After crash kills fetuses, a legal quandary
Toolbox
By Peter Hirschfeld VERMONT PRESS BUREAU - Published: February 8, 2010
MONTPELIER – In the early-morning hours of Jan. 7, a violent car crash on Route 15 in Lamoille County forever changed the course of Sarah Cardinal's life.
Cardinal, 26, is still recovering from the broken bones and internal injuries that nearly took her life. But the death of the twin fetuses she was carrying, Cardinal said from a Fletcher Allen rehabilitation facility Wednesday, have inflicted by far the most pain. The Johnson woman was eight months pregnant.
"These were our first babies," Cardinal says. "We'd been trying for a long time."
Cardinal says her grief turned to bewilderment when she realized that, as far the state was concerned, no one died in the two-car accident. The crash remains under investigation, and no charges have been filed. But if driver negligence warrants criminal charges, Cardinal says, she wants the young man responsible to be held accountable for the death of her twins. As such, she's become the newest supporter of proposed legislation that would increase potential prison sentences for people convicted of the negligent or intentional killing of an unborn fetus.
"They could have been born the next day," she says. "These were human beings. These were my babies. And it blows my mind that the laws don't recognize them."
Three bills circulating in the Vermont Statehouse attempt, by various means, to address the issue of fetal homicide, a crime for which 35 states already have some form of legislation. Patricia Blair, a Pownal woman who lost her twin fetuses in a car crash last summer, has become the bills' most passionate advocate.
"I feel like I'm fighting an uphill battle for a woman's right to have her child," Blair says. "It seems like common sense. But it's been incredibly frustrating at times."
Blair's 6-month-old fetuses died as a result of injuries she suffered in a Route 7 crash. The young woman allegedly responsible for crash – Kelly Cook, also of Pownal – has since been charged with driving under the influence of drugs and gross negligence with injury resulting.
Blair wants her to face criminal charges for the death of her "babies" as well.
"If I'm driving to the hospital to give birth, and someone crashes into me and kills my twins, then nobody died. If it's 24 hours later and I'm on my way back home, it's a double fatality," Blair says. She's spent at least two days a week at the Statehouse since the session began, staying overnight in Montpelier in the cheapest hotel she can find. "Those are the same children. They didn't go through some miraculous process where they became human."
It's a vexing issue that has won Blair plenty of sympathy but, so far at least, no legislative action. Sen. Dick Sears, chairman of the Senate Judiciary Committee, said Wednesday that chamber leadership will let him, and him alone, decide whether to hold committee hearings on the issue.
"I intend to make a decision sometime either this week or early next week," Sears said. "I want to take my time, and when I do decide, I will share with everyone my reasons for that decision."
Sears co-sponsored one of the bills that looks to redress Blair and Cardinal's grievances. His bill would create heightened penalties for existing crimes when they're perpetrated against pregnant women. Sears likens his bill to hate-crime legislation that carves out a protected class for special consideration.
Blair says she appreciates Sears' efforts, but says they don't go far enough. She prefers competing legislation in both the House and Senate that would create a new statute focusing specifically on the death of a fetus.
"That's what I'm looking for, for someone to recognize that someone died here, that a human life was lost," Blair said. "It wasn't me, the pregnant woman, that suffered most. It was the babies."
Women's rights groups, including the Vermont-ACLU and Planned Parenthood, have expressed opposition to all three bills. The concept of "fetal personhood," they say, would establish a precedent that could ultimately jeopardize abortion rights.
"It sounds like what people want to do is make a statement that a fetus has at least some of the rights that a born person has," Allen Gilbert, executive director of the Vermont-ACLU, said last month. "We think that's a very slippery slope."
Blair said she thinks the abortion debate is being used as an excuse to prevent the legislation from gaining traction. Blair, 38, said that as a pro-choice woman, she has no interest in repealing a woman's right to choose. Her bill, she said, actually improves women's rights.
"I think women should be able to choose to have their children," she said. "Someone took that choice away from me. What about my choice?"
Rep. Rachel Weston, a Burlington Democrat, says she worries less about the bills' implications on abortion rights than their potential to undermine the civil rights of pregnant women. She points to documented cases in other states where, citing fetal-protection laws, doctors or state officials forced pregnant women into unwanted treatments, ostensibly to protect the fetus they were carrying.
"All these bills bring into question at what point does a woman stop having full rights as a citizen to determine medical choices," Weston says.
Weston says she supports efforts to improve the safety of pregnant women. But enacting the proposed legislation, she says, will have the opposite effect.
"Whenever we're talking about creating a special separate status for a fetus, when we do that we inadvertently take away some of the rights of the woman," Weston said. "The question is – does pregnancy make a woman less of a citizen or mean she should have less rights?"
Though Blair and Cardinal's incidents involved car accidents, Sears says the issue is also about domestic violence. Pregnant women, he said, are statistically more likely to suffer domestic abuse, often as a result of their pregnancy.
Blair says an abusive husband or boyfriend can beat his late-term partner until the fetus dies and face only assault charges. The lack of a fetal homicide bill, she said, jeopardizes not only fetuses but the mothers carrying them.
"I hope we can all say there's something wrong when a man can beat his 9-month-pregnant wife in order to kill the fetus and not be charged with something more serious than assault," Blair said. "I really hope we can say that."
In an election year especially, the issue could become a political hot potato, forcing candidates for higher office into potentially controversial social stances. For Blair and Cardinal, who spoke together on the phone recently ("we both just started crying and talking," Blair said), the issue is less about politics than it is about honoring their deceased "family members."
"I can't give my twins birthday presents. I can't give them away at their wedding," Blair said. "But I can give them this. I can give them a voice."
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