By the authority vested in me, pursuant to part II, Article 44 of the New Hampshire Constitution, on June 18, 2012, I vetoed HB 217, an act including "fetus" in the definition of "another" for the purpose of certain criminal offenses.
HB 217 provides that a fetus "from the embryo stage which is the end of the eighth week after conception" until birth is to be included in the definition of "another" for the purpose of the state's criminal laws governing first and second degree murder, manslaughter, negligent homicide and causing or aiding suicide. This legislation, in other words, would allow the State of New Hampshire to prosecute a pregnant woman or another individual for causing the death of a fetus that had not already been "born alive."
Under current New Hampshire criminal laws, a person may be prosecuted for intentionally, negligently or recklessly causing the death of a fetus only if the fetus was first "born alive."
I support legislation that would establish these criminal penalties for the death of a fetus, provided that criminal liability is triggered only if the fetus was deemed to be "viable" and that the legislation was based upon sound medical science. HB 217 fails to meet that standard. Â This bill would make it difficult for New Hampshire residents to obtain fertility treatments and unreasonably restricts a woman's rights during pregnancy. For these reasons and because this bill fails to contain a "viability" standard, I am vetoing HB 217.
A viability standard is important for several reasons. Viability is a long-established and recognized medical timeframe. It is understood by physicians and has been recognized by the courts. Viability is the timeframe at which a fetus is capable of sustained life outside the womb.
Further, the definition of a fetus that is contained in HB 217 is ambiguous concerning whether or not the embryo stage is fully included or excluded. This ambiguity could affect the availability of reproductive medical treatments that are offered to women and men that assist in building families. HB 217 also does not provide sufficient protections when a woman is already pregnant. Because the medical treatment exemption is conditioned on the "request" of the pregnant woman or her legal guardian, it is not clear that an emergency room physician will be able to perform emergency treatment upon a pregnant woman brought in unconscious following a car accident or stroke, especially if there is no legally appointed guardian.
Medical experts believe that approximately one out of four pregnancies ends in miscarriage by the end of 8 weeks. I am concerned that HB 217 would allow for a murder prosecution relative to an 8-week old fetus when there is a one in four possibility that the pregnancy would not go to term. That is why I believe that any criminal liability for the death of the fetus should be based upon "viability" which is not rigidly tied to a certain number of weeks following conception.
For all of these reasons, I have vetoed HB 217.