Fetal homicide legislation up for debate in House

Monitor staff
Published: 5/31/2017 9:55:54 PM

Over Democrats’ objections, a House committee has revived a bill that would let the state pursue homicide charges against a person who causes the death of a fetus, even in cases when the mother lives.

The measure is expected to come up for a vote in the House on Thursday, and Republican Gov. Chris Sununu intends to sign it should it reach his desk, his spokesman said.

Supporters argue the change ensures justice for women who lose a pregnancy due to a car accident or an assault. But critics warn the measure treats fetuses like people and could erode the rights of pregnant women.

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.

Recent measures to establish fetal homicide laws in New Hampshire have failed at Republican hands due to disagreement over when in fetal development the law should take effect. GOP senators and representatives seem satisfied with Senate Bill 66, which requires the fetus reach 20 weeks before prosecutors can pursue charges for murder, manslaughter, negligent homicide or aiding a suicide.

“Anyone who loses their child, once they make a choice to have that child and that choice is taken away, they should be allowed some closure,” said Sen. Regina Birdsell, who filed the bill at the request of a woman who was nine months pregnant when she was in a car crash and lost her baby.

The bill exempts abortions or “any act committed by the pregnant women,” but those steps haven’t resolved opponents’ concerns that the bill threatens women’s rights. They warn that other states have used fetal homicide laws to subject pregnant women to incarceration and involuntary medical treatment, including cesarean sections.

“For the first time in New Hampshire law, it recognizes a fetus as an independent victim of a crime. What that does is create a problematic dynamic that pits fetal rights against the rights of a pregnant woman,” said Devon Chaffee, Executive Director of the American Civil Liberties Union of New Hampshire.

Democrats in the House are mounting an effort to amend the bill by increasing the penalties for homicide in cases in which the victim is pregnant. It’s not clear whether that will gain support in the Republican-led chamber.

Under current state law, someone who negligently or recklessly causes a pregnant women to miscarry can be charged with felony assault – not homicide – and face up to 15 years in prison.

The issue has long been debated in the Legislature. In 2009, then-Attorney General Kelly Ayotte recommended a review of fetal homicide laws after the New Hampshire Supreme Court decided a 7-month-old fetus couldn’t be a homicide victim because it wasn’t “born alive.”

The court vacated negligent homicide and manslaughter convictions associated with the death of the fetus for a Hooksett man who was driving while intoxicated when he crashed his car into a taxi that was being driven by a pregnant woman. She suffered a broken pelvis and injuries to her fetus, which later died. The court’s decision suggested lawmakers take a look at the statutes.

“Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide laws as they pertain to a fetus,” the court decision said.

Though the bill initially would have allowed homicide charges only in the death of viable fetuses, meaning those that can survive outside the mother’s womb, the Republican-controlled Senate later amended the bill to apply at 20 weeks gestation.

Democrats argued the threshold is arbitrary and not based in any science. But Birdsell said the change represents a compromise with House members, who in the past have pushed for homicide charges when an 8-week-old fetus dies.

At first, the House Criminal Justice and Public Safety Committee decided to hold the bill over the summer for more work after a slim majority of members voted against endorsing the policy, according to Democratic Rep. Renny Cushing. But in a rare move weeks later, the committee reconsidered and voted, 12-8, in favor of the bill’s passage.

“There was no public notice,” Cushing said. “It’s a matter of transparency.”

Democratic Rep. Roger Berube of Somersworth said he decided to back the bill upon reconsideration, though at first he didn’t think it went far enough.

“I really wanted to have a bill that would support life that begins at conception,” he said. “It’s better half a loaf than a full loaf.”

(Allie Morris can be reached at 369-3307 or amorris@cmonitor.com.)

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