BENNINGTON -- An abortion debate cannot be avoided if legislation dealing with fetal homicide is taken up by the Legislature, according to a legal scholar.
‘Compromise’ bill
"I think, fundamentally, [Sen.] Dick Sears’ bill is sort of a compromise bill," Vermont Law School Professor Cheryl Hanna said. "Unfortunately, by introducing the bill, it forces the [abortion] debate."
Meanwhile, lawyers who typically represent clients on opposing sides of the law also disagree on the need and legal soundness of the legislation.
Sears, D-Bennington, chairman of the Senate Judiciary Committee, said he drafted legislation that deals with crimes committed against pregnant women to help a constituent, but was hoping to avoid a bitter abortion debate.
His bill adds up to 10 years of prison time and up to $5,000 in fines to the penalties of three existing charges -- aggravated assault, gross negligent vehicle operation and operating a vehicle under the influence of alcohol or drugs -- if those crimes are committed against a pregnant woman and a fetus or fetuses are harmed or terminated because of the crime.
Patricia Blair, 38, was six months pregnant when she lost her twin, unborn babies as a result of an August crash. Police have said the crash was caused by a 22-year-old woman under the influence of prescription drugs, but the case is still pending in Bennington District Court.
Blair said she became despondent after learning the
Vermont does not have a fetal homicide law, and a fetus is not considered a person under criminal statutes in Vermont, according to a 1989 Vermont Supreme Court case, Hanna said.
Blair, who asked Sears to help her, now says the bill doesn’t achieve what she is looking for -- a bill that recognizes her unborn babies as two lives that were taken and creates a separate crime for it.
But a bill that grants "fetal rights" or recognizes a fetus as a person, as Blair is seeking, would be certain to face extreme opposition in Vermont, Hanna said.
"I think this is one of the more pro-choice Legislatures in the country and would face a great deal of opposition from constituents over fear of how this plays out with abortion," she said.
It’s unclear how Republican Gov. James Douglas feels about the legislation. His office did not respond to several requests for comment.
Although Sears’ bill does not create a separate crime or grant fetal rights, it’s enough to make pro-choice groups like Planned Parenthood of Northern New England uneasy. It begins to merge into a "gray area," Hanna said.
"Even though it doesn’t explicitly grant fetal rights, it does start to merge into that area," she said.
Hanna said pro-life groups like Vermont Right to Life, are looking to secure some form of fetal homicide bill in all 50 states. Securing such laws could provide more traction for pushing for fetal rights in the future, she said.
"The strategy from the Right to Life movement has been to have states pass laws which recognize the rights of fetuses," she said. "I think even a statute like this is at least some ammunition for Vermont Right to Life."
Sears’ bill is likely to receive a chilly reception among lawmakers, Hanna said. The Legislature "has struggled to deal with hot-button social issues" in the past, she said, and lawmakers are facing an election next November.
"I just don’t think people want to do that," she said.
But Blair’s compelling story could force their hand, she said.
"What’s going to move the Legislature this time around is going to be public opinion and public sentiment. You’ve got this terribly compelling case, and often it just takes one case to move legislation," Hanna said.
‘Unnecessary’ legislation
David F. Silver, a Bennington-based defense attorney, said Sears’ legislation is unnecessary and unfair.
"I think it’s a given that Sen. Sears and whoever else supports this is doing so with the best of intentions, but it’s clear that this is done in reaction to one bad case. It’s always a very bad idea to make a law in reaction to one very bad situation," Silver said. "What we need ... from our political leadership is calm, measured reaction."
Silver said his biggest issue with Sears’ legislation is that it allows for greater penalties to be imposed without any regard for a person’s intent.
According to Silver, one of the "inherent principals of our whole justice system" is to punish people for conduct that is "morally blameworthy" and when they "intended to do something wrong," he said.
"The problem with this law is that it enhances the punishment for a crime without any intent," Silver said. "You punish someone based on their level of moral culpability. We don’t punish based on results, we punish based on intent or their level of thoughtlessness."
In addition, causing damage to a fetus or causing the termination of a fetus is already accounted for in statutes under "serious bodily damage," Silver said.
He also questioned why a woman who knowingly and intentionally smokes cigarettes or uses drugs while pregnant is less culpable than a person who crashes into a pregnant woman without meaning to.
"Why would that person be any less guilty of damage to her pregnancy or to the fetus than somebody who causes a car crash and doesn’t know who is in it," Silver said.
Bennington County State’s Attorney Erica Marthage said she is supportive of the bill. There are sentence enhancements already in place for crimes committed against other groups such as law enforcement personnel, she said.
No mention of intent in the bill is not an issue, Marthage said, because the underlying motor vehicle charges included in Sears’ bill do not require intent.
Marthage said she would like to see that bill expand to include domestic charges, as well.
Marthage, who said she considers herself to be pro-choice, said she is glad Sears’ bill does not address fetal rights. She said that gets into "the social aspect of things that are not really my realm" as a prosecutor.
"What I like the way he did it was ... we’re not even going down that road where a fetus is being given some separate legal status," she said.
Contact Neal P. Goswami at ngoswami@benningtonbanner.com
Font Resize
| 