June 21, 2018
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Hampden legislator’s bill seeks legal standing for ‘unborn child’

By Meg Haskell, BDN Staff

AUGUSTA, Maine — Maine would join dozens of other states that assign a degree of legal standing to human fetuses under the provisions of a bill now making its way through the Legislature.

Speaking at a public hearing  before the Criminal Justice and Public Safety Committee on Friday, proponents — including groups that oppose abortion — said the law is needed to bring justice to families that  lose “unborn children” to acts of violence against women who are pregnant.

But opponents said existing state law already acknowledges the unique nature of such a loss and that the bill is really one of several attempts in the Republican-led Legislature to erode constitutionally protected abortion rights.

The bill, LD 1463, creates new, prosecutable crimes in Maine law, including murder, felony murder, manslaughter, assault, aggravated assault and elevated aggravated assault against an unborn child. Punishment would be consistent with existing penalties for the same crimes committed against an adult.

Language in the bill specifically excludes abortion from prosecution and exempts a pregnant woman from being prosecuted for acts against her fetus.

“At no point is this intended to affect a woman’s right to choose [abortion],” said bill sponsor Debra Plowman, R-Hampden. In fact, she said, her proposal could be considered “the ultimate pro-choice bill.”

“When a woman wants to have a child and her unborn child is taken from her [through violence], that’s no choice at all,” she said.

The bill is modeled after a federal law known as the Laci and Connor bill. That law was enacted in 2004 after a high-profile case in California in which Scott Peterson was convicted of killing his pregnant wife and unborn son. The federal law allows for the separate prosecution and sentencing for crimes against an unborn child and applies only to crimes committed on federal property, leaving states the freedom to craft their own bills.

The issue became divisive in 2005 Maine after a Bangor man, Roscoe Sargent, was convicted of stabbing to death his pregnant wife, Heather Fliegelman Sargent, who was in her eighth month of pregnancy at the time. Heather Fliegelman Sargent’s nearly full-term fetus died after the grisly attack.

Sargent’s family, supported by anti-abortion lawmakers and groups, came forward at the time in support of state legislation that would have allowed Roscoe Sargent to be tried and sentenced for the death of his son as well as for that of his wife. The measure failed, but a competing bill was adopted that directs judges to give special consideration in cases of attacks against pregnant women.

Heather Fliegelman Sargent’s family was back in the committee room on Friday, testifying in support of Plowman’s bill.

Kristy Eckmann of Dedham,  Heather Fliegelman Sargent’s aunt, read a graphic description of the attack on her niece and pointed out that the child she was carrying at the time she was murdered was old enough to have survived outside the womb.

“It was a slap in the face when we found out that [Roscoe Sargent] could not be charged with the murder of Heather’s child because there was no law in Maine,” Eckmann told lawmakers, urging passage of the bill.

Also speaking in support was Rep. Paul Davis, R-Sangerville, who described the experience of hearing his infant granddaughter crying moments after she was born at a local hospital.

“Why should a little baby like that have the full protection of the law as soon as she’s born, but not 30 seconds before?” he asked rhetorically.

Maine is one of only a few states that do not assign legal standing to the developing fetus. Some states assign that standing at “viability” — the ever-earlier age at which a fetus may be expected to survive outside the womb, with or without artificial support. Other states protect the fetus from conception. Plowman’s bill sets the threshold at viability.

Despite the emotionality of the issue and the testimony at the hearing, opponents argued that Plowman’s bill blurs the lines between science and religion and paves the way for future legal challenges to a woman’s right to decide her own reproductive future.

“This bill would clearly separate a woman from her fetus in the eyes of the law,” said Alysia Melnick of the Maine Civil Liberties Union.

“Violence against a pregnant woman is heinous and should be punished accordingly,” said Melnick, who is pregnant herself. But Maine law already allows judicial consideration of a victim’s pregnancy when sentencing violent abusers, she noted, resulting in longer prison sentences for perpetrators.

But in other states where fetal rights are specifically protected, she said, pregnant women have been arrested and prosecuted for jeopardizing the well-being of their fetuses by using tobacco, alcohol or drugs, or for admitting to suicidal thoughts.

Melnick said Maine lawmakers should not adopt unnecessary legislation, however well-intentioned, that will almost certainly lead to courts getting entangled in the abortion debate.

“Please do not allow the victims of violent crime to used as political tools,” she said.

Physicians testifying at the hearing expressed concern that the bill could pit the rights of women against the rights of their developing fetuses, and that fear of prosecution might prevent women from seeking medical treatment for conditions such as drug addiction or diabetes.

Supporters of LD 1463 include the Maine Right to Life Committee, the Catholic Diocese of Maine and the Christian Civic League. Opponents include the Maine Women’s Lobby, the Maine Coalition to End Domestic Violence, the Maine Family Planning Association and the Maine Association of Criminal Defense Lawyers.

The committee will workshop the bill on Tuesday, May 17.

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