79 Temp. L. Rev. 279 (2006)
The Unborn Child, a Forgotten Interest: Reexamining Roe in Light of Increased Recognition of Fetal Rights

handle is hein.journals/temple79 and id is 287 raw text is: THE UNBORN CHILD, A FORGOTTEN INTEREST:
The care of human life and happiness, and not their destruction, is the
first and only legitimate object of good government. I
- Thomas Jefferson
Since the Supreme Court announced the right to abortion in Roe v. Wade,2 there
has been an increasing recognition and expansion of the rights of unborn children in
various areas of the law, both related and unrelated to abortion.3 Most notable are the
Unborn Victims of Violence Act of 20044 and the Partial-Birth Abortion Ban Act of
2003.5 By passing these Federal Acts, Congress has acknowledged the need to protect
a group of individuals who are wholly overlooked in abortion rights jurisprudence-the
By its very name, the Unborn Victims of Violence Act of 2004 recognizes that a
criminal offense committed against a pregnant woman has two victims, not one.7 The
Act confers on unborn children, from the point of conception to the child's birth, the
right to be free from injury or death inflicted by criminal offenders, and it punishes
offenders for infringing on that right.8
The Partial-Birth Abortion Ban Act of 2003 makes it a crime for any physician to
perform what is commonly referred to as a partial-birth abortion, a procedure in which
the physician deliberately and intentionally vaginally delivers a living fetus, until
either the head or any part of the fetal trunk past the navel is outside the mother's body,
for the purpose of performing an overt act that the [physician] knows will kill the
partially delivered living fetus.9 The Act makes this procedure unlawful unless it is
medically necessary to save the life of the mother.'0 In banning partial-birth abortions,
Congress sought to protect unborn children from this gruesome and inhumane
1. Thomas Jefferson, Letter to the Republican Citizens of Washington County, Maryland (March 31,
1809), in 8 THE WRITINGS OF THOMAS JEFFERSON 165 (H. A. Washington ed., 1854).
2. 410 U.S. 113, 154 (1973).
3. For an overview of areas in which the law has conferred rights on unborn children, see infra Part II.A.
4. 18 U.S.C.A. § 1841 (West Supp. 2005).
5. 18 U.S.C.A. § 1531 (West Supp. 2005).
6. 18 U.S.C.A. § 1841 (stating that section 1841 is titled [p]rotection of unborn children); Partial-Birth
Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2(14) (L)-(N), 117 Stat. 1201, 1206 (finding that Congress
has a compelling interest to protect unborn children from partial-birth abortion, which it has termed an
inhumane procedure).
7. 18 U.S.C.A. § 1841.
8. Id.
9. 18 U.S.C. § 1531(a)-(b)(l).
10. Id. § 1531(a).

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