Impasse for now: no NH fetal homicide law this year

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”

Rep. John Tholl
Rep. John Tholl

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.

Conference committee

Rep. Leon Rideout
Rep. Leon Rideout

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.”

Sen. Regina Birdsell
Sen. Regina Birdsell

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.

NH House passes 2nd fetal homicide bill; back to Senate

The New Hampshire House on Wednesday passed Senate Bill 40, the fetal homicide bill introduced by Senator Regina Birdsell (R-Hampstead). The House voted to amend the measure to match the language of HB 560, Griffin’s Law, introduced by Rep. Leon Rideout (R-Lancaster). With today’s amendment, both bills would make a fetal homicide charge possible against anyone causing the death of a preborn child against the mother’s will more than eight weeks into pregnancy.

House committees have heard testimony this year from two families who are fighting for the legislation. In his floor speech today on SB 40, Rep. Rideout reminded his colleagues that the New Hampshire Supreme Court six years ago encouraged legislators to revisit the state’s homicide laws as they pertain to a fetus, and he added that thirty-eight other states have already dropped the circa-15th-century “born-alive rule” in favor of fetal homicide statutes.

 Rep. Rideout later issued a statement via the House Republican Majority Caucus: “Bills such as this one have been on the books for years in other states across the nation beginning the early 1970’s in California. Our laws are long outdated in protecting unborn children, and this bill brings us into the 21st century for protecting all of our citizens. The faulty claims from the left have zero foundation in truth. keeping our laws antiquated and violating the 14th amendment of equal protection for all people is unacceptable With all the new technology we have developed during the past 30 years to understand the life cycle of a preborn child, it’s about time we started protecting them and providing justice for the families of New Hampshire’s most innocent victims.”


Status of the two bills: The Senate has them both. SB 40 must go back to the full Senate for concurrence with the House amendment. HB 560 remains for now in the Senate Judiciary Committee. Action is likely soon, but has not yet been scheduled.

In search of a supermajority: Governor Hassan has been quiet about this year’s fetal homicide bills. If she were to veto the legislation, a two-thirds vote in both chambers would be required to override. Support has not been at that level thus far in 2015.

How the Senate looks: The original version of SB 40, which would have gone into effect at viability (and which contained an odd definition of the term), passed on a 13-11 vote. Republican Nancy Stiles (R-Hampton) joined all Senate Democrats in opposing the bill. Concurrence with the House amendment would require a simple majority.

The numbers in the House: Today’s vote on SB 40 (ought to pass as amended) was 193-159, or 54.8%-45.2%. That compares to 208-155 for HB 560 in the same House two months ago. A few observations:

  • Eleven representatives supported HB 560 but changed their minds on SB 40 as amended today. Five are Democrats: Raymond Gagnon (Sullivan 5), Christopher Herbert (Hillsborough 43), Dick Patten (Merrimack 17), Timothy Smith (Hillsborough 17), and Benjamin Tilton (Cheshire 12). Six are Republicans: Stephen Darrow (Grafton 17), Susan Emerson (Cheshire 11), James Grenier (Sullivan 7), Douglas Long (Merrimack 4), Richard Marple (Merrimack 24), and Gregory Smith (Hillsborough 37).
  • On the other hand, three reps supported SB 40 as amended today after voting against HB 560: Republican Edmond Gionet (Grafton 5), Democrat Audrey Stevens (Strafford 7), and Democrat Deborah Wheeler (Merrimack 3).
  • In general, Republicans supported the bill and Democrats opposed it, as has been the case with every fetal homicide bill over the past twenty years in New Hampshire. Five Democrats voted for SB 40 today: Daniel Hansberry (Hills 35; did not vote on 560); Jean Jeudy (Hills 10; did not vote on 560), Audrey Stevens (see above), Robert Theberge (Coos 3; supports both bills), and Deborah Wheeler (see above). Nineteen Republicans opposed the bill, as did the House’s lone independent (David Luneau, Merrimack 10).
  • Today’s vote tally included 45 absences, most of them excused.

Senate fetal homicide bill: notes on a hearing

Today, the New Hampshire Senate’s version of a fetal homicide bill, SB 40, had its hearing at the House Criminal Justice committee. I was only able to stay for the first half-hour, which was enough for me to hear Rep. Geoffrey Hirsch ask sponsor Regina Birdsell, “Isn’t this supported by groups that want to establish personhood?”

The gentleman from Bradford is apparently worried that fetal homicide legislation is a backdoor way to get personhood into the books. Wait – haven’t we been there before? Oh, yes – same committee, four weeks ago, minority worrying about Roe. Someone is actually worried that those sneaky pro-lifers are going to take a bill that refers to wanted pregnancies terminated by the bad actions of a third party (not the mother, whose decisions are absolutely respected under fetal homicide laws), and pervert it into a bill to prosecute women who choose to terminate their unwanted pregnancies.

Senator Birdsell, an even-tempered woman not given to sharp retorts, answered that fetal homicide is not a pro-life/pro-choice issue. She urged the representative that instead of being concerned about groups, he should listen to Deana Crucitti.

She could have said, “C’mon, people – FOCUS!” She has far too much respect for her colleagues and for the institutions of House and Senate to resort to that. It was left to me to mutter the words under my breath – quietly enough, I hope.


 

With two fetal homicide bills under consideration, there will have to be reconciliation at some point. Rep. Leon Rideout, sponsor of Griffin’s Law (HB 560) in the House, testified in favor of SB 40 today. “Knowing Senator Birdsell, I think we can work together and make a very good bill.” SB 40 would go into effect at viability, while HB 560 would be effective eight weeks into pregnancy. Rideout doesn’t like the viability language, but in reply to a question from a committee member, he said he doesn’t think viability “guts” a fetal homicide bill. “It’s a step in the right direction.”

To the suggestion that fetal homicide laws undermine abortion rights, Rideout had a blunt reply. “Calling this pro-life versus pro-choice is BS.” Yes, he abbreviated it. He observed decorum and he made his point.


The Crucitti family was present, and I’m sorry I missed their testimony. I heard Deana Crucitti testify on SB 40 at its Senate hearing a few weeks back, and her story is searing.

Rideout brought three photos of Griffin, his grandson born prematurely but unable to survive for long due to injuries sustained in utero when the car his mother was driving was struck by another vehicle. He put those framed photos on the table in front of him as he testified. “This is the context of what we are talking about today.”

When he returned to his seat, Deana Crucitti quietly asked to see the photos. She looked at them one by one, shook her head gently, and embraced Rep. Rideout as she returned the pictures.


 

An ugly story out of Colorado is in the news: a pregnant woman was assaulted and overpowered by someone who proceeded to cut the preborn child out of the woman’s body. Colorado has no fetal homicide law. There can be no criminal charge in the child’s death, although the assailant will certainly face charges in the assault on the woman.

Yes, that came up in today’s hearing. It will no doubt be mentioned again later this week when Rep. Rideout’s bill has another hearing.


Senate fetal homicide bill brings out a family’s devastating loss

With Griffin’s Law under consideration in the New Hampshire House, the state Senate is looking at a fetal homicide bill of its own. Senator Regina Birdsell (R-Hampstead) introduced Senate Bill 40 this morning to the Senate Judiciary Committee.

Sen. Regina Birdsell (photo: reginabirdsell.com)
Sen. Regina Birdsell (photo: reginabirdsell.com)

The two bills would both allow criminal prosecution for causing the death of a fetus against the mother’s will. SB 40 differs from Griffin’s Law (HB 560) in that it would become effective later in pregnancy, at viability. Former Senator Bob Letourneau of Derry returned his old committee today to support Birdsell’s bill and to introduce the parents of a child whose death was ignored under state law, as was the death of Griffin Kenison.

Deana Crucitti was at full term with a little girl in early 2004 – only a few days away from a planned cesarean delivery. The car she was driving was hit head-on. Mrs. Crucitti sustained serious injuries, and the impact of the collision ruptured the amniotic sac around her baby. Despite valiant medical efforts, the baby did not survive.

Charge against the driver whose car struck Mrs. Crucitti’s: vehicular assault, for injuries inflicted on Mrs. Crucitti and her preschool-age son. No charge was possible for the baby’s death. As Sen. Leon Rideout explained in detail to the House Criminal Justice committee at the recent hearing on HB 560, New Hampshire uses the centuries-old “born-alive” rule in determining whether a child has been killed by another’s action.

Without a fetal homicide law, the Crucittis got the same shock as Griffin Kenison’s family: the child simply never existed, under state law.

Deana Crucitti testified today with her husband Nathan at her side. It’s clear that eleven years has not dulled the pain of their daughter’s death. They brought with them a photo of their daughter as she looked after her emergency delivery at a hospital shortly after the collision. Their little girl would have survived except for the trauma inflicted by the collision.

The committee chairman, Sen. Sharon Carson (R-Londonderry) spoke for all her colleagues in expressing condolences to the Crucittis. Committee members found nothing to question or challenge in Mrs. Crucitti’s testimony.

As with Griffin’s Law, the New Hampshire chapter of the American Civil Liberties Union registered its objections against SB 40. Despite clear language in the bill, despite the fact that SB 40 would come into effect later in pregnancy than HB 560, ACLU still maintains that fetal homicide laws threaten women’s rights. Devon Chaffee, ACLU-NH executive director, pressed instead for enhanced penalties for crimes against pregnant women. Nothing for the baby’s death by itself, though; such legislation, in her words, “threatens to erode women’s rights.”

Senators Birdsell and Letourneau, both testifying before ACLU was called, addressed that concern. “I don’t want to see this piece of legislation as a pro-choice/pro-life issue,” said Birdsell. “Progressive states have passed these laws. We specifically chose the language to protect the woman as much as possible.” Letourneau concurred. “This is not a pro-life bill. This is not a pro-choice bill. This is a women’s bill.”

No date for a committee vote has been set.

 

 

Regina Birdsell, NH State Senate District 19

Regina Birdsell, candidate for NH state senate (photo: reginabirdsell.com)
Regina Birdsell, candidate for NH state senate (photo: reginabirdsell.com)

Derry, Windham and Hampstead are electing a new state senator next month. On the ballot are Democrat Kristi St. Laurent – local Dem town committee chair, planning board member, owner of a Facebook page nearly issue-free except to say she likes teachers’ unions and dislikes right-to-work – and Republican Regina Birdsell. Regina’s a two-term state rep from Hampstead. I’ve seen her in action at the State House. I hope she gets to come back as a senator.

A few things you ought to know about Regina:

  • She supported the language of Griffin’s Law as it was introduced – a genuine fetal homicide bill.
  • She voted against the buffer zone and its attempt to nullify the First Amendment
  • She voted yes on parental notification, yes on the partial-birth abortion ban, yes on death penalty repeal.

Her opponent? No record on “buffering” the First Amendment, parental involvement, or late-term abortion.

Regina’s campaign web site: http://reginabirdsell.com/