CAUSING DEATH OF EMBRYO OR FETUS - S.B. 70 (S-1) & 71 (S-2): FIRST ANALYSIS
Senate Bill 70 (as enrolled)
Senate Bill 71 (as enrolled)
Sponsor: Senator Bill Schuette (Senate Bill 70)
Senator William Van Regenmorter (Senate Bill 71)
Committee: Judiciary
RATIONALE
Public Act 238 of 1998 amended the Michigan Penal Code to prescribe penalties for certain criminal or grossly negligent acts committed against a pregnant woman that cause her to suffer a miscarriage or stillbirth or that harm the woman's embryo or fetus. Public Act 238 applies to various assaultive crimes, acts of gross negligence, drunk driving, and careless or reckless driving. A recent case in Oakland County has raised concerns among some people that the law might not be broad enough.
In the Oakland County case, last year a man was convicted of killing his wife, who was in the early stages of pregnancy. The Oakland County Circuit Court ruled, however, that the man could not be charged with the death of his wife's embryo under Public Act 238, because his actions did not technically result in either a miscarriage or a stillbirth since the embryo was not expelled from the woman's body. Some people believe that this technical distinction constitutes an unforeseen loophole in the criminal provisions added by Public Act 238. They suggest that the penalty provisions for causing a miscarriage or stillbirth through
a criminal or grossly negligent act against a pregnant woman should include causing the death of an embryo or fetus.
CONTENT
Senate Bill 70 (S-1) would amend the Code of Criminal Procedure to include death to an embryo or fetus in the sentencing guidelines classifications. Senate Bill 71 (S-2) would amend the Michigan Penal Code to include intending to cause and causing the death of an embryo or fetus in the penalty provisions for various offenses against a pregnant woman. Senate Bill 70 (S-1) is tie-barred to Senate Bill 71. Both bills would take effect on June 1, 2001.
Senate Bill 70 (S-1)
The bill would include causing death to an embryo or fetus, as
proposed by Senate
Bill 71 (S-2), in each of the existing sentencing guidelines classifications for the
following felonies:
Senate Bill 71 (S-2) The bill would add causing the death of an embryo or fetus to
each of the
Michigan Penal Code provisions described below. (Where the Code currently
refers to conduct that results in a miscarriage or stillbirth, the bill also would
include conduct resulting in death to an embryo or fetus.) Under the Code, intentionally committing various assault
offenses against a
pregnant woman is punishable by up to 15 years' imprisonment, a maximum fine
of $7,500, or both, if the violation results in a miscarriage or stillbirth. The
offense is punishable by imprisonment for life or any term of years, however, if
both of the following apply: -- The person intended to cause a miscarriage or stillbirth or
great bodily harm to
the woman's embryo or fetus, or acted in wanton and willful disregard of the
likelihood that the natural tendency of his or her conduct would be to cause a
miscarriage or stillbirth or great bodily harm to the embryo or fetus. -- The person's conduct resulted in a miscarriage or
stillbirth. In addition, committing a grossly negligent act against a
pregnant woman that
results in a miscarriage or stillbirth is a felony punishable by up to 15 years'
imprisonment and/or a maximum fine of $7,500. Drunk driving that involves an
accident with a pregnant woman, causing a miscarriage or stillbirth, is a felony
punishable by up to 15 years' imprisonment and/or a fine of not less than $2,500
or more than $10,000. Careless or reckless driving that is the proximate cause of
an accident involving a pregnant woman and results in a miscarriage or stillbirth is
a felony punishable by up to two years' imprisonment and/or a maximum fine of
$2,000. (The assault offenses to which the penalties apply include
assault for which no
other punishment is prescribed, or assault of a spouse or former spouse, an
individual with whom the offender has had a child, or a resident or former resident
of the same household (MCL 750.81); assault, without a weapon, that inflicts
serious or aggravated injury (MCL 750.81a); assault with a dangerous weapon
without intent to commit murder or inflict great bodily harm (MCL 750.82);
assault with intent to commit murder (MCL 750.83); assault with intent to do
great bodily harm less than murder (MCL 750.84); assault with intent to maim
(MCL 750.86); assault for which the punishment is not otherwise prescribed, with
intent to commit a felony (MCL 750.87); unarmed assault with intent to rob and
steal (MCL 750.88); and armed assault with intent to rob and steal (MCL
750.89).) 750.90a-750.90e BACKGROUND Prior to the enactment of Public Act 238 of 1998, several
decisions of the Michigan
Supreme Court and the Michigan Court of Appeals demonstrated the state of the
law concerning the death of or injury to a fetus. In deciding whether a fetus was
a "person" for purposes of wrongful death actions and criminal prosecutions, the
courts had based their decisions on whether the fetus was viable or "born alive". According to a June 26, 1997, order of the Michigan Supreme
Court, "Since at
least 1975 it has been held that a non-viable fetus is not a 'person' within the
meaning of the Wrongful Death Act" (Estate of Baby Girl McDowell, et
al. v
Stubbs). In this case, the plaintiff had delivered twins of approximately 20 weeks'
gestation who had heartbeats briefly after they were born. The plaintiff did not
dispute that the twins were not viable at the time of delivery, but focused on her
claim that they were born alive. The circuit court granted the defendant's motion
for summary disposition, concluding that the wrongful death act did not apply
because it "...'is intended to apply to a life which, absent some wrongful act, goes
on, and will go on and can be assumed to go on.'" The Court of Appeals reversed (Thomas v
Stubbs, 218 Mich App 46) based on
1980 and 1995 decisions in which the appellate court had adhered to the "born
alive" rule. In the 1995 case (People v Selwa, 214 Mich App 451), the
Court
concluded, "...[A] child is 'born alive' and thus a 'person' under the negligent
homicide statute if, following expulsion or extraction from the mother, there is
lacking an irreversible cessation of respiratory and circulatory functions or brain
functions" (emphasis in original). When Estate of Baby Girl McDowell, et
al. v Stubbs reached the Michigan Supreme
Court, the Court reversed the judgment of the Court of Appeals and reinstated the
decision of the circuit court. In its order, the Supreme Court cited a 1975 Court of
Appeals case (Toth v Goree, 65 Mich App 296) as holding that a
nonviable fetus is
not a person for purposes of wrongful death actions. The Supreme Court did not
issue an opinion, and subsequently denied a motion for reconsideration. ARGUMENTS (Please note: The arguments contained in this analysis
originate from sources
outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor
opposes legislation.) Supporting Argument Before the passage of Public Act 238 of 1998 (and Public Act
211 of 1998, which
addresses civil suits), it was difficult if not impossible to hold a person criminally
or civilly accountable for actions that led to the loss of a pregnant woman's unborn
child. Under a body of Michigan case law, in deciding a fetus's status as a
"person" for purposes of wrongful death actions and criminal prosecutions,
decisions were based on whether a fetus was viable or "born alive". Proponents of
Public Acts 211 and 238 hoped to circumvent the courts' "born alive" rule
legislatively by enacting criminal and civil penalties that apply when someone
injures a pregnant woman through assault, gross negligence, or drunk or reckless
driving in a manner that terminates the pregnancy or injures the embryo or fetus. The Oakland County Circuit Court's decision to dismiss the
charge against a man
for killing his wife's embryo when he killed his wife, because she did not
technically experience a miscarriage or stillbirth, points out an unforeseen
consequence of the 1998 legislation, which gears the criminal penalties toward
criminal acts committed against a pregnant woman. Essentially, that ruling
creates a new "born dead" rule: Unless the miscarried or dead fetus or embryo is
expelled from the pregnant woman's body, no charge may be brought under the
criminal penalty provisions of Public Act 238. The man convicted of murder in
Oakland County has not been held accountable for the death of his unborn child.
The bills would close this loophole in the 1998 law. Opposing Argument During deliberation of the 1998 legislation, it was determined
that, in order to
avoid any conflict with abortion rights granted under Federal case law, the
legislation should focus explicitly on actions against a pregnant woman that
harmed her fetus or embryo or caused her to suffer a miscarriage or stillbirth,
rather than applying criminal sanctions to the death of a fetus or embryo. Many
people were concerned that language specifically referring to the death of an
embryo or fetus could promote a new body of law affording an embryo or fetus
rights comparable to those held by individuals. They suggested that such
provisions would be subject to constitutional challenge because both Roe v
Wade
and Planned Parenthood v Casey, landmark U.S. Supreme Court
cases dealing
with abortion, have held that a nonviable fetus is not a person, so states are not
free to characterize a fetus as a person. By referring to a pregnant woman's
miscarriage or stillbirth, rather than an unborn child's death, the enacted language
does not assert equal legal rights for fetuses. Senate Bill 71 (S-2), however, proposes to enact language that
was discarded in
1998. Extending criminal penalties to actions that cause the death of an embryo
or fetus could be interpreted as securing full rights as a person for a nonviable
fetus or embryo. Response: The bill is consistent with the Roe decision and all of its
Federal court
progeny, including Casey, as well as with Public Act 238. Those cases, while
upholding a woman's right to choose to have an abortion, also consistently have
reiterated that the state has an interest in protecting potential human life. In
addition, the bill would not change the focus of Public Act 238 from actions against
a pregnant woman to actions against a fetus or embryo. The underlying crime
still would have to be an act of assault, gross negligence, or drunk or reckless
driving in which the pregnant woman was the victim. The bill would not provide a
criminal penalty for an action aimed specifically against the fetus or embryo. - Legislative Analyst: P. Affholter FISCAL IMPACT The bills would have an indeterminate fiscal impact on State and
local
government. The impact is indeterminate because there are no data to indicate
how many more offenders could be convicted of assault against a pregnant
woman, if death to an embryo or a fetus were added to the crimes. - Fiscal Analyst: K. FirestoneA0102\s70a This analysis was prepared by nonpartisan Senate staff for
use by the Senate in its
deliberations and does not constitute an official statement of legislative intent.
Offense
Category
Class
Stat. Max. Assault committed
against a pregnant
woman causing
miscarriage or
stillbirth, with intent
or recklessness
Person
A
LifeAssault committed
against a pregnant
woman resulting in
miscarriage or
stillbirth
Person
C
15 yearsGross negligence
committed against
a pregnant woman
resulting in
miscarriage or
stillbirth
Person
C
15 yearsDrunk driving
causing miscarriage
or stillbirth
Person
C
15 years Careless or reckless
driving causing
miscarriage or
stillbirth
Person
G
2 years