Defense of Others and Defenseless "Others (original) (raw)

When the Unborn Victims of Violence Act (UVVA) was signed into law on April 1, 2004, [FN1][FN1] the federal government dishonored nothing less pedigreed than its founding philosophy. The UVVA criminalizes harm to the fetus and sanctions such harm with the punishment that would have befallen the accused had the woman carrying the fetus been the one to sustain the injuries instead. [FN2][FN2] This Article argues that recent efforts at fetal protection, like the UVVA, defy liberalism, the political theory underpinning this nation's constitution, [FN3][FN3] and conduce to the subordination of women. [FN4][FN4] *329 Liberalism makes central commitments to neutrality and equality, [FN5][FN5] both of which serve liberalism's most fundamental liberty-the liberty of citizens to pursue their life plans and construct their value systems. [FN6][FN6] To secure this liberty, neutrality mandates a government that forebears from favoring some life plans over others, or from adopting or acting upon values not shared by all. [FN7][FN7] This commitment to governmental restraint finds support in the Constitution, for example, in the First Amendment's Establishment Clause. [FN8][FN8] Equality requires that all citizens receive equal treatment before the law. This principle is embodied most transparently in the Privileges and Immunities Clause, [FN9][FN9] and the Equal Protection Clause. [FN10][FN10] A statutory regime protecting fetuses from harm would seem straightforwardly to violate liberalism's twin commitments to neutrality and *330 equality. Laws criminalizing harm to the fetus tend to presuppose its personhood and, when they do, contravene neutrality's requirement that liberal governments abstain from staking controversial moral or metaphysical positions. [FN11][FN11] And, since protection of fetuses is often wrought at the expense of the women who carry them, fetal protection laws (at least as they have recently been promulgated) [FN12][FN12] threaten to introduce inequality between mothers and their unborn children. Yet criminal punishment for harm to the unborn is not the only kind of fetal protection currently threatening liberalism's fundamental commitments. The logical extension of fetal protection statutes was drawn out in People v. Kurr, [FN13][FN13] a 2002 Michigan case that held, for the first time at the state or federal level, that these statutes justified a woman's use of deadly force against an attacker who threatened the life of her fetus. This novel interpretation of the doctrine of defense of others violates commitments to neutrality and equality insofar as it, like the fetal protection statute grounding it, [FN14][FN14] presupposes the personhood of the fetus and confers more protection on fetuses than on the women who carry them. This Article advances a liberal critique of existing attempts at fetal protection. The Article also argues, however, that a regime that ignored harm to fetuses would no better serve liberalism's commitments to neutrality and equality.