New Hampshire will remain for now one of the few states without a fetal homicide law. House and Senate could not agree on the language for HB 560, sponsored by Rep. Leon Rideout (R-Lancaster). There will be no committee of conference.
Most states along with the federal government have such laws, sometimes called Unborn Victims of Violence acts. Such legislation permits under certain circumstances the prosecution of assailants for causing the death of a preborn child against the will of the mother.
New Hampshire legislators have considered fetal homicide legislation several times since the early 1990s. The New Hampshire Supreme Court urged legislators to take a look at such measures, since the absence of a fetal homicide law forced the Justices to overturn a drunk driver’s conviction for causing the death of a child (State v. Lamy ).
House and Senate passed a fetal homicide bill in 2012 but fell short of overriding Governor Lynch’s veto. In each of the past three years, legislation has foundered on disputes between House and Senate over language. Eight weeks’ gestation, “viability,” “capable of sustained extrauterine life”: nothing has yet attracted a majority in both chambers.
Neither chamber’s leadership has seen fit to ask the Supreme Court for an advisory opinion on whether either chamber’s version of fetal homicide legislation would satisfy the concerns expressed by the Court in Lamy.
The New Hampshire Senate Judiciary Committee has recommended passage for HB 560, the fetal homicide bill introduced as “Griffin’s Law” last year by Rep. Leon Rideout (R-Lancaster) – but with an amendment that reportedly substitutes language similar to last year’s SB 40. (The amendment, 3011-S, is not yet on the docket for the bill available for viewing, as of the time this is being posted.)
Committee chair Sen. Sharon Carson (R-Londonderry) said that she had consulted Rideout about the amended language. Rideout confirmed that information to me after the hearing, saying that while he hasn’t yet seen the text of the amendment, he wants conversation about fetal homicide legislation to continue.
Referring to last session’s failure of a conference committee on SB 40, Carson said, “I know we’re divided on this issue. We can try again.”
The committee vote of Ought to Pass with Amendment was 3-2 along party lines, with Sens. Sharon Carson (R-Londonderry), Gary Daniels (R-Milford) and Sam Cataldo (R-Farmington) in favor. Senators David Pierce (D-Lebanon) and Bette Lasky (D-Nashua) voted no.
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.
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The New Hampshire Senate on Thursday voted to re-refer the fetal homicide bill nicknamed “Griffin’s Law”, HB 560, to the Senate Judiciary Committee.
This will keep the bill introduced by Rep. Leon Rideout off the Senate floor for the rest of this year. According to Senate rules, “Rerefer to committee shall be a committee report only in the first year session and all such rereferred bills or resolutions shall be acted on by the fourth legislative day of the second year session.” 2015 is the first year of the two-year legislative session.
Senator Regina Birdsell’s Senate Bill 40, another fetal homicide measure, is still under consideration. It was amended in the House to be consistent with HB 560. It has not yet been scheduled for a concurrence vote in the Senate.
Rep. Rideout issued a statement after the vote. “I will continue the effort to bring a clear and concise fetal homicide law to New Hampshire. Families of the most innocent victims deserve no less from our state.”
Notes on a the vote: Two votes were taken on the same motion Thursday for HB 560. The Judiciary Committee recommended re-referral, and that motion was brought up for a roll call vote. It failed on an 11-13 vote, with supporters and opponents of the underlying bill on both sides of the re-refer question. The Senate President then ordered a thirty-minute recess that stretched to an hour. When the Senate re-convened, Senator Gary Daniels (a Griffin’s Law supporter) made another move for re-referral. Senator Kevin Avard asked for a roll call, but withdrew the request after a hasty conversation with his colleagues. Re-referral then passed on a voice vote.
The motion that will come before the New Hampshire Senate this Thursday for Griffin’s Law is “re-refer to committee.” Not Ought to Pass, not Inexpedient to Legislate, not Table – although any of those could come up if the re-referral motion fails. For now, though, as non-public conversations go on among Senators on this bill and others, the agenda includes a re-refer motion on HB 560. This would send the bill back to the Senate Judiciary Committee for more consideration.
Sponsor Rep. Leon Rideout was unperturbed when I asked him about the motion this morning. “We have a bill, and it’s still moving, so that is a plus.”
Passage of an Ought to Pass motion on HB 560 would of course be preferable, and that’s what I’ll ask my senator to support, but re-referral would keep the bill alive and conversation going.
One almost needs a tour guide to follow the course of the two fetal homicide bills under consideration this year. Quick review: HB 560 originated in the House; it’s Rep. Rideout’s bill, nicknamed Griffin’s Law in honor of his grandson; it passed the House and is now in the Senate awaiting action. The other bill originated in the Senate (SB 40). Its original version would have put a fetal homicide law into effect at viability – about which more below – and the House amended it to make it effective eight weeks into pregnancy, which is consistent with HB 560. The Senate passed the original version, and the House recently passed it with amendment, which will send it back to the Senate eventually for concurrence (or non-concurrence) with the amendment.
As introduced, and as the Senate approved it, SB 40 would have created a fetal homicide law that could only be used in the case of the death of a viable fetus, described in the bill as “a fetus that is implanted in a female uterus and has reached such a stage of development as to be capable of sustained extrauterine survival.” The House stripped that out and replaced it with the language of HB 560, “‘fetus’ means an unborn offspring, from the embryo stage which is the end of the eighth week after conception or, in the case of in vitro fertilization, the end of the eighth week after implantation, until birth.”
In all likelihood, neither of the families who testified to legislators this year about the need for a fetal homicide law would have seen assailants charged under the original language of SB 40. In one case, a mother testified that her preborn child, five days away from a scheduled caesarean, drowned in amniotic fluid after sustaining trauma in an auto collision. No “extrauterine survival” there. In the other case, Griffin Donald Kenison was delivered when his seven-months-pregnant mother was injured in another auto collision. Griffin sustained trauma as well and died of his injuries. No “sustained” extrauterine survival.
For that matter, it’s unclear if SB 40 would meet the concerns raised by the New Hampshire Supreme Court in the Lamy case. Dominick Emmons, delivered two months early and whose death was at issue in that case, died after two weeks on life support at a Manchester hospital.
By the way, I note in passing that the New England Journal of Medicine just published research findings about treatment outcomes for infants born between 22 and 24 weeks gestation. (Preview here; full article is behind a paywall.) Seems that viability is to a some extent a function of the medical technology available and the willingness to use it.
SB 40 is on its way back to Senate
While Thursday’s vote is on HB 560, the other fetal homicide bill will need Senate action within a couple of weeks to determine concurrence with the House amendment to SB 40. Thursday’s vote will provide a clue to how SB 40 will be welcomed when it returns to its original chamber.