BENNINGTON -- A showdown may be looming over fetal homicide laws, as a group pushing to criminalize the killing of the unborn is again preparing to introduce legislation at the Statehouse.
A motor vehicle crash in Bennington this month resulting in the death of twin 6-month fetuses highlighted the issue. Patricia Blair, the mother of the fetuses, said she wanted the crash to be investigated as a double fatality.
But criminal charges against the other driver will not include the death of her unborn children because of precedent set by the Vermont Supreme Court in State vs. Oliver, a 1989 case in Addison County. The court found that a viable fetus is not considered a person for purposes of criminal statute.
In State vs. Oliver, the defendant was charged with the death of a fetus in a car crash. But the defendant successfully argued that statute calls for the death of a person, and that a fetus did not qualify. The court agreed.
Mary Hahn Beerworth, executive director of the Vermont Right to Life Committee, said the pro-life organization will again seek a fetal homicide law during the legislative session that begins in January. The group has sought legislation several times in the past but has been "rebuffed at every turn," she said.
VRL has already identified lawmakers willing to sponsor fetal homicide legislation, Hahn Beerworth said. "There’s probably a good 25 who completely understand the concept here and would be ready to sign on," she said.
The issue could pick up more traction if Blair were to get personally involved, Hahn Beerworth said. However, VRL "won’t make a head-on approach," she said. "If they reach out to us we are willing to help."
Blair said she is not generally politically active, but intends to get involved with the issue of fetal homicide laws.
Hahn Beerworth said VRL has tried to seek common ground in passing a fetal homicide law, but the state’s "pro-abortion Legislature" has been unwilling to take up the issue.
Sen. Dick Sears, D-Bennington, chairman of the Senate Judiciary Committee, said last week he is willing to examine existing laws in Vermont and other states. And Republican Gov. James Douglas has said the Legislature should look into strengthening the state’s laws. The governor has so far declined to offer his own opinion on whether Vermont should have a fetal homicide law.
Currently, 36 states across the country have fetal homicide laws on the books, as does the federal government. But they vary greatly as to what charges apply to the death of a fetus.
In Maine, the Protect Unborn Children from Acts of Violence Act defines violent crimes against an unborn child, and has penalties consistent with the same offenses committed against a person, according to the National Conference of State Legislatures.
Massachusetts does not have a law passed by its legislature, but rulings in two court cases have set precedent. In Commonwealth vs. Lawrence, a conviction for the murder of a woman and involuntary manslaughter of a 27-week-old fetus was affirmed. And in State vs. Cass, a viable fetus was found to be within the scope of the term "person" in the state’s vehicular manslaughter statute.
The Vermont Legislature has had since the late 1980s to pass laws that protect mothers and their unborn, Hahn Beerworth said. But lawmakers are "heavily in Planned Parenthood’s court."
Now Blair has lost her babies and still has no criminal recourse, Hahn Beerworth said. "We’ve always had these cases out there. A terrible tragedy was going to happen, and it has," she said.
Planned Parenthood has traditionally opposed fetal homicide laws. But Nancy Mosher, president and CEO of Planned Parenthood of Northern New England, declined to comment specifically aboutthe effects of last week’s crash.
"We just don’t feel there’s enough information to respond to," Mosher said. "We are sad about this event. Our hearts go out to the family."
Mosher said PPNNE would respond if legislation seeking a fetal homicide law is introduced. The group’s response will depend on what the legislation contains, she said. In the meantime, PPNNE does not want to be "drawn into a polarizing fight."
Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said Vermont lawmakers have addressed the issued. He said the Legislature changed the statute dealing with gross negligent operation of a vehicle following State vs. Oliver to include bodily injury, not just death. He said that change allows a driver to face a criminal charge with equal penalties.
"People need to remember that criminal statutes ... aren’t meant to provide recompense for loss and suffering. That’s where civil action comes in," Gilbert said.
Reopening a discussion about a fetal homicide law will be "very difficult, very political and very emotional," Gilbert said.
"I think, in the end, the discussion is not going to be about the issue; it’s going to slide into a discussion on women’s reproductive choices," he said. "It just seems so totally unnecessary given the changes that were made 20 years ago."
Mosher said she also thinks a productive and civil discussion is unlikely. "I hope that Vermont might be a state where that could happen. I haven’t seen a lot of states manage to do that," she said.
Hahn Beerworth insists that VRL is not "looking for an abortion fight." The idea, rather, is to provide women with the "recognition that that was a child."
"We know that women need to have that," she said.
Hahn Beerworth insists a fetal homicide law will not undermine established laws that allow for abortions. And debate over fetal homicide laws should be separate from debate about abortion. Other states have managed to criminalize the death of a fetus without upsetting existing abortion laws, she said.
"It has absolutely no impact on abortion laws," Hahn Beerworth said. "Abortion is not listed. Abortion does not pertain."
Acts such as murder, manslaughter and vehicular homicide have been defined to include the death of a fetus, she said. "Nobody has taken these laws and said, ‘this is a stepping stone to overturning abortion laws,’" Hahn Beerworth said. "I think it’s really clear and I think the other side knows it. We’re not walking into the statehouse demanding that Roe vs. Wade be overturned. That would be ludicrous."
Contact Neal P. Goswami at firstname.lastname@example.org