Throughout human history, expectant women have attracted special awe. From ancient statues representing fertility to modern men offering a seat on the bus, humans in all cultures revere the fragile miracle of birth and the precious nature of motherhood. It is for this reason that humanity has always viewed the murder of a pregnant woman as a particularly heinous crime.
But like many states, Vermont fails to criminalize the deliberate or reckless killing of a fetus in utero. Despite all of that human acknowledgement of the sacredness of the embryo connected to nurturing motherhood, our state does very little to protect that iconic institution.
I say “very little,” because actually Vermont law does acknowledge that fledgling life in the womb, for civil recovery purposes only. In Vaillancourt v. Medical Center Hospital of Vermont (1980), the Vermont Supreme Court ruled that the state’s wrongful death statute permitted a cause of action against a physician who negligently caused the death of a fetus in utero.
“A viable unborn child is, in fact, biologically speaking, a presently existing person and a living human being, because it has reached such a state of development that it can presently live outside the female body, as well as within it,” said the Court.
But then, in State v. Oliver (1989), the Vermont Supreme Court determined that criminal charges could not be supported under Vermont statutes for the killing of an unborn child. The judges clearly found their decision repugnant, but noted that the court “is not the proper forum in which to consider and accomplish the extension of criminal liability that would occur as a result of interpreting the term “person” in §1091(c) to include a viable fetus. That task must be accomplished by the legislature.”
But that task has never been accomplished by Vermont’s legislature.
Federal law has recognized the criminality of killing the unborn, in the Unborn Victims of Violence Act 2004 (also known as Laci and Conner’s Law, after the infamous murder case involving Scott Peterson). That bill defines all unborn babies as “members of the species homo sapiens.” Many state statutes provide similar protections.
Vermont’s bizarre jurisprudence means that a doctor who is alleged to have negligently caused the death of a woman’s fetus can be sued for wrongdoing, but a malicious criminal who beats a woman and thereby causes the death of her unborn baby cannot be charged in any way for taking that life.
H.57, Vermont’s new abortion preservation bill, contained language in the draft that has since been removed which pronounced that “A fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.” This language would have insulated physicians from liability by erasing fetal wrongful death claims, while achieving the opposite of what was suggested by the Oliver court: instead of broadening criminal liability to include violence against the unborn, this language would have further insulated such killers from any possibility of criminal prosecution.
H.57 is portrayed as protecting the rights of women, but, as drafted, it would have both eliminated their legal recourse where their baby is negligently killed, and ensured their unborn babies had no rights recognized as victims for criminal law purposes.
Vermont’s legislature is poised to enact the most abortion-friendly legislation in the nation via H.57, and is weighing a first-in-the-nation amendment to the state’s constitution that could include language that the unborn “shall not have independent rights under law.” This would clearly alter the Vaillancourt decision, by erasing that Supreme Court’s existing legal recognition of a wrongful death claim for an unborn fetus. Vermont’s legislature will have then ignored or reversed two state Supreme Court decisions, without any consideration of the rights protected in those cases.
Nothing in Vermont law recognizes the sacredness of the pregnant woman. Recent efforts seek to ensconce abortion procedures––at any stage of gestation, and for any reason––in statutory and constitutional armor. But the pregnant woman’s right to civil recovery for medical malpractice is unaddressed, if not eliminated, and her expectation of justice in the event her unborn child is murdered by a criminal is terminated.
If Vermont’s legislature cared about women’s rights, it would take up a measure that protected the unborn from those who kill them. It has failed to do so in the 30 years since Oliver. On February 20, the Vermont House voted 106-41 against an amendment to H.57 that would have recognized “…that a viable human fetus is a person under Vermont law.”
That’s poor comfort for expectant mothers; good news for baby killers, who could then have been prosecuted under Vermont’s statutes (at least, where the state could prove viability). People who murder unborn babies are completely safe now in Vermont.