A Difference of Opinion

[Update: according to a reliable source, an amendment is forthcoming addressing the concern I describe here. Any amendment would need to be approved by committee before being incorporated into the bill. I post further updates as needed.]

Every now and then, I draft a post and then sit on it overnight. That’s usually when I’m really worked up over something. Twelve hours later, do I still feel the same way? If the answer’s Yes, I hit “send.” And so it goes with today’s offering.

I’m troubled by House Bill 1511, which had its hearing in the New Hampshire House Criminal Justice Committee this week. The bill would amend the state’s new fetal homicide law regarding unborn victims of violence. I figured I’d hold off on addressing the bill until I heard the chief sponsor’s testimony, in case I was missing something obvious. Now, I don’t think I am.

HB 1511 would change the fetal homicide law in two ways: change the point in pregnancy at which the law could be invoked, from the current 20 weeks to 8 weeks; and remove the immunity from criminal charges for acts committed by a pregnant woman relative to the fetus.

I have no problem with an 8-weeks provision. I have a big problem with removing the existing law’s language that explicitly exempts maternal acts from prosecution. That would be a substantive change to the law, not a paring of superfluous language.

I wasn’t alone in my concern. Seated next to me at this week’s hearing was Leon Rideout, who played a big role in getting our fetal homicide law passed. The plain language of HB 1511 was enough to prompt him to make the long drive to Concord to warn about removing the maternal exemption.

Fetal homicide statutes are not about personhood, and they convey no rights upon a fetus. Fetal homicide laws are about letting prosecutors bring homicide charges against anyone whose bad action causes the death of a preborn child against the will of the mother. 

Removing that last condition – against the will of the mother – would play into every abortion advocate’s mischaracterization of fetal homicide legislation as a tool to lock women up. (About forty other states have fetal homicide laws, all of them coexisting with legal abortion.)

If I understand the chief sponsor correctly, he believes the explicit maternal exemption in New Hampshire’s law is unnecessary, since such an exemption is implicit elsewhere in the law. I disagree. I’m not a lawyer (and neither is the sponsor of HB 1511), but I can read.

Throughout the years of struggle that culminated in the passage in 2017 of New Hampshire’s fetal homicide law, abortion advocates fought such bills tooth and nail. They claimed that the bills were back-door ways to prosecute women, even when the bills said otherwise.

At the same time, they ignored a 2009 New Hampshire Supreme Court decision that said our state’s failure to have a fetal homicide law forced them to dismiss a homicide charge against a drunk driver whose victims included a child, delivered prematurely, who died of injuries sustained in utero when the drunk driver struck the child’s mother.

Rationality finally prevailed in 2017 when Governor Sununu signed SB 66. The Governor, a self-styled pro-choice politician whose idea of health care includes sending my tax money to abortion providers, recognized that a fetal homicide law had no bearing on abortion. Along with a majority of legislators, he was happy to heed the state Supreme Court’s call to bring New Hampshire’s homicide statutes up to date.

Getting to that point was long and sometimes painful process of negotiation and compromise. One sticking point with SB 66 was deciding at what point in pregnancy the law could be invoked. Elsewhere, some states have fetal homicide laws that apply throughout pregnancy. Some states’ laws go into effect at fetal viability or at a certain number of weeks’ gestation. When the dust settled in Concord last year, 20 weeks was the compromise.

Moving the effective time of New Hampshire’s fetal homicide law from twenty weeks’ fetal gestation to eight weeks, or to any other specified time, would still leave the nature of the law intact.

Removing the explicit maternal exemption would not.

Since this blog was launched, I’ve covered New Hampshire fetal homicide bills closely. Every time I pointed out that a fetal homicide bill would shield women from prosecution, I meant it. I took seriously the clear and explicit maternal-exemption language of HB 217 in 2012 and HB 1503 in 2014 and HB 560 and SB 40 in 2015 and HB 156 and SB 66 in 2017.

That language was an integral part of the fetal homicide legislation signed by Governor Sununu. I don’t see how it can be torn out of the law without gutting the law.

The sponsors of HB 1511 are all experienced legislators whose good will I have no reason to question. On this bill as introduced, though, I flat-out disagree with them.

I’ll be happy to post their responses in the comments, should any of them be inclined to send one.

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