Testimony on Fetal Homicide, SB 66 (2017)

Testimony delivered by Shannon McGinley for Cornerstone Action.

Cornerstone Policy Research and its public policy arm, Cornerstone Action, represent New Hampshire residents supporting public policy that strengthens New Hampshire families. Cornerstone continues to support fetal homicide legislation. We consider SB 66 an encouraging start toward a fetal homicide law. New Hampshire is one of very few states that lacks such a law (38 states have such laws on the books), and it has been nearly eight years since the New Hampshire Supreme Court in the Lamy decision pointed out the consequence of not having one.

In that case, the homicide conviction of a drunk driver for the death of little Dominick Emmons was overturned, because the injuries that led to Dominick’s death were sustained while he was still in utero. New Hampshire’s existing homicide statutes do not allow prosecutors to consider a homicide charge in such a case. A fetal homicide law would give prosecutors that option.

Fetal homicide laws vary from state to state regarding the point in pregnancy at which the law may be used. As you’re aware, SB 66 as passed by the Senate calls for a 20-week standard. You have retained HB 156, another fetal homicide bill, which called for an 8-week standard. We are well aware of the impasse that resulted the last time a fetal homicide bill went to a conference committee. We are no more eager than you are to see the same outcome this year. We respectfully suggest that you explore the possibility of asking the New Hampshire Supreme Court under article 74* of the New Hampshire Constitution for an advisory opinion. Would the language of SB 66 address the concerns expressed by the Court in the Lamy case? Would it have permitted the Court to uphold a homicide conviction arising from the death of Dominick Emmons?

We are aware that some of the opposition to fetal homicide legislation has come from groups that consider it to be a threat to women’s’ reproductive rights. We encourage you to reject any such notion. Fetal homicide laws do not apply to any case where the death of the preborn child occurs with the mother’s consent. To claim that a fetal homicide bill threatens women’s rights is a gross insult to the families grieving the loss of a child whose life and death cannot be acknowledged under New Hampshire’s current homicide statutes.

We support SB 66, and we encourage you to turn to the Supreme Court to learn if the language you are considering is adequate to serve the interests of justice. Thank you.

*[Art.] 74. [Judges to Give Opinions, When.] 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.