April 3, 2009
Bill to restore wrongful death of unborn in civil suits withdrawn; hits political snag
By BRIGID CURTIS AYER (Indiana Catholic Conference)
Good people with good intentions working to create good public policy can be derailed by political wrangling. This year’s wrongful death bill, SB 341, to restore Indiana’s wrongful death law for viable fetuses in civil suits hit a political snag March 23, and was withdrawn by the bill’s sponsor.
Senate Bill 341 co-authored by Sen. Brent Steele (R-Bedford), and Sen. Vaneta Becker (R-Evansville) and sponsored in the House by Rep. Peggy Welch (D-Bloomington) would allow civil suits to be restored to the pre-2002 form, to include the wrongful death or injury of an unborn child which has reached viability. Under the bill, viability is defined as a fetus that could survive outside the womb which is about seven months gestational age.
The bill passed the Senate 47-2. In the House, the bill passed the Public Policy Committee, but when House Sponsor of the bill, Rep. Peggy Welch (D-Bloom-ington), a pro-life Democrat, realized amendments were going to be attached to the bill to make SB 341 a pro-life, political football rather than an effort to correct the immediate problem in the statute, she took the ball out of the game by withdrawing the bill.
Among those who work under the statehouse dome, a common maneuver of the political game is the practice by both caucuses to offer amendments which may either kill legislation, or to get lawmakers to take a recorded vote on politically controversial language which can later be used against them in election years.
Second reading amendments were filed in the House to amend SB 341 some of which would have a child defined as an unborn fetus at any stage of pregnancy rather than at viability which is currently in the bill.
“The purpose of the bill is to restore legislative intent of the definition of a child for the purposes of wrongful death civil suits which was changed by a 2002 ruling by the Indiana Supreme Court in the Bolin v. Wingert decision,” said Welch. “Basically in [the] Bolin [de-cision], the Indiana Supreme Court said that they didn’t believe the statute was clear regarding the definition of a child for civil wrongful death cases. They ruled that the definition of a child, for the purposes of a wrongful death civil suit, must be one who had taken a breath.”
The proposed legislation addressing fetal death was prompted by an incident that occurred in Indianapolis in April 2008 where a bank teller who was pregnant with twins was shot during an attempted bank robbery. She survived the gunshot wound, her twins did not. The woman was five months pregnant.
“In the situation with the bank teller who was carrying twins that died, where the one twin took a breath, it would have been considered a child, the other didn’t, so it couldn’t be considered a child in a civil wrongful death suit,” said Welch. “We are trying to move back to the point of pre-Bolin which was a hundred year tradition and precedent of recognizing a viable fetus as a child for the purpose being a party in a wrongful death suit.”
In 1987 the legislature while revising and updating civil suit statutes defined the child as an unmarried individual, without dependents, and who is less than 20 years of age. Prior to 1987 it was commonly understood, accepted and supported in case law that a child in wrongful death suits included a viable fetus. The legislature did not intend to exclude the viable fetus. However, be-cause the legislature did not explicitly include viable fetus in the definition, the Court did believe it could act where the legislature had not.
In 2002, Indiana Supreme Court’s ruling in Bolin v. Wingert interpreted the definition of a child as one that had taken a breath. This ruling came about as a result of the lawsuit filed when a car accident involving Rebecca Bolin, who was eight to ten weeks pregnant, suffered a miscarriage. When the Bolin couple filed suit under Indiana’s wrongful death code for damages to their unborn child, the trial court found they had no claim under current statute. When the Bolin’s appealed their case to the Indiana Supreme Court, the Court looked at the definition of a child and found “the fact that the legislature did not expressly include unborn children within the definition of a ‘child’ in the Child Wrongful Death Statute lends further credence to our conclusion that an eight-to-ten-week old fetus does not meet the statute’s definition of ‘child.’” The ruling stated that the legislature clearly set upper limits for a child, but not lower limits.
According to the Bolin v. Wingert case, the Court based their decision on the fact that in other sections of the Indiana Code (IC) the legislature has enacted protections for unborn children using explicit language. For example, IC 35-42-1-6, enacted 1979, imposes criminal liability for the knowing or intentional termination of a human pregnancy and in IC 35-46-5-1, the legislature made it a crime to traffic in fetal tissue.
Rep. Welch said she is hopeful she can bring the bill back again before the April 29 session adjournment deadline. Indiana Catholic Conference has been working Rep. Welch and is supportive of the legislation.