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The "Unborn Victims of Violence Act" is a sham, designed . . . to promote an agenda by which women will in fact lose control of their bodies to the state.1
I. Introduction
On 1 April 2004, President George W. Bush signed into law the Unborn Victims of Violence Act of 2004 (UVVA).2 The UVVA amended the Uniform Code of Military Justice (UCMJ) by adding Article 119a, the offense of death or injury of an unborn child.3 Under this article, any person who, while engaging in certain predicate illegal behavior,4 either intentionally or unintentionally harms or kills an unborn child is criminally responsible for the unborn child's death.5 Article 119a exempts three specific types of people from prosecution: anyone involved in a consensual abortion, anyone involved in medical treatment of the pregnant woman or unborn child, and the mother of the unborn child.6 The pronounced legislative intent behind this amendment is to protect pregnant women and their unborn children equally.7
However, opponents of the UVVA believe that its hidden agenda is to expand fetal rights so drastically that they begin to override the rights of a pregnant woman8 recognized by the U.S. Supreme Court in Roe v. Wade.9 In military criminal law, this amendment will cause the exact dramatic expansion of fetal rights feared by the UVVA's opponents. In fact, Article 119a will eventually compel commanders to criminally charge pregnant Soldiers for legal prenatal conduct, will inappropriately propel the military into the nation's abortion debate, and may inadvertently lead to increased harm and death of unborn children.
This article will begin by describing the evolution of fetal rights in military criminal law before the addition of Article 119a. Next, this article will detail the legislative history and intent behind the UVVA and its amendment to the UCMJ. This article will then demonstrate how the state of South Carolina, in order to be equitable and consistent, has used its feticide law10 to expand fetal rights and allow for the prosecution of pregnant women for their prenatal conduct. This article will then layout the dilemma military commanders will face when attempting to charge their servicemembers equitably and consistently under Article 119a. Next, it will argue that this dilemma will compel commanders to follow South Carolina's lead...