A bill purporting to protect pregnant women against violence, the Unborn Victims of Violence Act of 2006 (S1084/H4790-UVVA), has passed the Senate and is now being considered in the House. The UVVA establishes the unborn as independent "victims," with legal rights distinct from the women who have been attacked. The bill's supporters claim that it protects pregnant women against violence; yet this law treats the pregnant woman herself as little more than collateral damage.

One Senate Judiciary Committee member who supports the bill actually expressed the view that the focus must be on the unborn rather than on protecting pregnant women. In his opinion, women could be guilty of angering men and provoking an attack whereas the unborn are completely innocent and deserve special protection.

Sadly, there is no indication that this law or any of the similar UVVA and feticide laws passed in 30 other states and by the federal government have done anything to protect pregnant women or their children. Rather, pregnant women in states with such laws are more likely to be punished if something they did or did not do is believed to have risked harm to a fetus.

In Utah, prosecutors publicly declared that their state's version of the UVVA provided the basis for arresting a woman who decided to wait to have a Caesarean section. They argued that she could be prosecuted for murder, because by exercising her right of informed medical decision-making, they claimed she caused one of her twins to be stillborn. In states whose UVVA style laws create explicit exceptions for the pregnant woman, such as California and Missouri, the laws have nevertheless been cited as a basis for arresting women who prosecutors claimed risked harm to their future children.

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As a result of judicial activism, South Carolina already has a feticide law that applies after viability. In 1984, South Carolina's Supreme Court created a state feticide law in a case where a man viciously stabbed his pregnant girlfriend, causing her, among other things, to lose her pregnancy. In 1997, South Carolina used this law against a pregnant woman, Cornelia Whitner, who was charged with failing "to provide proper medical care for her unborn child." Whitner had given birth to a healthy baby who tested positive for an illegal drug. Based on extrapolation of the feticide case law, Ms. Whitner was convicted of criminal child abuse. At sentencing, Ms. Whitner begged for drug treatment. The judge responded, "I think I'll just let her go to jail."

This case law has also been used to punish a woman for experiencing a stillbirth. Regina McKnight, despite a drug problem, had every hope of carrying her pregnancy to term. Her pregnancy ended in stillbirth. The hospital reacted not by offering her counseling or drug treatment, but rather by helping build a criminal case against her. Eventually she was convicted of murder, despite the fact that the South Carolina Medical Association and other leading health groups concluded there was no evidence that McKnight's drug use caused the stillbirth.

While South Carolina ranks in the top three states in murders of women by men and last in the number of state dollars spent on drug treatment, the primary targets of the state's fetal protection laws are pregnant women and new mothers who need drug treatment and mental health services.

So what is the real purpose of this bill? Members of the Republican Senate Caucus and other supporters have publicly noted the real intent of this bill is to grant personhood to the unborn, as a way of creating a legal foundation that could ultimately be used to overturn Roe vs. Wade. One senator wrote that this bill will "further secure the rights of unborn children in this state."

Perhaps this is why some legislators are refusing to consider alternative legislation that would protect both women and their future children. Statutes in other states such as Maine, New Mexico and North Carolina make it an offense to inflict an injury on a pregnant woman, in the commission of a felony that causes miscarriage or stillbirth. These statutes value both maternal and fetal life without making pregnant women vulnerable to arrest by separating fetal and maternal rights.