Saga of SB66

There might not be a lot in the way of rail travel in New Hampshire, but you can still get railroaded, which is exactly what happened in the Criminal Justice and Public Safety Committee of the NH House of Representatives during the 2017 session.

The issue before us was a proposal to ascribe “personhood” to a fetus in order to create two criminal offenses when the death of a pregnant woman occurs through the hands of another.  Everyone agrees that an assault on a pregnant woman resulting in death is an egregious crime and deserving of serious punishment. The question is what approach to take.

One approach is to institute an enhanced sentence for an individual responsible for the death. For instance, instead of a 7-15 year sentence, the sentence could be extended by another 15 years if the woman was pregnant at the time of her death. Another approach is the one that seeks to bring two crimes to court, the death of the woman and the death of the fetus. Although fraught with significant problems, this was the approach that was taken by SB66. In focusing on the personhood of the fetus, the bill before the committee was, simply put, bad legislation.

The essential problem is that instead of using this law to punish a person who causes the death of a pregnant woman, the law has been used to set up  conflict between the woman and the fetus. In the states with nearly identical bills, pregnant women have been arrested because a judge or person in law enforcement determined that the would-be mother was a hazard to her baby.  The National Women’s Law Center reported that “At least one court has stated that a woman could be held criminally liable for a stillbirth if she does anything that could harm her pregnancy, including the use of both legal and illegal substances, missing prenatal appointments and not obtaining ‘adequate’ health care.”  One must remember that these are planned pregnancies by women who want these babies.

Incarcerated women have been held in jail beyond their sentences not because of any additional crime they committed but because they were pregnant. In Maine, a judge made sure that a pregnant woman, convicted of a crime, was held in jail until the end of  her pregnancy, even though defense council and the prosecutor recommended she be sentenced only to time served. The judge in the case felt it was his duty to “protect the public from further crimes of the defendant and that public…should likely include the child she’s carrying.”

In the most egregious case I have read about, a woman in Florida, who wanted to have a vaginal birth, was denied the option by the hospital, because of a previous cesarean. She opted to have the baby at home with a midwife because she could not find a doctor who would assist in a vaginal birth. When she went into labor, the sheriff arrived, strapped her into an ambulance and took her to the hospital where she had a cesarean section against her will. Following the birth, when she protested this action in court, the new-born was awarded a lawyer but the mother was not. In the end the court said that her rights did not outweigh the rights of the fetus she was carrying at the time. Could anything be more Orwellian?

This is what happens when a fetus is ascribed personhood. Instead of considering protection for the mother and the fetus, the well being of the fetus is set against the well being of the mother. I am sure that in the states where these events occurred, people swore that such things could never happen there, but they did. Even if the intention is not to abuse a pregnant woman’s rights, it only takes a misguided judge to go down that path.

It became clear that the issue was not more serious sentencing when a pregnant woman dies. The real intent was to hobble a woman’s right to control her reproductive health and access to care. This was a first step in undermining a woman’s right to choose.

In committee, the instances referenced above were of concern to the committee and were reflected when the  “Ought to Pass” recommendation failed. Because the entire committee felt this was an important issue, the bill was retained so that we could take the time to craft legislation that protected both mother and fetus and appropriately punish the person responsible for the death of the woman. When we adjourned that meeting, we expected we would meet over the summer to do just that, using the enhanced sentencing model.

Out of the blue, without public announcement, the Democratic members of the committee learned through the grapevine, that the committee’s recommendation to retain had conveniently not been recorded in the clerk’s office, when all other actions of the committee had been duly recorded. That meant that the bill was still active in committee. We further learned that there was going to be a vote to reconsider the vote to retain.  On that day, over the protests of the Democrats on the committee, the vote to reconsider passed and a further motion was made to pass the bill, which succeeded.

In order to achieve this, Republicans who did not support SB66 but were willing to work on the enhanced sentencing model, were noticeably absent that day. They were replaced by other Republicans, all women, as if that was going to somehow ameliorate the blatant abuse of power of the majority party,  who would vote the way Republican leadership dictated. The full committee had held hearings and heard from many people on this issue. The ringers brought in had heard none of this testimony. They voted they way they were told to vote without any knowledge, nevermind understanding, of the issues. Due process was kicked to the curb and the vote was a sham.

The shabbiest part of this charade was that it took away the opportunity for the whole committee to do their work and craft  a bill that would deal with criminal acts against pregnant women resulting in their deaths and at the same time protect her from the abuses that have occurred in other states.

But the story did not end there. It gets worse. Only after the bill had been passed by the full house,  did they realize that the bill was written in such a way that it gave pregnant women free rein to kill anyone during their pregnancy. This was due to an amendment quickly submitted that purported to protect women who underwent abortions, which are legal and part of every women’s reproductive rights. The correct thing to do at this point would have been for the governor to veto the bill and send it back to committee to address this issue, and along with any other problems the bill had.

This is not what happened. Instead, the EBA (Enrolled Bill Amendment) committee, which is charged with correcting misspellings, capitalization mistakes, punctuation errors and minor things like that, took on the inappropriate task of “fixing” this bill. Their justification for doing so was that they “understood” what the committee meant and they could fix that. Nevermind that this affects the entire criminal code and sets a dangerous precedent that the EBA gets to change what it wants in bills when their charge is basically to fix typos.

The Republican leadership claimed they had done their “due diligence” by bringing this to the full house for their consideration. Of course, this was mere window dressing as the vote went along party lines, because the Republicans were told how they were to vote and they did what they were told, nevermind if it went against their conscience or against their constituents.

The concerns surrounding the bill were shared by many on both sides.  A number of our Republican colleagues came up to me to say they had the same concerns about how pregnant women could be and are abused under this type of law. They went on to say that they could not vote based on their concerns because of the pressure they face from their party’s leadership. It was a frustrating experience to see due process utterly disrespected and that Republicans are not encouraged to vote their constituents, or their conscience, but have to fall in lockstep with whatever their leadership demands.

Make no mistake that women’s reproductive rights are under attack. Everyone who values human rights has a responsibility to take note of the farce that took place in the NH House of Representatives and speak out in support of women’s rights. The story is not over. This session, there is a bill, HB1511,  that seeks to establish viability at 8 weeks. It also strips away the protections for women in SB66. This is step two in taking away a woman’s right to choose. If this passes, next session there will be an even more draconian measures introduced that will further erode women’s rights. Out of over 180,00 voters polled in New Hampshire, 73% support a woman’s right to choose but the legislature is not representing these voters. It is utterly critical this year that these voices speak out against this assault on women.

Posted on 13 Jan 2018, 14:40 - Category: NH Legislature