AUGUSTA — Lawmakers heard conflicting testimony Tuesday on a bill that would add Maine to the dozens of states where a family can pursue a wrongful-death lawsuit when an “unborn viable fetus” dies.

Supporters described the bill as an avenue for family members to seek financial damages when a fetus dies from “a wrongful act, neglect or default” by a driver, manufacturer, doctor or other person. But opponents decried the bill as, at best, unnecessary under current Maine law and, at worst, merely the latest attempt by anti-abortion groups to chip away at a woman’s right to terminate a pregnancy.

“It is model legislation that is being promoted around the country that seeks to find a new way to bring challenges to safe and legal abortions,” said Alison Beyea, executive director of the American Civil Liberties Union of Maine.

The bill, L.D. 327, would allow families to seek damages in probate court for the wrongful death of a viable fetus, which is defined as a fetus that has reached at least 24 weeks of gestation. If passed, Maine would join the 40 states – including every other New England state – that provide surviving family members with a way to seek financial recourse for a viable fetus killed because of the neglect or wrongdoing of others.

“I think it is time for Maine to do this,” said Rep. Elspeth Espling, R-New Gloucester, the bill’s sponsor and the assistant minority leader in the Maine House. “I think it is reasonable. I think it is more than reasonable.”

Supporters included insurance companies Cross Insurance and Patriot Insurance Co., as well as the Roman Catholic Diocese of Portland, the Maine Right To Life Committee and the Christian Civic League of Maine. Several speakers pointed out that a pregnant woman – or her family – would be able to seek damages for a viable fetus killed by a drunken driver in New Hampshire yet would be barred from seeking wrongful death compensation if the crash happened just across the border in Maine.


“I see the injury or death of an unborn child in a car accident to be negligence and as compensable as any other injury or death our policyholders cause,” said Lincoln Merrill Jr., president and CEO of Patriot Insurance, which offers coverage in New Hampshire, Vermont and other states with similar laws. “I believe we have a responsibility as an insurance company to pay for the negligence our policyholders cause to those loving parents who are anxiously waiting for the birth of their child.”

The measure specifies that families would not be able to seek wrongful death damages from the mother of a fetus that dies or from abortion providers who are performing the procedure within the law and with consent. It also prohibits wrongful death actions against health care professionals who do not know a woman is pregnant and unwittingly cause the death of a viable fetus.

But opponents said the bill created new legal rights by granting “personhood” to a fetus, opening the door for future attempts to assert the rights of fetuses over the right of a woman to terminate a pregnancy. They also said the bill’s language could still result in lawsuits against abortion providers – who must prove informed consent – and against doctors who treat pregnant women, despite existing laws that allow patients to recover damages for professional negligence.

Andrea Irwin, executive director of Bangor’s Mabel Wadsworth Center, where women can receive prenatal care as well as abortions, said the bill would expose them to additional liability “without clear evidence that it would further the safety and quality of care.” And Dr. Connie Adler, a family physician in Farmington, said the bill’s assumption that a fetus is viable after 24 weeks was “overly simplistic and inaccurate” because viability is so case-specific at that point in a pregnancy. A fetus is generally considered viable if it has more than a 50 percent likelihood of survival outside of the womb.

“To award a legal right to every fetus that has reached 24 weeks of gestation would be a gross overgeneralization of the science,” said Adler.

The ACLU’s Beyea said Maine law already provides tougher penalties for attacks on women whom the perpetrator knows to be pregnant. And she said the proposal in Maine is more sweeping than those in many other states.

The Maine Women’s Lobby and other organizations portrayed the bill as an attempt to bestow “personhood status” on a fetus as part of a national anti-abortion campaign. Anticipating such arguments, bill supporters argued that the measure has nothing to do with abortion and everything to do with justice for grieving families.

“This bill supports women who have already made their choice” to keep their child, said Trish Morin with the Maine Right to Life Committee. “Whether you are pro-life or pro-choice, this bill is common ground and common sense for Maine women and their families.”

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