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.
Review
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.
“Viability”
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.
Leaven for the Loaf 
[This comment was made to an unrelated post on May 29, 2015. I have copied and replied to it here because it concerns efforts to pass Griffin’s Law. – EGK]
from: Sarah
May 29, 2015 at 10:28 pm
You call yourself a Granite Stater but don’t enjoy the number one reason why NH is so great…our motto is Live Free or Die. You post this article like you know the story but have you heard the “offending” drivers side? No because not one reporter bothered to ask for it. What has his family been thru? Was he even at fault? With daddy being a state rep he sure was able to cover up alot…and then you people still support him as a state rep. The family the Rideouts talk about has had enough of you people posting these one sided stories. Ask me personally if you want the truth.
Sarah, I’ve posted your message exactly as you sent it because I want people to see it.
I am certain the driver and his family have suffered from the collision. That’s one reason I haven’t used his name in any of my posts, even though I found it in a news account. I have never heard his name mentioned by anyone at the hearings on fetal homicide bills. I have five children, and I can imagine how I’d feel if any of them had been driving that day. If a fetal homicide law had been in place, it’s entirely possible it wouldn’t have been used against your relative; that would have been a decision by the county attorney, who answers to the voters and not to the state reps. Under current law, however, that option isn’t available to a prosecutor in any county under any circumstances.
The story I know is that the Supreme Court tried in 2009 to move the legislature to pass a fetal homicide law, after the court had to overturn Joshua Lamy’s conviction for causing the death of Dominick Emmons. (Other convictions arising from the same incident will keep Lamy in jail for many years to come.) Twice since then, the legislature has refused to heed the Court.
This isn’t something new. I’ve been an advocate for this kind of law since the early 1990s, when Joan Ellis and her unborn child Julianne were killed on the Seacoast. I’ll keep working to give prosecutors the option of filing fetal homicide charges. No one – no state rep, and certainly not I – could ever force a prosecutor to use such a charge.
There’s no “you people” involved in this blog. It’s just me. No Coos County rep comes to me for support. Most of them have never heard of me. I didn’t meet Rep. Rideout until late 2013 when he filed his intent to sponsor a fetal homicide law. I keep my eyes open for bills like that.
If you want to argue for or against either of the fetal homicide bills now under consideration in Concord, you can submit a comment here and I will consider posting it. If you want to refer me to a news story (even a short one) about the disposition of your relative’s case, please do so and I’ll post a link to it. This is a personal blog and I make my opinions clear, but where you see errors of fact, let me know.
I recognize that the collision involving your relative (I wish I knew the relationship, so I could use a more personal reference) must have made for a terrible day for both drivers and their families. I’m not looking for any closed case to be re-opened, including the one involving Griffin. What I want is what the state Supreme Court has recommended: for prosecutors to have the option in FUTURE cases to bring a fetal homicide charge where one is appropriate.