I wanted to see fetal homicide legislation passed this year in New Hampshire, as I’ve wanted to see since it was first introduced in the early 1990s. I frankly preferred the House version to the Senate version, but I was among those who wanted to see something passed that would address the Lamy decision. The last thing I wanted or expected was to see the legislative session end with no progress. This puts me at odds with some good people and longtime allies who see violation of principle where I see math.
There should be a fetal homicide law in place. There isn’t, and that’s not because of any actions by the usual suspects who have opposed the very idea all along. Governor Hassan should have some version of fetal homicide legislation on her desk awaiting signature right now. Would a woman contemplating higher office really want to run with a veto of such legislation hanging around her neck, especially in the face of families who have lost children? We won’t know, at least not this year.
“Unable to reach consensus”
The report to the House written by Rep. John Tholl in July 19’s House calendar is succinct. “SB 40-FN, including a fetus in the definition of “another” for the purpose of certain criminal offenses. The conferees were unable to reach a consensus on section 4 of SB 40, and as a result SB 40 fails.” The sticking point is the Senate definition of viability as “sustained extrauterine survival.”
Meanwhile, the House’s fetal homicide bill, HB 560, was re-referred to committee by the Senate and will not be acted upon before the end of this year’s session. In the House’s fetal homicide language, “fetus” is defined as beginning eight weeks after conception.
The New Hampshire Supreme Court’s unanimous admonition in the 2009 Lamy case remains unanswered. After being forced to overturn a conviction in the death of a preborn child who succumbed to injuries inflicted by a drunk driver, the Court wrote, “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 statutes as they pertain to a fetus.”
Following Thursday’s brief and fruitless conference committee session, little knots of people formed and re-formed in and around the hearing room, expressions of disappointment predominating. I was nearly in tears myself. Among supporters of fetal homicide legislation, House members quietly blamed Senators while Senators quietly blamed House members. Each believed that the right language was at hand if only the other side would budge.
I got a quiet lesson in procedure from a Senator (not someone who spoke on the bill this week) after Thursday’s meeting. “A committee of conference is not like a subcommittee.” Pressed for time, I was told, conferees are not likely to be able to parse proposed amendments thoroughly. That’s a backdrop to the week’s events and a factor in the outcome.
Tuesday’s initial conference committee meeting on SB 40 was brief, after Senators Sharon Carson and Jeb Bradley notified their House counterparts that the Senate could not muster a majority for anything other than the Senate-passed language: fetal homicide would only apply in the death of a fetus that would otherwise be capable of “sustained extrauterine survival.” Thirteen votes were committed to that in the 24-member Senate.
Representative Leon Rideout, sponsor of HB 560, offered an amendment to make the bill effective at 24 weeks’ gestation. Senator Carson, leading the conference committee, agreed to recess the meeting to Thursday to give committee members and Senators time to consider the new language. Upon re-convening Thursday, Carson and Bradley once again had to inform conferees that the Senate position was firm. Rideout tried one last time to reach out to the Senators, offering viability defined as “capable of extrauterine survival With Or With Out Medical Assistance[, and] [A]ny Injuries Resulting From The Offense Shall Not Be Considered In Determining Viability.”
No go. The deadline for conference committee reports was only hours away. With obvious frustration, Carson declared an impasse and the meeting was over. Senator Regina Birdsell, prime sponsor of SB 40, looked on quietly. Her disappointment was evident.
Two bills, two sponsors, two views, two families
Rideout is sponsor of HB 560, also known as Griffin’s Law, now in abeyance until 2016. He told his fellow conferees that his test for a bill was whether it would address Lamy and whether it would have covered the death of his grandson Griffin. He thinks the Senate language is inadequate. “With deep regret, I cannot concur.” He later posted on his official Facebook page: “I am deeply disappointed to report That even after meeting the Republican #NHSenate more than 95% of the way they refused basic clarification language changes to SB 40.”
Birdsell is the prime sponsor of SB 40. As Rideout has brought forward the story of Griffin, Birdsell has brought forward the Crucitti family. This is not a theoretical issue for either sponsor. Frustration is running deep on all sides. On her official Facebook page, Birdsell posted this:
I sponsored SB40 one of the Fetal Homicide bills. It would have allowed the state to charge someone with a homicide if they killed an unborn child after Viability. Was it perfect? No, but we finally had the votes in the Senate and we had a real possibility of getting the Governor to sign it, however in the Committee of Conference two House members would not allow it to go any further. I’m disappointed because it would have been a start to allow families to get some closure when their world is torn apart by the loss of an unborn child. Once in the books we could have worked to make it better, but because of a different agendas from certain members of the House it didn’t work out, however I will continue to fight on for this bill!!
In the comments on that post, Rideout took sharp issue with Birdsell’s summary. Her reply: “[T]he Senate did not have the votes for your version.”
Regina Birdsell is a friend of mine, and I asked her about the situation later. She said nothing to me in private that’s at variance with what she said in public. “We know where thirteen votes are” – something Bradley and Carson both emphasized in conference. She believes passage of SB 40 with the Senate language might have been acceptable to the Governor, with adjustments to the medical language possible when HB 560 comes up from its re-referral next year.
I suspect the families of Griffin and the Crucitti baby will be back next time. I also suspect they’re at a loss to understand why nothing passed.
If the bruises raised this week don’t heal, if this becomes just another circular firing squad as the opponents of ANY fetal homicide law look on placidly, the families are bound to be disappointed again.
Nothing vs. something, and two nagging questions
On Tuesday, as previously reported, Senator Jeb Bradley said, “If nothing is better than something, we’re going to end up with nothing.” Representative John Burt demurred. “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.”
Considering nothing-vs.-something, I wondered how other states have handled fetal homicide laws. Sponsors of every fetal homicide bill since Leo Pepino’s bill a quarter of a century ago have cited the fact that x-number of other states (currently thirty-eight) have some kind of fetal homicide law. I consulted the National Conference of State Legislatures web site. A quick review showed me that 14 of those states have fetal homicide laws applicable throughout pregnancy, with exceptions for medical emergencies and acts authorized by the mother. Ten states use the word “viability” or “quick [child]”. Other states have things like implantation (now there’s a point to litigate) or a specific week in pregnancy.
My greatest misgiving about SB 40 is its definition of viability as being capable of “sustained extrauterine survival.” The NCSL site does not dive into the details of each state’s definition of viability. Assume for now that it’s a flexible, debatable term.
Given that, why would any opponent of SB 40 cite the thirty-eight state figure? If viability is an objectionable point to use, why count the states that use it in their laws?
If we’re unsure if SB 40 would cover Lamy – in other words, if we want to know if having SB 40 in place would have let Lamy’s conviction stand – why not seek an advisory opinion from the New Hampshire Supreme Court? That’s a decision for legislators. I honestly wonder why that hasn’t been done. Perhaps it can still be done with HB 560.
Representative Kathy Souza of Manchester, who has worked for a fetal homicide law since the days of Leo Pepino, warned me that in her view, the language of SB 40 would lead to an unenforceable law that would also knock out the born-alive rule currently in place. Is she right? In the absence of an authoritative legal opinion, I don’t know. Souza and leaders of New Hampshire Right to Life harbor no such doubts. In their view, SB 40 won’t do. Eleven senators agree with them, albeit for radically different reasons.
The Senate count
In March, senators voted 13-11 to pass SB 40 with the same language that was brought to conference. Seems to me that’s the chamber where attention should be focused going forward.
These are the senators who voted to pass SB 40. We can only speculate which one would have withdrawn her or his support if faced with House language. All are Republicans: Kevin Avard, Regina Birdsell, David Boutin, Jeb Bradley, Sharon Carson, Sam Cataldo, Gary Daniels, Jeanie Forrester, Jerry Little, Chuck Morse, Russell Prescott, John Reagan and Andy Sanborn.
And then there were the eleven for whom even “sustained extrauterine survival” was too big a pill to swallow. All are Democrats except Stiles: Lou D’Allesandro, Dan Feltes, Martha Fuller Clark, Andrew Hosmer, Molly Kelly, Bette Lasky, David Pierce, Donna Soucy, Nancy Stiles, David Watters and Jeff Woodburn.
I feel very safe in saying that not one of those eleven opposed the bill because it wasn’t strong enough. Quite the contrary. Likewise, I know I cannot paint the thirteen supporters with a broad brush, calling them somehow opposed to stronger language. All it took was one of them to refuse to agree to House language. That one is comfortably anonymous for now. I wish I knew the name for sure, so I could publicly lay this impasse at that senator’s feet.