Senator Sharon Carson was blunt. “The Senate is not going to move off the Senate position.” Her colleague Jeb Bradley was equally straightforward. “We know how to count. I just know where the votes are. There are not thirteen votes for anything other than viability.” With that, the committee of conference for the Senate’s fetal homicide bill, SB 40, took shape on Monday morning.
The Senate’s bill would make a fetal homicide law effective for the death of “a viable fetus.” SB 40’s definition of viability: “capable of sustained extrauterine survival.”
Bradley went on to warn, “If nothing is better than something, we’re going to end up with nothing.”
For now, House conferees must make a choice: go along with the Senate position, or go home empty-handed this year? Hard to swallow, after a promising start in January. The committee will meet again later this week, facing a deadline of Thursday afternoon for signing off on a report.
The circuitous path to conference
The New Hampshire legislature started the 2015 session with two fetal homicide bills. This looked like the year when the state would finally get with the program and join more than three dozen other states in enacting a law making it a crime to cause the death of a preborn child against the will of the mother. Two families testified in person. Current and former legislators spoke up. The New Hampshire Supreme Court’s Lamy decision was once again introduced as testimony to the necessity for a fetal homicide law. Surely, there could be compromise between the two bills, and the Governor could have something to sign (or something to reject).
The House, led by Rep. Leon Rideout’s dedication to passing Griffin’s Law, passed HB 560 that would have made a fetal homicide law effective for any preborn child killed against the mother’s will more than eight weeks into pregnancy. The Senate shunted that bill aside, preferring the language of SB 40. The House amended SB 40 to make it consistent with HB 560 – hence the conference committee and today’s sobering assessments by Senators Carson and Bradley.The two senators were put by at least twelve of their Senate colleagues into the uncomfortable position of delivering a my-way-or-the-highway message.
Unmentioned by conferees: the Lamy case
When the New Hampshire Supreme Court in the 2009 Lamy case reluctantly overturned the conviction of a drunk driver whose actions had led to the death of Dominick Emmons, the unanimous Court suggested the legislators revisit the homicide laws as they pertain to a fetus. In Monday’s brief committee meeting, legislators aired their positions and frustration openly, but neither the Lamy case nor the name of Dominick Emmons were mentioned.
Would the Senate language have covered the death of baby Emmons? He was delivered prematurely at seven months’ gestation when the car driven by his mother was hit by a car driven by a drunk driver. He sustained serious injuries from the collision. He was taken to a Manchester hospital where after two weeks on life support he died. The Supreme Court ruled that under New Hampshire’s born-alive rule, the driver could not be held criminally liable for causing the death of Dominick Emmons.
Would a law with “sustained extrauterine survival” have covered that case? Is two weeks’ survival “sustained”? Or would such language have led to the same unfortunate outcome the Court handed down in Lamy?
It’s obvious that the Senate language would not cover pregnancies involving non-viable fetuses whose development could have continued uneventfully but for the bad actions of another (taken against the mother’s wishes). But just how late in pregnancy would the Senate language be useful?
And why haven’t legislators called for an advisory opinion on this language from the Supreme Court? The Court could decline to offer one, but surely the inquiry is worth making.
The bare minimum standard for any New Hampshire fetal homicide legislation ought to be whether it would have led to a different outcome had it been in place when Dominick Emmons died. No one talked about that today.
Rideout: disappointed, but prepared with an alternative
Rep. Leon Rideout is one of four House members on the conference committee. The Senate position distresses him. “I’m very disappointed to hear there’s no room for the Senate to move. It [the Senate version] is mushy language. I don’t see it as justice for the families.” That’s when Senator Bradley reminded him of the math on the Senate’s side. “There are not 13 votes for anything other than viability. Are we going to offer a measure of justice?”
Rep. Rideout then asked his colleagues to consider a 24-week bill. That’s far later than the eight weeks he endorsed in his House bill, but he said, “I am willing to compromise to get something done.” Senator Carson, chair of the committee of conference, agreed to recess the proceedings to Thursday to give conferees a chance to consider Rideout’s proposal. No doubt it will be circulated among senators, although Senators Carson and Bradley warned repeatedly today that nothing other than sustained-extrauterine-survival will garner the 13 votes necessary for Senate passage.
Rep. Rideout had some math of his own to share with his friends from the Senate. “This viability language will lose between thirty and forty votes in the House.”
Rep. David Welch, named as a conferee, was unable to attend Monday’s session. Senator Bette Lasky, no fan of fetal homicide bills in any form, was silent during the meeting. That left two other reps who were very much part of the morning’s discussion.
Rep. John Tholl is chairman of the House Criminal Justice and Public Safety committee in which both fetal homicide bills were heard. Tholl was reluctant to walk away from the Senate’s virtual ultimatum. “We’re concerned that we have to pass something. I think walking away would be a disservice to the families. Not the best service we can do the public.”
Rep. John Burt, however, is prepared to wait. “I never pass something just because I don’t have the votes [for a better version]. Let’s pass the best bill and do a roll call. The attorneys I’ve spoken with say the viability language would just be a nightmare. I just see that we have to have a particular week in there. I would prefer to come back [with a bill] in 2016.”
The committee will re-convene Thursday, June 18, at 1 p.m. Conference reports are due by the end of that day, with full House and Senate action no later than June 25.