Fetal bill mired in familiar debate
Homicide legislation returns to abortion
An all-too-familiar conversation is engulfing the Colorado statehouse, vexing lawmakers and drawing national attention, as a measure to toughen criminal laws in attacks on pregnant women spirals once again into a debate about abortion.
Republican lawmakers introduced a bill in the closing weeks of the session to give prosecutors the ability to file murder charges in the death of an unborn child — a reaction to the March 18 attack on a Longmont woman whose 7-month-old fetus was cut from her womb and died.
The supporters say the measure is designed to provide “justice” for the fetus, not just the mother, and echoes fetal homicide legislation in nearly 40 states.
But in Colorado, the bill is colored by the state’s unique legacy as a social-conservative battleground where voters rejected three so-called personhood initiatives, most recently in 2014, to redefine the law on when life begins.
Senate President Bill Cadman, the lead sponsor, said he crafted the legislation to avoid the entrenched rhetoric on either side.
The bill, he said in a recent interview, is intended “to guarantee that a woman who wants to have a baby is protected” the same as a woman who chooses an abortion, “just like she is now.”
The measure includes language to exempt actions taken by the mother, medical procedures and prescribed medications — limits that go further than other states.
Gov. John Hickenlooper, a Democrat, applauded his intentions. “I think President Cadman is very wisely trying to keep it out of controversy,” he said in an interview before the
bill’s introduction. The question is “how can we do something that addresses the severity of this kind of crime and doesn’t bring up all the old battles?”
But the efforts only created more critics and unusual political alliances.
Personhood USA, an organization that pushed the ballot initiatives, opposes the bill because the language protects abortions — aligning it with the state’s Planned Parenthood and NARAL Pro Choice groups, which are concerned that it could threaten the legality of abortions.
And two prominent Colorado anti-abortion organizations are split on the measure.
“We believe that we want to protect every baby we can,” said Sarah Zagorski, the executive director of Colorado Citizens for Life, which is an affiliate of the National Right to Life organization. “I don’t think (the bill) says anything about how we view abortion right now.”
But Colorado Right to Life’s Rosalinda Lozano sees it differently.
“It was an opportunity for (Cadman) to really stand strong on life, and the way it is written he is actually affirming abortion,” she said. “The Republican Party is really trying to get away from the life issue. … They are preparing for 2016 and this is not an issue they want to fight about in a presidential election.”
Michelle Wilkins, the 26year-old Longmont woman who lost her unborn child and suffered injuries in the attack, issued a statement last week saying she is aware of the legislative efforts but not taking a position on the bill.
Her attacker, Dynel Lane, 34, faces eight felony charges, including first-degree unlawful termination of pregnancy. She could spend more than 100 years in prison if convicted on all counts.
But Boulder County prosecutors were not able to levy a murder charge because the current law requires proof the child was born alive. Authorities said a coroner’s report showed no evidence Wilkins’ fetus — a girl to be named Aurora — ever lived outside the womb.
The new legislation redefines a person for the purposes of nine murder and assault charges to include “an unborn child at every stage of gestation from conception until live birth.”
The bill would not require the assailant to know the mother was expecting a child. Another issue critics identify is how to define conception, which is often equated with fertilization but medical experts say it is the equivalent of implantation.
The roughly 40 states with fetal homicide laws vary on the starting point, defining it as fertilization, implantation, viability or a certain number of weeks into gestation, according to a review of laws compiled by the National Conference of State Legislatures, a bipartisan Denver-based organization that tracks legislation. But most states define it near conception.
Rep. Mike Foote, a Lafayette Democrat and a Boulder County prosecutor, said the ambiguities in the bill worry him. “When I look at this language, there are a lot of questions I have,” he said.
Even though the bill is limited in scope, Foote is most concerned about redefining “person” to include an unborn child because it emulates the personhood amendments.
Foote sponsored the 2013 law toughening crimes against pregnant women used in the prosecution of Lane and included a specific prohibition against personhood — one he’d like to see added to this bill.
“It has to be clear it’s not personhood,” he said.
Deborah Tuerkheimer, a law school professor at Northwestern University who reviewed the bill, said she is concerned about making the fetus a distinct class of victims.
“That raises a whole host of problems when you separate the mother from the pregnancy and suggest the fetus has independent rights,” she said in an interview.
In other states, critics point to cases in which fetal homicide laws were used to prosecute the mother for endangering her unborn child. Earlier this year, an Indiana jury found a 33year-old mother named Purvi Patel guilty of feticide for attempting to end her pregnancy.
“In states with other versions of fetal homicide laws, it always ends up victimizing pregnant women and it doesn’t protect pregnant women,” said Karen Middleton, the NARAL state director.
Cadman said the bill goes out of its way to say “a mother cannot be prosecuted for making any choice about her own body.”
“I don’t think it can get any more clear than that,” he said.