended would be the mother — the child would be merely a piece of evidence at trial, not a human being who had been victimized.

The proper way to address this flaw in the current law is not to remove the abortion provisions from the Penal Law, as RHA would.  Instead, the Legislature should enact an Unborn Victims of Violence Act, which would provide criminal penalties for assaults upon unborn children, regardless of the impact on the mother.  Thirty-six states and the federal government have these laws, and they have been upheld in the courts. The RHA may well prevent that law from ever being passed in New York State.

The broader issue at stake here is the legal theory embodied in RHA — it treats the life and well-being of the unborn child as irrelevant, and asserts that the state is only concerned with maternal health.  This would completely abdicate the state’s legitimate interest in protecting unborn life — which has even been recognized by the Supreme Court.

The RHA is focused solely on the mother and on ensuring her unlimited access to abortion.  The unborn child would have no legal rights, and no defense from assault, under RHA.