Earlier today, the U.S. Army preferred 13 charges and specifications of premeditated murder against Major Nidal Hasan.  This preliminary step does not and should not preclude the preferral of additional charges including a charge and specification for the killing of the unborn child of one of the victims of the Fort Hood massacre,  Private Francheska Velez of Chicago, Illinois.

As a former military judge advocate (for 14 years) who specialized in military justice, I understand the confusion that the announcement of these charges and specifications has engendered.  However, it is important to understand that the military justice system is different than the civilian system that most are more familiar with.

The investigation into Hasan’s conduct will continue and, under the Uniform Code of Military Justice (UCMJ) and the Rules for Courts-Martial, his commanders are free to prefer additional charges if warranted.   Moreover, under the UCMJ, Hasan is entitled to an Article 32 hearing — a pretrial hearing in which a military officer, likely a military judge in this case, will review the evidence and charges against Hasan for factual and legal sufficiency, and that hearing officer may also recommend that additional charges and specifications be preferred if the evidence supports them.  In fact, the preferral of additional charges and specifications in a case of this magnitude is common.

Importantly, Army officials have already acknowledged that additional charges are under consideration.  Specifically, the Associated Press is reporting that a decision has not yet been made as to whether Hassan will face a charge and specification under the changes made to the UCMJ in 2004 when President George W. Bush signed the federal Unborn Victims of Violence Act (UVVA).  The UVVA criminalizes assaults on the unborn — including those that result in the death of the child — that occur during the commission of another federal crime or on federal property such as military installations like Fort Hood.  The UVVA specifically modified the UCMJ to allow the prosecution of military personnel (stationed anywhere in the world) who kill or injure an unborn child. 

Notably, if an additional charge for the killing of Private Velez’s unborn child is preferred and referred for court-martial, this will not be the first time that a member of the U.S. military has faced charges under the federal Unborn Victims of Violence Act.  The Air Force has already prosecuted and secured a conviction in one such case.

FOR IMMEDIATE RELEASE
December 11, 2008

Americans United for Life Releases Eight New Model Legislation & Policy Guides: Twenty-Three Model Legislation & Policy Guides Now Available

Chicago, Illinois — Americans United for Life (AUL) today released its 2009 Model Legislation & Policy Guides. With the addition of eight new guides this year, AUL now offers 23 pieces of model legislation on key issues related to abortion, protection of unborn victims of violence, bioethics, healthcare rights of conscience, and the end-of-life.

Dr. Charmaine Yoest, AUL President & CEO said, “AUL is the leading developer of cutting-edge pro-life legislation that saves lives today and lays the groundwork for a nation in which everyone is welcomed in life and protected in law.”

New additions to AUL’s library of model legislation include a state legislative resolution opposing the federal Freedom of Choice Act (FOCA), a prohibition on coerced abortions, and The Child Protection Act—comprehensive legislation to ensure abortion providers report child sexual abuse and prevent the transportation of children across state lines for clandestine abortions.

Denise Burke, AUL Vice President of Legal Affairs added, “Each year, AUL legal and policy experts provide extensive consulting and support to legislators across the nation, helping to enact protective laws that advance a culture of life. We look forward to partnering with legislators and pro-life allies in 2009 to build on our past successes.”

All of AUL’s Model Legislation & Policy Guides are available at http://www.aul.org/Legislative_Guides

As medical technology advances and the body of medical knowledge increases, the amount of medical information on the ability of a fetus to experience pain continues to grow as well. These scientific advancements have prompted medical, legal, and ethical dialogue on the following questions: At what stage in fetal development can a fetus experience pain, and what impact would this information have on women and abortion law in the United States?

That a fetus can feel pain is an accepted medical fact. However, the question of when a fetus can experience pain has been the subject of some debate over the last two decades.¹ The accepted medical consensus is that the sensory connections for feeling pain are present at 20 weeks gestation.² In fact, there is a steadily increasing body of medical evidence and literature supporting the conclusion that a fetus may feel pain from around 11 to 13 weeks, or even as early as 5.5 weeks.³ Indeed, there is some evidence that fetal suffering may actually be more intense due to the uneven maturation of fetal neurophysiology.⁴ A British survey of neuroscientists showed that 80% of the neuroscientists participating in the survey felt that pain relief should be given to a fetus for abortions after 11 weeks gestation.⁵

In light of such medical evidence on the ability of a fetus to experience pain, it is disturbing that only five states have laws requiring abortion providers to give women information on fetal pain. Arkansas, Oklahoma, Minnesota, and Louisiana require physicians to inform women of the possibility of fetal pain at 20 weeks’ gestation.
Georgia requires abortion providers to inform women orally prior to an abortion that fetal pain information is available on a state-sponsored website.⁶

A woman seeking an abortion has a right to know about the medical fact that a fetus can feel pain at 20 weeks gestation, and possibly even at 11-13 weeks gestation. In order to facilitate truly informed consent for abortions, abortion providers and the state have a responsibility to ensure that women receive information on fetal neurological development and its ability to feel pain.⁷

States that have not adopted fetal pain legislation should consider doing so. Such legislation should include two basic requirements: (1) that the abortion provider give the pregnancy woman information that unborn children at 20 weeks’ gestation and beyond are fully capable of feeling pain; and (2) that the abortion provider give the pregnant woman the option to administer anesthesia to alleviate or eliminate pain to the fetus. Exceptions to these requirements shall be limited to medical emergencies, a risk to the life or substantial bodily harm to the woman, and if administration of pain relief to the fetus would significantly decrease the possibility of sustained survival of the fetus independent of the mother, with or without artificial support. An ideal fetal pain awareness and prevention law should also contain a requirement that the abortion provider obtain a written certification, signed by the woman, that (1) information on fetal development and fetal pain have been provided to the woman; (2) the woman has been given the choice to have an anesthesia or analgesic administered to the fetus; and (3) the woman has either requested administration of pain-relieving medication, or has opted not to receive administration of pain-relieving medication for the fetus.⁸

Currently, only two states (Virginia and California) are considering fetal pain bills.⁹ In 2007, at least 9 states considered legislation requiring abortionists to provide women with information on fetal pain.¹⁰

Laws informing women regarding fetal pain and fetal development are constitutional under the standards set forth by the United States Supreme Court in Planned Parenthood v. Casey¹¹ and Gonzales v. Carhart.¹² In Casey, the USSC upheld a Pennsylvania statute requiring an abortion provider to inform the woman seeking an abortion on the availability of state-prepared materials on fetal development and abortion alternatives. The Court held that it is constitutional for a state to require that abortion providers offer prepared materials on fetal development, in furtherance of the state’s legitimate interests in protecting developing fetal life and the well-being of the woman.¹³

The USSC reaffirmed this conclusion when it restored Casey’s “undue burden” or “substantial obstacle” standard in Gonzales. The Court’s application of the Casey standard in Gonzales “suggests that broader regulations of abortion that make medical sense will be upheld, especially if they are designed to provide women with more information about the nature, risks, and alternatives to abortion.”¹⁴ Fetal pain laws clearly fall within the category of abortion regulations on fetal development allowed under Casey and Gonzales.

The best way for states to pass laws on fetal pain awareness and prevention is by amending their existing informed consent statutes for abortion to require abortion providers to give women information on fetal pain, along with the option to request pain relief for the fetus during the abortion procedure. Arkansas and Oklahoma took this approach in their adoptions of fetal pain legislation.

Medical information on the fetal neurological development and a fetus’ consequent ability to feel pain is a concern of women considering abortion, ¹⁵ and providing this information is necessary for a woman to make a fully-informed choice on whether or not to obtain an abortion. Women have the right to all available medical information regarding fetal development, and a right to know the consequences of their abortion decision — specifically, that abortion may cause fetal pain.¹⁶
In conclusion, to protect women’s rights, facilitate informed consent, and to further state interests in the well-being of women and developing human life, legislators should work to introduce and enact legislation on fetal pain awareness and prevention.

2. Report of the Medical Research Council Group on Fetal Pain, at 3.3. Available at (http://www.mrc.ac.uk/Utilities/Documentrecord/index.htm?d=MRC002413) (last accessed March 20, 2008).

3. Commission of Inquiry into Fetal Sentience. Human sentience before birth. Rawlinson report. London: HMSO, 1996. See also T.S. Collett, Fetal Pain Legislation: Is It Viable? 30 Pepp. L. Rev. 161 (2003), at 169.

4. Frank White, M.D. Are We Overlooking Fetal Pain and Suffering in Abortion? American Society of Anesthesiologists Newsletter, Volume 65, October 2001. Available at http://www.asahq.org/Newsletters/2001/10_01/white.htm (last accessed March 20, 2008).

5. Id.

6. Denise M. Burke, Fetal Pain Awareness and Prevention, Model Legislation & Policy Guide for the 2008 Legislative Year, in Defending Life 2008: Proven Strategies for a Pro-Life America, available at http://aul.org/?p=Defending_Life#Abortion (last accessed March 20, 2008).

7. Id. See also, Frank White, supra at note 4 (”We have a responsibility to give proper informed consent on these issues.”).

8. Id.

9. VA H.B. 1556; CA A.B. 1009.

10. Supra at note 6. (In 2007, California, Kentucky, Louisiana, Missouri, New York, Oklahoma, Oregon, South Carolina, and Virginia considered legislation requiring abortionists to provide women with information on fetal pain.)

11. 505 U.S. 833 (1992).

12. 127 S.Ct. 1610 (2007).

13. Casey at 880, 882-883.

14. Clarke D. Forsythe, Gonzales v. Carhart: The potential impact of the United States Supreme Court’s 2007 decision. Available at http://aul.org/Gonzales_v_Carhart (last accessed March 20, 2008).

15. T.S. Collett, Fetal Pain Legislation: Is It Viable? 30 Pepp. L. Rev. 161 (2003), at 102.

16. Id. at 184.