In an important case of first impression, a Superior Court judge entered a protective order against domestic violence by the defendant, further "expressly providing that plaintiff’s unborn child shall, upon birth, be automatically deemed an additional protected person." B.C. v. T.G., No. FV-15-1033-13 (Chancery Division, Ocean County, Jan. 31, 2013) [emphasis added].

Judge Lawrence Jones found the 18-year-old defendant had organized a group of people to beat up his 17-year-old girlfriend after she told him she was pregnant. She sustained significant injuries and at the time of the hearing on the restraining order, it was unclear whether the fetus had been injured. Jones found that there was a substantial continuing risk of violence to the plaintiff, as well as to her unborn child and, interpreting the Prevention of Domestic Violence Act liberally, decided he had the authority to include the plaintiff’s unborn child within the restraining order, to be automatically added as a "protected person" upon the child’s birth.

It is not likely that the drafters of the PDVA contemplated this situation, although in retrospect it appears to be a circumstance that needs to be covered. Jones listed the reasons why it would be unfair and unnecessary for the mother of a newborn to return immediately to court to seek the expanded protection. This common-sense interpretation strikes us as reasonable and within the letter and spirit of the Legislature’s concerns leading to the enactment and amendment of the act, which included its statement of intent that it was meant to assure victims "the maximum protection from abuse the law can provide" (2C:25-18.2). Further, the PDVA authorizes "any relief necessary to prevent further abuse …" (2C:25-29(b)) and authorizes a restraining order to cover the "plaintiff or others" (2C:25-29(b)(7)).

Concerns have been expressed in some quarters, however, about the potential impact of this kind of decision on the abortion debate. Press accounts have included expressions of concern that this ruling might be interpreted as "providing rights for the fetus," in such a way that opponents of abortion could take advantage of it. Jones was careful to state clearly in his opinion that "under New Jersey law, a fetus is not considered a person." Further, he noted that the advance protection clause "does not equate a fetus with a person until after live birth."

We believe Jones was correct in his analysis and that his ruling is reasonable with respect to state domestic violence law and does not in any way affect the abortion debate. If any serious doubt about these matters develops, we call on the Legislature to amend the PDVA specifically to authorize this kind of "advance protection." Legislative action, however, is not necessary because Jones’ decision is completely reasonable under the circumstances.