LD 327 Would Convey Separate Legal Status to a Fetus

June 20, 2017

Augusta – The Maine Senate today voted to 18-17 “ought to pass” on a “fetal personhood” bill that seeks to establish a fetus as a separate and distinct person from the woman who carries it. LD 327 would convey legal status to a fetus, granting the fetus the legal rights to “heirs and an estate” and the right to sue under Maine’s probate code. The House rejected the bill earlier this month, voting 72-71 “ought not to pass.” The bill will now go back to the House for another vote.

“By granting new legal rights to a fetus, this bill jeopardizes the existing rights of pregnant women and could undermine their ability to receive emergency health care,” said Oamshri Amarasingham, advocacy director of the ACLU of Maine. “Maine legislators have rejected similar bills in the past. Unfortunately, the Senate has now voted to reverse course and put the rights of the fetus before the rights of the woman.”

LD 327 would open the door to wrongful death lawsuits against any individual or entity that the “heirs” of a fetus believe were responsible for a second- or third-trimester pregnancy loss, including an abortion provider or any other health care provider. Opponents of LD 327 argue the bill is unnecessary because Maine law already provides specific, additional tools for prosecutors and judges seeking to charge or punish a perpetrator who has harmed a pregnant woman in a way that damaged or terminated her pregnancy.

In 2005 Maine passed the Motherhood Protection Act, which requires judges, when determining sentences for perpetrators, to assign special weight to the fact that “the victim is a woman that the convicted person knew or had reasonable cause to believe to be in fact pregnant at the time the crime was committed.” At the same time, the Legislature also created the crime of Elevated Aggravated Assault on a Pregnant Woman, which established as a Class A crime punishable by up to 40 years in prison the act of intentionally or knowingly causing serious bodily injury to a person the perpetrator knew or had reason to know was pregnant. By law, “serious bodily injury” includes injury to the fetus or termination of the pregnancy.

And in cases such as domestic violence and car accidents that result in the loss of a pregnancy, a woman can sue for negligence, assault, battery or a host of other causes and the court will take the loss of pregnancy into account in awarding damages.

“Maine already has strong protections for pregnant women that appropriately focus on the devastating loss or injury to the woman,” said Amarasingham. “We should not undermine these protections by injecting confusion into the law.”

LD 327 is similar to other “fetal personhood” bills around the country that are championed by opponents of abortion rights as a way to chip away at abortion rights, and is based on template language provided in the Americans United for Life legislative guide. The bill is nearly identical to a bill introduced in 2013 as part of a package of bills to restrict access to safe and legal abortion.

The ACLU of Maine was joined by reproductive health care providers, medical experts and advocates for victims of domestic violence in opposing this bill.

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