Fetal Homicide and Women’s Rights: Remember These Women

if fetal homicide legislation is going to be cast as a women’s rights issue, the women who lost children and grandchildren belong front and center. Make sure your state reps know about these women, before the June 1 vote on SB 66. No excuses.

I’m not going to link to the mendacious social media posts that have gone up in recent days against the fetal homicide bill whose vote in the New Hampshire House is only a few days away. It’s enough to know that the vote tally must be terribly close, or the opposition wouldn’t be so intense.

The general tone of the opponents is that this is a women’s rights issue; they’re-coming-for-your-uterus. I wish that were a parody, but this is what fetal homicide is up against.

The truth of the matter is that SB 66 would not apply to any fetal death occurring with the mother’s consent (e.g. abortion) or due to any act performed by a health care provider in the course of the provider’s professional duties. But that’s the truth, and as the saying goes, a lie gets halfway around the world before the truth gets its pants on.

It’s time to remember the women whose losses have illuminated the need for fetal homicide legislation in New Hampshire. Think of their rights, their thwarted choices, their children and grandchildren.

What follows is taken from my coverage of fetal homicide bills in New Hampshire since 2012.

Brianna Emmons

The death of Brianna Emmons’s son Dominick in 2006 was at issue in the Lamy case decided by the New Hampshire Supreme Court in 2009.

Joshua Lamy is in prison today and is likely to be there for at least the next four decades. He’s serving time for, among other things, one of the two lives he took when he smashed into a Manchester taxi at over 100 mph in 2006. He successfully appealed his conviction for the second death, arguing that in the eyes of the law, there was no crime because there was no victim.

The taxi driver, Brianna Emmons, was seven months pregnant. Her injuries and the resulting diminished blood flow to her child were severe enough to call for an emergency cesarean. Ms. Emmons named her son Dominick. Two weeks later, he succumbed to “perinatal asphyxia resulting from maternal abdominal trauma” (State of New Hampshire v. Joshua Lamy, 158 N.H. 511). Those two weeks, bracketed by birth and death certificates, weren’t enough to make Dominick Emmons a victim under New Hampshire law.

The New Hampshire Supreme Court, in a unanimous decision written by Justice James Duggan, went by existing New Hampshire law in overturning Lamy’s convictions for manslaughter and negligent homicide in Dominick’s death.   The justices unanimously recognized that existing law was inadequate.

“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.”

In vetoing 2012’s fetal homicide bill, the first attempt to rectify the law that forced the Lamy decision, then-Governor John Lynch falsely claimed that “this legislation … would allow the State of New Hampshire to prosecute a pregnant woman”. The governor missed the plain language of the bill in front of him. In fact, neither 2012’s bill nor the 2017 version (SB 66) would apply to any pregnancy termination caused by any person acting with the consent of the mother.

Ashlyn Rideout

As described by her father, Ashlyn Rideout was 7½ months pregnant in 2013 when she was injured in a motor vehicle collision. In the hours following the collision, Ms. Rideout’s baby son Griffin was delivered via emergency cesarean. Her son did not survive.

Any fault on the part of one of the drivers was irrelevant under law as far as Griffin was concerned. Prosecutors did not even have the option of considering Griffin’s death in determining what, if any, charges to file in connection with the collision.

Since then, I’ve seen Ms. Rideout at hearings on fetal homicide legislation. She’s been quiet, leaving the testimony to others in her family. She’s been waiting, year after year, for passage of a fetal homicide law.

Shirley Ward-Kenison

Griffin’s grandmother, “Grammy Shirley,” pleaded with legislators in 2014. Griffin’s death was her loss, too.  She wanted to make sure the legislators knew that fetal homicide legislation was no transitory cause. “We’re on a crusade,” she said tearfully, with a relative standing next to her displaying photos to the committee. “Our family is on a mission to make sure if a person causes bodily harm or death to an unborn child due to violence or criminal behavior, there will be consequences.”

A few days later, as a House committee voted on the 2014 bill, Nashua Rep. Latha Mangipudi told her colleagues about her concerns with fetal homicide legislation. “It’s very unsettling for me to say, I mean, I see the intent [of the original bill], but we are addressing one aspect of fetus as person. That’s an undue burden. I’m very uncomfortable [with this], as a woman.”

Shirley Kenison-Ward could have swapped notes with the legislator about how uncomfortable a woman can be.

Deana Crucitti

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. 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 baby Griffin’s family: the child simply never existed, under state law.

Deana Crucitti testified on a 2015 New Hampshire fetal homicide bill with her husband Nathan at her side. It’s clear that eleven years have 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.

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In 2017, the House vote on SB 66 is scheduled for June 1. Whether or not SB 66 passes, a similar bill, HB 156, is in “retained” status and must get a House vote before crossover day in March 2018.

House Committee Changes Course on Fetal Homicide

Two weeks after voting to retain SB 66, the New Hampshire House Criminal Justice and Public Safety Committee has reconsidered its decision. Now, the fetal homicide measure will go to the House with a bipartisan committee recommendation of Ought to Pass with Amendment.

SB 66 in its current form would allow prosecutors the option of filing a homicide charge against anyone whose bad actions cause the death of a preborn child at 20 weeks’ gestation or later, if that death occurs against the will of the mother.

The next House session is June 1, and SB 66 will probably get its House vote that day. The message I’ll send my reps before that session is simple: support the committee recommendation on SB 66.

I’ll keep this post short, or at least not-too-long, because I need to get busy sending thank-yous to the twelve committee members who approved the bill. Two of them switched positions since the last go-round.

Notes and observations from the committee session of May 23:

The OTP/A vote was 12-8. The twelve: Reps. David Welch, Frank Sapareto, Dennis Fields, Bob Fesh, John Burt, Dennis Green, Kathleen Hoelzel, Carolyn Matthews, Jody McNally, Dave Testerman, Scott Wallace, and Roger Berube.

Reps. Wallace and Berube voted OTP/A after voting against SB 66 two weeks ago.

Rep. Berube is a Democrat, and he was treated to a snarky remark from a Democratic colleague before a brief party caucus, insinuating that Berube didn’t have to join in. He briskly shot back, “I’ve been a Democrat as long as you have.” And that put an end to snarky remarks uttered within hearing of the public.

Hoelzel and Matthews were sitting in for absent committee members Larry Gagne and Bonnie Ham.

Some Democrats on the committee objected to Rep. Burt’s reconsideration motion, with Rep. Laura Pantelakos saying “I feel very railroaded here today.” Reps. Renny Cushing and Shannon Chandley warned that the reconsideration vote had inadequate public notice. Neither Cushing nor Chandley commented on the fact that the public area of the hearing room was packed, with an overflow crowd trying to listen in from the doorway.

Rep. Cushing, a longtime legislator, said he had “no recollection” of the Criminal Justice committee reconsidering a two-week-old vote. Rep. Berube, another House vet, flatly disputed him, saying there had been reconsiderations on other bills “many a time.”

Rep. Pantelakos has always viewed fetal homicide legislation through the lens of abortion advocacy. She unsuccessfully attempted during the May 23 committee session to amend SB 66 into a be-kind-to-pregnant-ladies bill: enhanced penalties for killing a pregnant woman. “I’ve always wanted to find something to do for these people,” she said, using “these people” as a reference to families like the Crucittis and the Kenisons. Had Pantelakos’s amendment been adopted, her “something to do for these people” wouldn’t have applied to any assailant who killed a child but left the mother alive.

There is still a second fetal homicide bill, HB 156,  in the same committee under “retained” status. Before the May 23rd debate on SB 66, Chairman Welch  announced the names of the reps who will serve on a subcommittee to study HB 156: Chandley, Gagne, Burt, Ham, Sapareto. Rep. Pantelakos raised her hand and asked to be added. Welch agreed. HB 156 has an 8-week provision compared to SB 66’s 20-weeks, referring to the point in pregnancy at which the law might apply. As a retained bill, HB 156 won’t come before the full House until 2018.

Unmentioned by committee members on May 23, except for one oblique reference to “these people”: Griffin Kenison, Sara Crucitti, Dominick Emmons. Unmentioned: the Lamy case, which underscored the need for New Hampshire to join the dozens of other states that have fetal homicide laws. Unmentioned: the option of seeking an advisory opinion from the New Hampshire Supreme Court about the text of a fetal homicide bill.

But the committee did get around to OK’ing SB 66. That’s good enough for one day.

Bipartisan error: House committee rejects fetal homicide bill, then sets it aside

Rep. John Burt of the New Hampshire House Criminal Justice committee reported from the State House today that the committee “retained” SB 66, joining HB 156 in the pile of bills kicked aside for a vote in 2018.

Before the vote to retain, Burt moved “ought to pass with amendment” on SB 66. His motion failed, 10-11. Two Republicans, Carolyn Gargasz of Hollis and Scott Wallace of Danville, joined the committee’s Democrats in opposing the “ought to pass” motion.

Rep. Wallace is a first-term representative. Rep. Gargasz is serving her 9th term.

The bill, whose chief sponsor was Sen. Regina Birdsell, had passed the Senate 14-10 before moving to the House.

What does “retain” mean?

The immediate effect is to prevent the bill from coming to a House vote this year, giving the committee (or a subcommittee named by the chairman) time to look at the bill and study it some more. A House vote will come in 2018.

In practice, a vote to retain means whatever the committee wants to mean. The “study” could be serious or it could be a joke.  A subcommittee might meet once, or not. The intention might be to strengthen the bill or it might be to shove the bill under the rug.

Post-study, the committee will then take vote later this year – possibly as late as late fall – to recommend Ought to Pass or Inexpedient to Legislate for House action in January 2018.

Note that both of this year’s fetal homicide bills were retained. It is likely that a study, if seriously undertaken, would look at both bills at the same time.

Another missed opportunity

This is the fourth full legislative biennium since the New Hampshire Supreme Court’s 2009 Lamy decision. In 2012, a fetal homicide bill actually made it to Governor Lynch’s desk, where he vetoed it. An override attempt failed.

So far, that’s the high-water mark for fetal homicide legislation in New Hampshire.

This is the fourth legislative biennium when House and Senate have refused to ask the state Supreme Court for an advisory opinion on a fetal homicide bill. Whether leadership has been Democrat or Republican, all have failed to seek that opinion.

Governor Sununu announced before last year’s election that he would support a fetal homicide bill.  It remains to be seen whether that support will extend to reaching out to legislators studying the retained bills.

The Crucitti family may have to keep telling the story of their daughter. The Kenisons may have to keep speaking out about Griffin.

All the while, the Lamy decision rests in dusty pages and a seldom-used URL, after it served to overturn a conviction of a drunk driver who injured a pregnant woman, prompted cesarean delivery of her child, and left that child with injuries that caused his death two weeks later.

The Justice who wrote the decision noted that the current state of New Hampshire law left the court with no other choice. “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.”

Since 2009, one legislator after another has decided no, I don’t find the outcome as unfortunate as the Justices did. Eleven of those legislators prevailed today.

Bill status update

Update on bills I’ve been following:

Buffer zone repeal (HB 589) and a post-viability abortion ban (HB 578): The House Judiciary Committee will vote on these two bills Tuesday afternoon, February 14. The committee can recommend Ought to Pass (and I hope they do), or Inexpedient to Legislate. The committee recommendation will then go to the full House at a later date. You can send a brief Ought to Pass email – better yet, two emails, one for each bill – to the Judiciary Committee at HouseJudiciaryCommittee@leg.state.nh.gov.

I plan to attend the committee meeting on the 14th. Keep an eye on the Leaven for the Loaf Facebook page, where I’ll report on the votes as soon as they’re cast.

Fetal homicide: The House bill (HB 156, Griffin’s Law) had its public hearing in the Criminal Justice committee on February 7, and the committee has taken no public action since then. The Senate bill (SB 66) will get a vote in the full Senate Thursday, February 16.

Abortion statistics (HB 471), which had a public hearing February 7, is still awaiting action in the House Health Human Services and Elderly Affairs Committee.

A reminder of what happens without a fetal homicide law

As House Bill 156 gets its initial hearing this week before the New Hampshire House Criminal Justice and Public Safety Committee, bear in mind why this and other attempts at fetal homicide legislation keep coming back.

Don’t bother to tell me I’m repeating myself. I’m going to keep right on repeating myself until New Hampshire adopts a fetal homicide law.

Read the Lamy decision handed down by the New Hampshire Supreme Court in 2009, particularly pages 9 and 10. It’s about real people, real death, real loss, real injustice.

Joshua Lamy is in prison now, serving time for a number of convictions arising from smashing his car into a Manchester taxi at over 100 miles per hour in 2006. He appealed one conviction, for causing the death of a child in utero, successfully arguing that in the eyes of New Hampshire law, there could be no crime because there was no victim.

The taxi driver, Brianna Emmons, was seven months pregnant. Her injuries were severe enough to call for an emergency cesarean. She named her baby Dominick. Two weeks later, he succumbed to “perinatal asphyxia resulting from maternal abdominal trauma” (State of New Hampshire v. Joshua Lamy,  158 N.H. 511).  Those two weeks weren’t enough to make Dominick Emmons a victim under New Hampshire law. The Supreme Court Justices reluctantly recognized that fact.

The Court’s decision, written by Justice James Duggan,  was unanimous. Duggan frankly acknowledged that existing law left the Court with no other choice than to overturn the homicide conviction regarding the baby: “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.”

That was eight years ago. House and Senate agreed on a bill in 2012, only to see Governor Lynch veto it. Override failed narrowly. More recent attempts have foundered over differences between House and Senate bills.

Ponder the fact that ACLU-NH has called for its supporters to show up in force to oppose HB 156. Abortion advocates in New Hampshire have never been able to stomach fetal homicide bills, even though the bills would not apply to any fetal death caused with the consent of the mother.

The ACLU has nothing to worry about if the pro-life supporters of HB 156 snipe at the pro-life supporters of the Senate’s version. Senate Bill 66 would go into effect at a much later gestational age (8 weeks in the House version, viability in the Senate). Yes, the House version is preferable.

But calling into question the good will of the supporters of the Senate bill serves only to give aid and comfort to people who want to make sure the next hundred-mile-an-hour driver who hits a pregnant woman and causes the death of her child gets a pass for the child’s death.

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Attend the February 7 hearing on HB 156 if you’re so inclined: 2:30 p.m., House Criminal Justice committee, room 204 in the Legislative Office Building. You can register your support by signing the sheet on the committee table and indicating “For the bill.” If you wish to testify, fill out a pink card, available on the committee table.