HB 217-FN: Protecting the life of an unborn child

Cornerstone Action represents approximately 6000 members in New Hampshire. On their behalf, I am here today to support HB 217-FN and to express my thanks to the bill’s sponsors. New Hampshire is overdue for a law that treats as homicide the killing of an unborn child against the mother’s wishes.

In the course of your deliberations, you will no doubt be asked to review the 2009 case State of New Hampshire v. Joshua Lamy (158 N.H. 511). In 2006, while driving a car in Manchester at over 100 m.p.h., Lamy struck a taxi driven by a woman who was seven months pregnant. The baby, delivered surgically after the collision, died after two weeks on life support at a local hospital. Lamy was convicted of a number of crimes related to the collision, including manslaughter and negligent homicide in the death of the baby. Lamy appealed and was successful in overturning the convictions for the baby’s death, arguing that the baby was not “born alive” and therefore not a victim of any crime.

In their decision, the justices of the NH Supreme Court wrote, “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.”

The New Hampshire judiciary, clearly respecting the separation of powers among the branches of government, has thus asked you as legislators to give them the tools they need to administer justice. Do so, without further delay. Thirty-six states treat the killing of an unborn child as a form of homicide (list attached), so you would not be venturing into uncharted territory.

Note that the bill explicitly does not apply to abortions induced at the mother’s request. Anyone concerned with the bill’s implications for Roe v. Wade need only read the bill’s text.  Thirty-six states have similar laws and Roe is still the law of the land.

In fact, HB 217 as written hinges on a woman’s right to choose. A woman who chooses to terminate a pregnancy has a clear right to do so, in the opinion of the U.S. Supreme Court. A woman who chooses to carry a pregnancy to term should see her choice given at least as much respect. If another person takes actions against the mother’s will, resulting in the involuntary termination of the pregnancy, there are two victims to the act: mother and child. Ask the mother who lost her child at the hands of Joshua Lamy.

It is true that a woman may have a cause for civil action against a person who causes the death of her unborn child. There is a fundamental difference between criminal and civil law, however, which a civil suit cannot overcome: civil actions are between individuals or entities, answering to each other. Criminal prosecutions, on the other hand, are between a defendant and the community. The existence of a criminal case says that a person’s actions are so repugnant and so damaging to the public good that the entire community, in the person of the state or local prosecutor, has the right to demand account and administer punishment.

We would like to see a severability clause in the bill. A court’s rejection of a definition or of the inclusion of a level of homicide in a list of permissible charges should not render the whole law invalid. Also, unless barred by another New Hampshire law, the bill would  be improved by adding a clause giving a right of intervention to co-sponsors of the bill, allowing them to intervene as a matter of right in any case in which the constitutionality of the law is challenged

In 2004, Congress enacted what came to be known as “Laci and Conner’s Law,” which allows the federal government to charge an assailant in the death of an unborn child when the death occurs on federal property or stems from the commission of another federal crime. Sharon Rocha, mother and grandmother of the people for whom the law was named, said that without laws on fetal homicide, legislators are telling grieving families that “innocent victims are not really victims – indeed that they never existed at all.”

Only you, our legislators, can respond effectively to the N.H. Supreme Court’s reminder in Lamy that other states have taken the lead in recognizing that there are two victims when a pregnant woman is assaulted or injured and her baby dies. You can recognize and honor both victims with passage of HB 217.

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To: House Committee on Criminal Justice and Public Safety
From: Ellen Kolb, Legislative Policy Director, Cornerstone Action
Re: HB 217-FN
Date: 2/17/11


Map of states with status of fetal homicide laws
State of New Hampshire v. Joshua Lamy

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