Abortion politics flare as fetal homicide bill advances

DENVER — Senate Republicans on the Judiciary Committee advanced a fetal homicide bill Wednesday night that, for limited use, would write “personhood” language associated with the hardline anti-abortion movement into state law.

The three-to-two party-line vote came at the end of a five-hour hearing charged with abortion politics and cast in the eerie glow of a recent macabre attack in Longmont on a pregnant woman. The attack made national news and spurred Senate President Bill Cadman to introduce his explosive SB 268 with little more than two weeks remaining in this year’s legislative session. (A copy of the bill is downloaded below.)

Debate swung between supporters of the bill outraged that fetuses are not specifically viewed in state law as potential crime victims and opponents of the bill wary that the tragic events in Longmont would be used to unravel a hard-won two-year-old truce* in the political war over abortion in Colorado.

Cadman’s bill would define the word “person” to include “an unborn child at every stage of gestation from conception until live birth” in cases of homicide and assault. But the bill also includes exceptions that say that the personhood definition can not be used to criminally prosecute mothers for acts committed against their “unborn children,” medical professionals performing requested procedures or pharmacists dispensing abortion drugs.

Supporters of the bill hold up those exceptions as clearly written, easy to understand evidence that the bill will not undermine reproductive choice.

But, as opponents of the bill point out, there is perhaps no better place in the world for devils to hide than in the folds of language – concerning human reproduction – written to land people in jail.

Murders and Justice

“Coloradans believe a murder was committed in Longmont,” said Berthoud Republican Kevin Lundberg.

He was referring to the death of Aurora, the seven-month-old fetus that reportedly died without ever managing to take a breath after being cut from Michelle Wilkins’s womb on March 18 by Dynel Lane in what reports suggest was a kidnapping plot.

Lundberg, like other supporters of the bill, argued repeatedly that only a murder charge could bring justice.

“But this law defines personhood,” said Amanda Henderson, director of the Interfaith Alliance of Colorado. “It will bring harm and judgment more than support.

“The criminal here was sick,” she said. “She’ll get a hundred years [from a jury]. This kind of crime is not an everyday event, but pregnancies and the complexities around pregnancies, they’re everyday realities.”

“So you don’t think this crime deserves a murder charge?” asked Lundberg.

“I think the charge is a technicality,” said Henderson.

Lane’s alleged attack on Wilkins brought a suite of eight felony charges from Boulder District Attorney Stan Garnett, including first-degree unlawful termination of a pregnancy, first-degree attempted murder, two counts of first-degree assault and two counts of second-degree assault. Prosecutors also filed two counts of a crime of violence, which act as so-called sentence enhancers. Lane is being held in prison on $2 million bail. Garnett believes prosecutors armed with these charges will have no problem persuading a jury that Lane is guilty beyond any reasonable doubt. The maximum sentences the charges amount to tally to more than 100 years. Garnett said he believes the 34-year-old now-infamous assailant will “very likely die in prison.”

Personhood and Trojan Horses

Supporters and opponents at the hearing often seemed to be talking past one another.

As Ellen Roberts, a Republican from Durango and the committee chair, was quick to acknowledge, the pro-choice lobby is on high alert in opposition to the bill. She said she has been bombarded by hundreds of emails and that she understands people are concerned.

Yet she also seemed to let her frustration with some of the emails get the better of her. Her interactions with many of the opposition witnesses bordered on dismissive.

“I have to believe many of the opponents haven’t read the bill,” she said.

Opponents have linked Cadman’s bill to repeat failed attempts in Colorado to pass personhood ballot initiatives that would define life as beginning from conception and that would outlaw abortion, some popular contraceptions, as well as fertilization technologies and research. In recent years, those proposals have been voted down in landslides.

“I have read this bill,” Roberts said. “It’s not the same as the personhood ballot initiatives. Those proposals contained no exceptions. I know, because I was looking for exceptions, and they weren’t there, and so I voted against them.”

Cadman was also on high guard against implications that his bill was a “Trojan horse” meant to sneak the personhood concept into law.

Corrine Rivera-Fowler, deputy director at the Colorado Organization for Latina Opportunity and Reproductive Rights, testified that her organization “really does feel that this bill is another attempt to push personhood. We don’t want to see this bill eventually used to push a political agenda. Personhood laws have extreme unintended consequences.”

Rivera-Fowler was sitting a seat away at the witness table from Cadman. They made odd bookends. She is about five feet-three inches tall. Cadman is well over six-feet tall. He took offense that his motives were being called into question, and the room grew tense.

“You questioned my motives three times,” he said staring at the witness. He held up a copy of a hospital form bearing the footprints of his son as a newborn infant.

“My wife was spring cleaning and we found this,” he said. “This is my political motivation. My political motivation is my son,” he said, his voice rising. He turned and held the paper up to the people in the gallery of the Capitol’s large old Supreme Court chamber. “This is my motivation,” he said pointing at the three-inch-long foot prints. “This is my motivation.”

Crimes and Legislation

The context in which the bill has been introduced includes more than the grisly Longmont crime.

The bill comes after lawmakers in Denver took years of preparation and months of debate to hammer out House Bill 1154, the Crimes Against Pregnant Women Act, in 2013, which ratcheted up laws protecting pregnant women and made it possible for Boulder DA Garnett to levy the suite of felony charges against Lane. That bill was carefully crafted not to include a personhood definition or to otherwise set up separate rights for women and fertilized eggs, attached fertilized eggs, and fetuses growing inside of them during pregnancy. (The 2013 act is also available below.)

The bill also comes amid a re-energized years-long national effort to chip away at abortion rights on a practical level through Trojan-horse measures. These include laws that have put in place mandatory extended wait times for women seeking abortion appointments and non-scientific speeches written by lawmakers that must be read out by doctors to patients about pregnancy and abortion before an abortion can be preformed. New laws have required doctors to administer unnecessary ultrasounds internally with a probe before an abortion. Regulations passed in states like Texas have been designed to make it too costly for abortion clinics to remain open.

The result is that abortion is now effectively unavailable to women in wide swaths of the country, especially poor women. And those measures have been written and advanced mainly by the very organizations whose representatives were testifying on behalf of Cadman’s bill. Indeed, as became clear in testimony, Cadman’s bill was written by the anti-abortion group Americans United for Life.

Witnesses in support of the bill offered assurances that it was in no way an anti-abortion measure.

But the assurances came from, among others, Mike Norton of the Christian-right Alliance Defending Freedom; from former Attorney General John Suthers, a high-profile conservative politician running for mayor of Colorado Springs, home to Focus on Family; and from Ovide Lamontagne, general counsel for Americans United for Life who flew in from Washington for the hearing.

Such assurances, delivered from deep inside the power elite of the anti-abortion movement, will not quell the concerns fueling opposition to the bill.

Homicide and Manslaughter

What’s more, for all the passion among supporters of the bill to see justice done in the Wilkins case, Cadman’s bill would very likely not even apply to the crime committed in Longmont, according to American Civil Liberties Union Public Policy Director Denise Maes.

“This bill does not even address that situation,” she told the committee members, who seemed not to be listening. They nodded and looked at notes but asked her no questions.

But as Maes explained later to The Colorado Independent, Lane had lured Wilkins to her home allegedly to steal the fetus and pass it off as her own. There was no intent to kill. Despite the insistence of Lundberg that a murder had been perpetrated in Longmont and that the crime demanded a homicide charge, in fact the crime committed seems much more clearly to have been manslaughter, said Maes. It was horrible, tragic, criminal, but also unintentional.

In other words, Cadman’s bill may do nothing to bring the kind of justice for women that supporters are demanding. But opponents of the bill say that, if history is any measure, it will surely inspire attorneys paid by organizations like Americans United for Life and the Alliance Defending Freedom to find ways to attack abortion rights.

“Note that the bill’s exceptions only apply in criminal prosecutions,” said Maes. “Why does it make that distinction? The exceptions don’t apply in civil cases. So under this bill there are no protections against a woman being brought up on liability charges — if she fails to leave an abusive husband and the fetus is harmed, say, is she liable?”

On a press call held before the hearing, Lynn Paltrow, director of National Advocates for Pregnant Women, cited research she has conducted into the way feticide and anti-abortion laws over the last 40 years have been used less often against violent criminals or drunken drivers and more often against pregnant women.

“If you look at the numbers, she said, it’s women who are being prosecuted. That’s why we see this bill as a bait and switch.”

Supporters of the bill on the committee asked for specific examples and details of cases brought around the country against women and wanted to know how closely the laws in those cases mirrored Cadman’s bill. They received unsatisfying answers from witnesses who said they weren’t lawyers.

Debate and More Debate

The bill is now headed to the the Republican-controlled Senate floor, where Cadman is sure to win the backing of his entire caucus. All but three Republican senators already have signed onto the bill as co-sponsors.

But in the Democratic-controlled House committee hearings next week, debate is sure to be even more fierce. There will be battles over amendments seeking to more explicitly safeguard women and abortion providers from prosecution and to protect wider Colorado law from any possible encroachments of personhood. Witnesses on both sides will surely speak with detail then as to how bills like Cadman’s have been applied around the country and what may or may not be different about this one.

*Note: As a reader points out, the “hard-won two-year-old truce” in the abortion-politics wars mentioned above is probably less a “truce” than a lull in hostilities. Fewer serious battles break out, but skirmishes come at a regular clip. Personhood groups submit ballot initiatives most election years with little hope of passing them. And, as I reported last year, Republicans have made a routine of introducing anti-abortion bills each year as a nod to their supporters. Colorado is a pro-choice swing-state, however, and it would take Republican control of all three branches of government to pass the bills, a turn of election fortune not likely to happen anytime soon. –JT

**Correction: Corrine Rivera-Fowler was identified in the story as “director at the Colorado Organization for Latina Opportunity and Reproductive Rights.” She is in fact deputy director.

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Photo of former Colorado Attorney General John Suthers testifying on the 2015 fetal homicide bill by John Tomasic.