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N.H. fetal homicide bill unintentionally gives pregnant women impunity to murder 

  • The State House dome as seen on Friday, Sept. 11, 2015. (ELIZABETH FRANTZ / Monitor staff)

  • The finished eagle on top of the State House dome.



Monitor staff
Monday, June 12, 2017

State lawmakers are scrambling to fix a fetal homicide bill that critics say has serious unintended consequences, including letting pregnant women kill people with impunity.

“The bill as drafted allows for physician-assisted suicide and allows a pregnant woman to commit homicide without consequences,” said Republican Rep. JR Hoell, who is urging Gov. Chris Sununu to veto the bill. “Although that was never the intent, that is the clear reading of the language.”

State House leaders are now planning to clarify the bill, put it back up for a vote and send a revision to Sununu.

“We’re going to fix it,” said Senate Majority Leader Jeb Bradley, a Wolfeboro Republican. “Everybody agrees the intent was never to allow this kind of circumstance.”

Under Senate Bill 66, fetuses at certain stages of development can be considered victims of murder or manslaughter. Supporters say the change will ensure justice for women who lose a pregnancy due to an assault or a car accident, but critics warn that the measure treats fetuses like people and could erode the rights of pregnant women.

At issue is an exemption that protects doctors and women seeking abortions from fetal homicide charges. As written, the bill suggests that “any act committed by the pregnant woman” or a “physician” wouldn’t apply in cases of second-degree murder, manslaughter, negligent homicide, or causing or aiding suicide.

Attorneys say the wording would be unlikely to let all pregnant women charged with homicide off the hook, due to several legal factors including a basic principle that statutes be construed to avoid an “absurd result.” But they agree the language is overly broad and not entirely clear.

“It seems like a completely legitimate concern that should be taken seriously by the governor and Legislature,” said Devon Chaffee, executive director of the ACLU of New Hampshire, which opposed the bill.

Concerns with the bill’s wording didn’t come up in public hearings and were only brought to lawmakers’ attention recently, they said. The legislation has already gotten approval from the Republican-led House and Senate.

Through what’s known as the “enrolled bills process,” Republican Senate leaders now plan to tighten the exemption and put the fix up for a vote June 22, Bradley said. It’s not yet clear how the revision will read.

“I don’t think anybody will have a problem with it, even at least, I hope, people who are opposed to Senate Bill 66,” he said. “Whether you are for SB 66 or against it, I don’t think anybody would support allowing manslaughter, murder, etc.”

Amendments at this late stage – once a bill has already cleared the Senate and House – usually consist of minor spelling or grammar corrections that don’t need another vote. Because changes to the fetal homicide bill deal with the legislative intent, Bradley said another vote is needed for transparency. The House plans to make the same fixes, but won’t seek sign-off from the full chamber, according to Republican Majority Leader Dick Hinch.

Republicans have long pushed for fetal homicide laws. This year’s bill, which Sununu has said he will sign, would apply in cases when a fetus dies after it reaches 20 weeks gestation.

The threshold represents a compromise among Republicans, who in the past haven’t been able to agree on what stage in fetal development the policy should take effect. Democrats argued the 20-week marker is arbitrary and not based in any science.

At least 38 states currently have fetal homicide laws, and 23 of those apply to the earliest stages of pregnancy, according to the National Conference of State Legislatures.

Hoell blamed the wording mistake on lawmakers’ efforts to push the bill through prematurely, he said. An anti-abortion Republican, Hoell voted against the measure after hearing from defense attorneys about the unintended consequences. “It really needs to be fixed,” he said. “I would start with a veto and start from scratch.”

(Alyssa Dandrea contributed to this story. Allie Morris can be reached at 369-3307 or amorris@cmonitor.com.)