Fetal homicide bill clings to life in committee

Posted on April 6, 2012

The Colorado Statesman, April 6, 2012 by Peter Marcus

A measure that would offer prosecutors a tool in charging suspects with the same violent crimes against both a pregnant mother and her unborn child is still alive, albeit on life support.

House Bill 1130, sponsored by Rep. Janak Joshi, R-Colorado Springs, and Sen. Shawn Mitchell, R-Broomfield, was laid over on Monday by the Senate Judiciary Committee at Mitchell’s request so that he could take some time to rally Democratic votes and forge a peace between pro-life and pro-choice groups.

The bill would allow for separate criminal charges against a suspect for hurting a pregnant woman and causing her unborn child’s death or injury in the course of a crime committed against the mother while she is pregnant.

The bill was headed to sure death on Monday, facing a 4-3 Democratic party-line vote, causing Mitchell to ask for a delay. At issue is whether the legislation creates so-called “personhood,” or affording constitutional rights to an unborn child, which could lead to unintended, or intended consequences by banning abortion in Colorado.

Similar legislation last year, House Bill 1256, sponsored at the time by Rep. Mark Waller, R-Colorado Springs, was opposed by pro-life groups because it included “anti-personhood” language that stated, “Nothing in this article … shall be construed to confer the status of ‘person’ upon a human embryo, fetus, or unborn child at any stage of development prior to live birth.” Pro-life groups also opposed the bill last year because it included clear language excluding from prosecution medical care for which the mother provides consent, such as abortions.

Sponsors last year were attempting to win the support of pro-choice groups who for years had opposed so-called “fetal homicide” legislation because of fears over unintended consequences. But the move backfired, with pro-life groups attacking Waller, arguing that he conceded the “battle with the liberal, Godless, left-wing abortion industry.” Many of those comments were printed in an editorial in The Colorado Statesman.

Sponsors this year have attempted to bring both sides of the debate together — Colorado Right to Life and Planned Parenthood of the Rocky Mountains — by attempting to create an “abortion-neutral” bill. Colorado Right to Life believes sponsors have done so in HB 1130 by including the language, “If the commission of any crime codified in this… statutes is the proximate cause of death or injury to an unborn member of the species Homo sapiens, the respective homicide and assault charges for that death or injury may be brought contemporaneously with the underlying charges.”

The group says the language in the current bill is abortion-neutral because only a child is eventually “born.” Other organs or cells may be removed from the body, but those are not “born,” according to Colorado Right to Life. Therefore, the group says, the current language does not define “personhood.”

“The goal of all of us is to protect unborn children who are wanted by their mothers whose children are lost due to the crime committed by others,” Ed Hanks, with Colorado Right to Life and Colorado Conservative Action, testified at Monday’s hearing. Hanks is also the former communications director for state House Republicans.
Hanks shrugged off accusations by Democrats that the legislation is another attack on a woman’s right to choose. “There is no war on women here,” he said.

But Planned Parenthood has significant concerns with the legislation this year, mostly because there is no protection against creating personhood, and because they say there are no protections for a woman not to be criminalized for her own actions, such as if a mother kills her unborn child through drug use, or if a physician performs an abortion with the consent of the mother. Mitchell says he will offer an amendment to clarify that a mother cannot be prosecuted for her own actions that might cause an unborn child’s death.

Still, Planned Parenthood has its concerns, and much of it revolves around the personhood issue. The organization says HB 1130 creates a new class of victims, which are fetal eggs, and that could lead to criminalizing abortion. The group believes there is already statutes on the books that provide for enhanced sentencing of offenders for crimes committed against women who they believed were pregnant.

“The voters of Colorado have twice now indicated that they do not believe that the appropriate way to deal with a circumstance like this is through the adoption of a new definition of who a legal person is in Colorado,” said Kevin Paul, an attorney with Heizer Paul Grueskin LLP, who has represented Planned Parenthood for years. Paul was referring to personhood ballot proposals in 2008 and 2010, both of which were rejected by Colorado voters by wide margins. Proponents are attempting a similar ballot proposal for this year.

“There’s simply no way that you could adopt this bill without adopting that concept,” Paul continued.

His comments angered Mitchell, who said that Paul was, “Grasping for rhetoric to confuse.”

“He’s here throwing up dust and confusion; he’s here raising issues as creatively as he can, but he can’t cite one iota of a concrete problem,” said Mitchell.

He had the support of Sen. Kevin Lundberg, R-Berthoud, who told Paul, “It would strike me that your logic is straining out an ant while swallowing an elephant.”

Not every Republican on the committee, however, appeared convinced. Sen. Ellen Roberts, R-Durango, an attorney, seemed to have problems with the language of the bill, especially concerning using the term Homo sapiens. “What other species would someone be carrying?” she asked.

Roberts also wanted to know whether the bill was too expansive, wondering whether prosecutors would need to autopsy every woman murdered to find out if she was pregnant at the time of the crime.

Sen. Morgan Carroll, D-Aurora, also questioned the scope of the bill, arguing, “In some ways, this bill is broader than other versions that we’ve seen before.”

Tim Quinn, with the Colorado Bar Association, emboldened concerns by stating that there would be no way to enact the legislation without addressing the personhood issue.

“We couldn’t even tell what the bill did,” he said.



Posted in: Colorado