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.

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.

Why not consult the Court over fetal homicide language?

Rep. Leon Rideout (facebook.com/rideout4rep)

State representative Leon Rideout (R-Lancaster) posted a Facebook update today during the New Hampshire House session:

H[ouse]B[ill]560 ‪#‎FetalHomicide‬ Bill was amended to the language of last years SB40. The ‪#‎NHHouse‬ just voted to not concur with that language. We will go back to work on making ‪#‎NH‬ the 38Th state with a fetal homicide law from the Senate next year ‪#‎Griffinslaw‬

This is a sadly familiar situation. In New Hampshire, a person whose action performed without a pregnant woman’s permission causes the death of the pregnant woman’s preborn child, is not open to a homicide charge in the child’s death. This puts New Hampshire law at variance with the laws of more than three dozen other states that make “fetal homicide” part of the criminal code. Even the federal government has the Unborn Victims of Violence Act, also known as Laci and Conner’s Law, to apply to fetal homicide in certain jurisdictions.

Those laws presume that a woman’s choice to carry a pregnancy to term should get at least as much respect as a woman’s choice to terminate a pregnancy.

The bill number is confusing: the bill voted on today was HB 560. It’s Rep. Rideout’s bill. There was a Senate version last year, SB 40, with a provision making fetal homicide a chargeable crime not until much later in pregnancy. That bill did not pass, but the language was resurrected by the Senate this year and added to HB 560.

The problem with the Senate version, which is where HB 560 is today, is that the law would not apply until the fetus is “viable,” which is defined in the Senate language as “capable of sustained extrauterine survival.”

Who’s to determine whether a preborn child who dies from trauma inflicted by a drunk driver is viable? And what is “sustained” extrauterine survival?

The acid test of any legislative language is the 2009 Lamy decision by the New Hampshire Supreme Court. Lamy overturned the conviction of a drunk driver for causing the death of a preborn child delivered with injuries two months early. The reason: New Hampshire has no fetal homicide law. The child’s mother was seriously injured as well, and the harm caused to her gave rise to a separate criminal conviction against the impaired driver. That conviction was sustained.

So look at little Dominick Emmons, the child whose death was at issue in the Lamy case. Was he “viable” when he was delivered? He had to go straight into neonatal intensive care due not only to his prematurity but also to the injuries he sustained in utero due to the impact of the vehicle collision. He died two weeks after he was delivered. Is that “sustained” survival? Did the injuries render him not “viable”?

Would the current Senate language, with which the House just refused to concur, have allowed the conviction against Joshua Lamy for the death of Dominick Emmons to stand? Not as long as a defense attorney could create reasonable doubt over “viability,” it seems to me, although I hasten to add that I am not an attorney. I say this knowing that some of the Senators favoring the viability language believe sincerely that it would be adequate. Condemning those Senators would be a mistake.

Save the criticism for the Senators who voted against “viability” both last year and this year while failing to propose or accept any other fetal homicide language: all the Democrats plus Republican Nancy Stiles. (See Senate roll call #31 from 2015 and Senate roll call #3 from 2016.)

In view of the importance of having an effective fetal homicide law in place, I fail to understand why neither the House nor the Senate has called upon the New Hampshire Supreme Court for an advisory opinion. “Would the amended language of HB 560 [i.e. the Senate language] have permitted the Court to uphold the conviction of Joshua Lamy for causing the death of Dominick Emmons?”

If the answer is no, that will give the senators something to chew on. Most have expressed great sympathy for the families who have lost children and who are seeking fetal homicide legislation. In view of that sympathy, I expect senators should be eager to find out if their language would actually get the job done.

As I said, I’m not an attorney – but surely there are enough lawyers in the legislature to craft an appropriate inquiry, or else explain why such an inquiry can’t be made.

New Hampshire Constitution, Article 74: “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.”

That looks to my non-attorney eyes as though a simple majority of the House OR of the Senate could request an opinion. How about it, all you Honorables?