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So, when you envision a zygote, does Rep. Lindsey Graham come to mind? Before answering, consider the following. Graham, R-S.C., sponsored the Unborn Victims of Violence Act, which late last month cleared the House. As one of the bill’s co-sponsors stated during debate, it provides “that an individual who injures or kills an unborn child during the commission of certain predefined violent Federal crimes may be punished for a separate offense.” According to the bill’s text, “punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother.” The bill also contains a noteworthy definition: “[T]he term ‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens, at any state of development, who is carried in the womb.” This definition collapses distinctions in the development of life, so that a zygote is exactly the same as a fetus mere moments before birth. And taken all together, Graham’s bill — as one opponent summarized it — classifies “a fetus as a person, with rights separate and equal to that of a woman.” It treats a zygote as a blastosphere as a fetus as an infant as a child as a person. So, let’s run the tape in reverse. Under his own bill, Graham is just like a zygote. The problem is, my copy of Webster’s defines zygote as “a cell formed by the union of two gametes.” That is, the dictionary doesn’t have a picture of a person illustrating such a newly fertilized egg. There’s a very simple reason for this: As most people understand the English language, a person is one thing, and a zygote is another. So what’s going on here? Surprise, surprise — it’s all about abortion. Of course, the bill’s proponents deny that it has anything to do with a right to life, a right to choose, or Roe v. Wade. “[T]his is not an abortion bill. The act does not permit prosecution of any person for any medical treatment of the pregnant woman or her unborn child or the mother for any conduct with respect to her unborn child,” one supporter said during the debate. Please. Graham’s bill elevates the legal status of a fetus at any stage of development to that of a mature adult in certain circumstances. That proposition necessarily chips away at the idea that a woman has a constitutional right to abort her fetus. To be sure, we should punish people who engage in violent actions against pregnant women that cause prenatal injuries or terminate pregnancies. But we can do that without turning a fetus into a separate person or opening the door to further efforts to raise questions about abortion rights. Create a separate crime that does not blur the lines between stages of human development, similar to an unsuccessful amendment offered by Rep. Zoe Lofgren, D-Calif. Or demand stiffer sentencing for the assault against the woman, as sentencing expert Ronald Weich suggested in a written statement to Congress. BAD INTENT But because this debate is really about abortion, such reasonable alternatives won’t work. It’s all about extremes. And when it comes to extremes, Graham’s bill is a twofer. Not only does it treat a zygote as a person; it also distorts a prime tenet of criminal law — the idea of intent. “An offense under this section does not require proof,” according to the bill, that the accused “had knowledge or should have had knowledge that the victim of the underlying offense was pregnant” or “intended to cause the death of, or bodily injury to, the unborn child.” There’s a term for that — strict liability. Which is a term not usually associated with the sorts of violent crimes and stiff sentences at issue in Graham’s bill. Back to criminal law basics for a moment. Stripped to the essentials, committing a crime requires a person to do something bad, and to have something bad in mind while doing it. The element of intent provides the critical distinction between an accident and a crime — between hurting a pedestrian when you lose control of your car and deliberately running someone down. As the Supreme Court wrote in the seminal 1952 case Morissette v. United States, “Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.” Strict liability means there’s no intent needed — just an action. There are plenty of crimes punished on a strict liability basis. But they’re usually “public welfare offenses” established by governments to allow people to live together in a complicated, industrialized society. Like parking tickets. And they’re usually punished by fines or short prison sentences. In Graham’s bill, however, the harm committed is not a violation of a minor regulation; it’s the violation of a full-fledged criminal law. And the penalties are as serious as any that society doles out (except for the death penalty, which the bill prohibits from being used against an offender). Then how does Graham’s bill justify strict liability? Through an old standby of the common law, known as transferred intent. As one supporter explained during debate, “Relying upon the doctrine of transferred intent, H.R. 503 considers the criminal intent directed toward the pregnant woman to have also been directed toward the unborn child.” So where does that leave me, a supporter of a woman’s right to choose? To defend a position I believe in against distortions of language and law, now I have to take a decent legal doctrine out to the woodshed and rough it up. I have to point out that the doctrine of transferred intent, to quote one article, “has been labeled everything from an ‘arrant, barefaced fiction’ to ‘something of a freak.’ ” And that it glues the intent of an action that never took place onto an action that was committed with no intent. And that it violates everything that Americans believe about fairness, freedom, and limited government by holding a person guilty for an unintended action, a mere accident. Pass a law against it! Make it unconstitutional! Appeal to the Supreme Court! Unfortunately, I don’t really dislike the doctrine of transferred intent. Sure, it’s a legal fiction, but so are a lot of other legal doctrines. Yes, it awkwardly stitches together a bad act here and a bad intent there to make up a single crime. But it also manages to lock up the bad guys who shoot at one person, miss, and hit another person. (Indeed, it performs the admirable service of taking off the streets those criminals who, with their bad aim, might jeopardize everyone except their intended targets.) Transferred intent might not be a pretty doctrine, but it’s effective without being too offensive. Not a bad compromise, really. But now, thanks to Lindsey Graham, not only might Webster’s have to cross-reference its definitions of “zygote” and “person,” but Black’s Law Dictionary might have to modify its entry on transferred intent to read, “Awkward but respected doctrine of criminal law, at least until it got dragged into the abortion debate.” And it’s not just transferred intent that might suffer. First Amendment law, for instance, has already changed. Liberals used to like the idea of free speech. It let them protest American racial apartheid, organize for unions, and — if it suited their fancy — join the Communist Party. Then came Roe. And with it came pro-life zealots who blocked entrances to abortion clinics and who set up a Web site essentially encouraging each other to assassinate doctors who performed abortions. Abortion advocates responded in a seemingly reasonable fashion. They backed a bill — now law — prohibiting protests too close to clinics. And they sued — and won, at least at trial — a suit against the people who set up the Web site. As maybe they should have. Maybe the First Amendment does need to yield a bit to make room for another fundamental right. Maybe. Or maybe Rep. Graham isn’t like a zygote. And a zygote isn’t like a person. And we can accept a woman’s right to choose and move on without further wrecking the landscape. Maybe. But not as long as Graham’s bill is around. Evan P. Schultz is associate legal editor at Legal Times . His e-mail address is [email protected]

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