UCMJ Article 119a: Death or Injury of an Unborn Child

Article 119a makes it a separate offense to cause the death of, or bodily injury to, an unborn child while committing one of eight listed offenses against the pregnant woman. The accused need not have known she was pregnant or intended to harm the child. Punishment must be consistent with what the same harm to the mother would bring, but death is never authorized; an intentional killing or attempted killing of the unborn child is punished as murder, voluntary manslaughter, or attempt.

Eight predicate offenses in § 919a

Under 10 U.S.C. § 919a(a)(1), a person subject to the UCMJ who engages in conduct violating one of the listed provisions “and thereby causes the death of, or bodily injury (as defined in section 1365 of title 18) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense.”

The listed provisions, in § 919a(b), are murder (Art. 118), voluntary manslaughter (Art. 119(a)), involuntary manslaughter while committing an offense directly affecting the person (Art. 119(b)(2)), rape (Art. 120(a)), robbery (Art. 122), arson (Art. 126), assault (Art. 128), and maiming (Art. 128a).

The article was added to the UCMJ by Pub. L. 108-212, enacted April 1, 2004.

Four offenses in the Manual

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 58.b, separates injuring, killing, attempting to kill, and intentionally killing an unborn child. Each requires that the accused was engaged in one of the listed offenses against a woman, that she was pregnant, and the result.

For every listed offense except arson, the woman must be the victim of the underlying offense. For arson, she “must have some nexus to the arson such that she sustained some bodily injury due to the arson.” “Woman” means a female of any age (¶ 58.c(1)).

What need not be proved

Under § 919a(a)(2) and ¶ 58.c(2), the offenses of injuring or killing an unborn child do not require proof that the accused knew or should have known the woman was pregnant, or that the accused intended to cause the death of or injury to the unborn child. The attempt offense is different: it requires that the accused intended to cause the child’s death (¶ 58.c(3)).

“Bodily injury” takes the federal definition in 18 U.S.C. § 1365: a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of a bodily member, organ, or mental faculty; “or any other injury to the body, no matter how temporary” (¶ 58.c(4)). An “unborn child” is a member of the species homo sapiens carried in the womb “at any stage of development, from conception to birth” (¶ 58.c(5)); there is no viability threshold.

What the article does not reach

Section 919a(c) states that nothing in the section permits prosecution of any person for conduct relating to an abortion consented to by the pregnant woman (or a person authorized by law to act for her), or where consent is implied by law; of any person for medical treatment of the pregnant woman or her unborn child; or of any woman with respect to her own unborn child.

Punishment measured against harm to the mother

For injuring or killing, the punishment is “such punishment, other than death, as a court-martial may direct, which shall be consistent with the punishments prescribed by the President for that conduct had that injury or death occurred to the unborn child’s mother” (§ 919a(a)(1); ¶ 58.d). An assault that injures the unborn child is measured against the maximum for that assault on the mother under Article 128; a death caused during an involuntary manslaughter against the maximum for manslaughter under Article 119.

When the accused intentionally kills or attempts to kill the unborn child, § 919a(a)(3) directs that the accused be punished instead under Articles 80, 118, and 119(a) “for intentionally killing or attempting to kill a human being.” Under § 919a(a)(4), “the death penalty shall not be imposed for an offense under this section.”

Article 119a as a covered offense

The list in 10 U.S.C. § 801(17)(A) names section 919a. For conduct after December 27, 2023, that places the case with a special trial counsel, whose authority under 10 U.S.C. § 824a(c) is exclusive: deciding whether the report is a covered offense, and then whether to refer, dismiss, or make a plea agreement.

Sources

• 10 U.S.C. § 919a, Article 119a, Death or injury of an unborn child (Cornell LII)
• 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
• 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 58

General information about military law, not legal advice for any individual case.