AUGUSTA — By a single vote, the House Friday opposed a measure that would allow the family of a viable fetus at least 24 weeks old who dies before birth to bring a wrongful death suit.

Opponents worry the proposal is meant to jam a foot in the door by abortion foes in the hope it could eventually lead to restrictions on abortion.

But Rep. Ellie Espling, R-New Gloucester, said the “ideological divide” on the issue shouldn’t prevent the state from ensuring justice for families that suffer harm.

Alison Beyea, executive director of the American Civil Liberties Union of Maine, said last month, though, that state law already allows a pregnant woman who suffers serious harm that causes injury or loss to a fetus to “seek and obtain both compensatory and punitive damages on multiple counts for her pain and suffering, emotional distress and loss of happiness.”

The bill would make a legal distinction between the mother and an unborn viable fetus, a change that Beyea said “is more than a question of semantics” because abortion foes aim to use the difference to try to overturn the 1973 U.S. Supreme Court decision in Roe v. Wade that established abortion as a right across America.

Though Maine is one of no more than 10 states that bar families from suing when someone’s negligence causes the death an unborn child old enough to live outside the womb, only a few states have passed legislation on the issue, none of them on the East Coast.


During a debate leading up to the 72-71 vote against the proposal, a handful of lawmakers spoke in favor of the bill. None spoke against it.

Rep. Richard Bradstreet, R-Vassalboro, said it doesn’t make sense that a woman involved in an automobile accident that kills her unborn child is allowed to sue for damage to her luggage, but not the loss of her baby.

The measure would also bar anyone from suing the mother, a health care provider performing a legal abortion with consent or medical practitioners who didn’t know of the pregnancy.

In committee testimony last month, Nicole Clegg, vice president of public policy for Planned Parenthood of Northern New England, said the bill isn’t necessary and “seeks to alter the existing legal framework with the intention of undermining the foundations of reproductive rights for women.”

Rep. Sheldon Hanington, R-Lincoln, said his experience has taught him that it’s a mistake to think of a fetus as anything less than human.

He said he had to return home from overseas years ago after his wife miscarried at 20 weeks. “Don’t tell me a fetus is not a baby until you’ve carried that baby in your hand, about six inches long, and you’ve had to bury him,” Hanington said.


“Every life is precious,” the lawmaker told colleagues. “If somebody takes an unborn baby out of this world, they deserve everything that they get.”

For the Legislature to reject the measure, said Rep. Roger Reed, R-Carmel, would be to shirk its duty to Mainers.

In testimony before the Judiciary Committee, though, legislators heard from many who argued that approving the measure would be a blow to women.

The Maine Women’s Lobby’s director of public policy, Danna Hayes, told lawmakers last month that if the bill were to pass it would establish in law that a viable fetus “has rights independent of those of the woman whose body is sustaining it.”

“This would create an undeniable pathway toward the concept of fetal personhood. And ultimately, the restrictions on access to reproductive health (services) it implicitly suggests are not what help pregnant women or those who experience tragic pregnancy loss,” she said.

Trish Morin of Maine Right to Life said, though, that the proposal is not “an anti-choice bill. On the contrary, this bill supports women who have already made their choice.”


“Whether you are pro-life or pro-choice, this bill is common ground and common sense for Maine women and their families,” she said.

If the measure is adopted, it doesn’t appear it would have much impact on insurance costs.

In committee, the president of the Yarmouth-based Patriot Insurance Co., Lincoln Merrill Jr., said his company’s 50,000 policyholders already have insurance that encompasses the proposal.

The most common cause of a pregnant woman losing an unborn child, he said, is from an automobile accident.

Because similar laws are in place today in over 80 percent of states, regular policies take the possible cost into account, Merrill said.

In the majority of states that allow wrongful death suits for the deaths of unborn children, courts have imposed the standard. Legislatures have typically held back from taking action on a potentially explosive political issue.

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