State charges possible in Ohio kidnapping-abortion case
By Douglas Johnson, NRLC Federal Legislative Director
WASHINGTON (May 17, 2013) — A Florida man is being held without bail after being indicted on a federal charge that he murdered his own unborn child.
John Andrew Welden, 28, was indicted by a federal grand jury on May 14 on two federal charges, one of them a murder charge made possible by the federal Unborn Victims of Violence Act (18 U.S.C. Section 1841), legislation that was instigated by NRLC and signed into law by President George W. Bush in 2004. If convicted on that charge, Welden faces a mandatory life sentence.
According to the indictment, statements by the federal prosecutor quoted in the press, and other documents and proceedings conducted earlier in state courts, Welden allegedly took his girlfriend, Remee Jo Lee, 26, for a medical examination by his father, who is an obstetrician-gynecologist. A sonogram and blood test confirmed that Lee was six weeks pregnant.
According to a complaint filed by Lee in a civil suit and news reports, Lee wanted to keep the baby even if she had to raise the child herself. She took her sonogram to the Chipotle restaurant where she works to show to others. “She had a name for the baby she wanted to have,” said Assistant U.S. Attorney Steve Muldrow, quoted in the Tampa Bay Times.
However, according to the civil complaint, Welden “did not want [Lee] to give birth to his child, and begged [Lee] not to give birth to the child.”
Following the examination, Welden told Lee that the doctor’s tests showed that she had a bacterial infection, and that the doctor had prescribed an antibiotic. Prosecutors say this was a lie — Weldon allegedly had forged the doctor’s signature to obtain a container of an abortion-inducing drug, Misoprostol (Cytotec), “removing, altering, and obliterating the identifiers from the product . . . by placing a label with the name of an individual [Lee] and a label with the name of a different medicine (Amoxicillin) . . .” The doctor is not charged with any wrongdoing.
Because she believed the pills to be an antibiotic prescribed by the doctor, Lee took the drug, the complaint alleges. Her pregnancy was approaching seven weeks at that point.
“Soon after ingesting the first pill, [Lee] became seriously ill while at her place of employment. . . [she] went to the hospital where it was determined that [she] had suffered a miscarriage that had been intentionally induced by the ingestion of Cytotec. [Lee’s] ingestion of the Cyotec pills caused her to lose her fetus,” according to the complaint.
“He came to my house with the pills, his weapon of choice,” Lee said, according to a story by a reporter for abcactionnews.com.
The Tampa Tribune quoted other statements by Lee at an April 9 hearing at which Lee sought a restraining order against Welden: “I went to the emergency room and there they told me the baby was not going to make it. Its heartbeat had stopped. . . .What matters is I wanted, the only thing that mattered to me was the child. That’s the only thing that mattered. I didn’t even care if he was around or not. I have specific messages where I told him, please, leave me alone. Don’t harm me or the child. Just leave us alone. That’s all I wanted. I wanted this baby. You can ask any of my co-workers, my family, everybody. I was beyond joy for this baby. It was everything. It was a chance to turn all of that crap around and not ever be that person, and watch cartoons and play with toys and be happy for once.”
Both the civil complaint and press accounts allege that Welden admitted what he had done, first to Lee and later in a recorded confession to law enforcement officers. In addition, “A drugstore surveillance camera captured the Cytotec purchase,” reported the Tampa Bay Times.
However, Welden has not yet entered a plea regarding the charges.
Two Federal Charges
The Times reported that the case was initially investigated by the Hillsborough County Sheriff’s Office, which then turned its 225-page report over to the FBI and to the U.S. Attorney’s Office. The U.S. Attorney’s Office took the case to federal grand jury.
It is a federal crime to “tamper with any consumer product . . . or the labeling of, or container for, any such product,” if such tampering is done with reckless disregard for risk of death or bodily injury. The first charge in the indictment charges that Welden broke this law. That charge then served as a stepping stone to a second federal charge, which is based on the Unborn Victims of Violence Act (UVVA).
The UVVA provides that if during commission of any of 68 specific federal crimes (one of which is the product-tampering statute), an unborn child is injured or killed, a second charge may be brought on behalf of the second victim — the unborn victim. The federal grand jury did exactly that in this case. Citing the UVVA, the indictment charges Welden with the murder of “the unborn child in utero of [Remee Jo Lee].” The murder charge carries a maximum possible penalty of life in prison.
Currently, 37 states recognize unborn victims of homicide in at least some circumstances. Of these, 27 states recognize the unborn child as a victim during the entire period of pre-natal development, while 10 apply protection only at some defined point in pregnancy. When a new law takes effect in Arkansas in August, that state will move from the “partial protection” category to the “full protection” category.
Florida is among the states with a “partial protection” law — it applies only after the point at which the baby “becomes capable of meaningful life outside the womb through standard medical measures,” which would be about 23 weeks after a woman’s last menstrual period. Since Lee was about seven weeks pregnant, the Florida law would have no application in her case.
The federal law, however, applies to a “child in utero,” defined as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”
NRLC collaborated in the drafting of the UVVA, and led a five-year battle for its enactment. Even though the legislation specifically did not apply to legal abortions, pro-abortion advocacy groups such as NARAL and Planned Parenthood fought it tooth and nail, since they oppose any legal recognition of an unborn child in any context. The bill finally cleared both houses in 2004 and was signed into law by President George W. Bush.
A UVVA charge is possible only when someone commits a “predicate” federal crime — one of the 68 crimes listed in the UVVA — and also injures or kills an unborn child during the commission of that crime. Some of the federal crimes are defined in terms of location (e.g., federal jurisdictions), some in terms of specific classes of victims (e.g., certain federal officials), and some in terms of particular acts that Congress has defined as federal crimes wherever they occur (e.g., certain acts of “terrorism”). Most acts of violence, however, do not involve any of these factors, and so in most cases only state law will apply to a crime that injures or kills an unborn child.
Welden is third UVVA-based case
Based on research conducted by National Right to Life, it appears that Welden is the third person to face a federal UVVA-based charge since 2004.
The first known case involved a defendant in New Mexico named Frederick Beach, who killed a pregnant woman on an Indian reservation. In that case, the UVVA-based charge was dropped after Beach pleaded guilty to second-degree murder of the baby’s mother, in 2010.
In the second case, an Air Force enlisted man, Scott D. Boie, was convicted in 2009 of “attempted killing of an unborn child” by placing the drug Misoprostol into the food of his pregnant wife. Boie was sentenced by a military court in Alaska to nine and one-half years incarceration on the UVVA-based charge and other charges.
Boie appealed his UVVA-based conviction, arguing that the UVVA incorporated a theory of when life begins, in violation of the U.S. Supreme Court’s rulings regarding legal abortion and in violation of the constitutional prohibition on establishment of a religion. Boie also argued that the UVVA violated his constitutional right to “equal protection” because it discriminated against him on the basis of his sex, since his wife could have had the same baby killed in a legal abortion. A three-judge panel of the Air Force Court of Criminal Appeals rejected Boie’s constitutional arguments and upheld the UVVA-based conviction. (United States v. Boie, 70 M.J. 585 (June 29, 2011)).
Ohio kidnapping case
The fetal homicide issue has also surfaced in recent media accounts regarding Ariel Castro. who is charged with kidnapping three girls and holding them prisoner for a decade in a house in Cleveland, Ohio. The county prosecutor has indicated that he may ask a local grand jury to also charge Castro under Ohio’s fetal homicide law. According to press reports based on police reports, one of the kidnapped women, Michelle Knight, alleged that Castro impregnated her five times and each time caused her to abort by starving her and punching her in the belly. Under Ohio’s fetal homicide law, such acts, if proved, could constitute “aggravated murder.”
None of the information currently publicly available regarding the Castro case suggests that the federal UVVA would apply in that case.
Editor’s note: Douglas Johnson, NRLC’s legislative director since 1981, directed the five-year campaign by NRLC that led to enactment of the Unborn Victims of Violence Act in 2004. He has written extensively on the subject of “two-victim crimes” and fetal homicide laws. Mr. Johnson can be reached at firstname.lastname@example.org. This article is based in part on legal research by Susan T. Muskett, J.D., NRLC senior legislative counsel.
The National Right to Life website contains the most complete collection of resources available anywhere on the Internet on fetal homicide, including a summary of all state fetal homicide laws, a summary of court decisions upholding such laws, and detailed stories on two-victim crimes, all at: www.nrlc.org/Unborn_Victims/index.html