Concerns Over Safe Harbor Exceptions in North Dakota Personhood Bill

February 22, 2011
Feast of The Chair of St. Peter

Dear all,

North Dakota’s HB 1450 has been highly touted for bringing into law a new definition of personhood. (Current version is here.) It does so by adding a definition of Human Being and incorporating that into the definition of Person in the general definition section of the existing ND Criminal Code. The legislation, however, does not stop with the new definition. It goes on to add a number of curious and problematic provisions to that same Criminal Code. In order to better understand those add-on provisions we should describe the state of that Code before their addition.

Chapter 12.1-16-01 through 03 define criminal murder, manslaughter, and negligent homicide. 16-04 through 08 are additional provisions criminalizing assisting or causing death by suicide. (Chapter 12 1-16 Homicide is here) 17.1-01 through 08 define criminal offenses of murder, etc. against unborn children. (Chapter 12.1-17.1 Offenses Against Unborn Children is here)

Section 1 of HB 1450 adds the definition of human being “…at every stage of human development” into the existing Criminal Code. LifeTree leaves to the experts on human embryology whether this is the best possible definition of the term. It is Sections 2 and 3 of HB 1450 which introduce four “safe harbor” exceptions from criminal prosecution into the law that LifeTree would like to comment on. The first is understandable. The other 3 are curious at best. (A “safe harbor” exception is a permissive phrase which identifies conduct which cannot be prosecuted when that same conduct would otherwise be considered criminal under the general definition of the crime in the Code.)

It is important to understand is that the statutory treatment of assisted suicide in the existing Criminal Code remains unchanged by the new law. The existing Code already has its “safe harbor” exception in a provision which says it does “not preclude the use of medications or procedures necessary to relieve pain…if not intentionally or knowingly prescribed or administered to cause the death of a person.” Nor does that part of the existing Code “preclude the withholding or withdrawing of life-prolonging treatment pursuant to state or federal law.” These exceptions are common in such legislation and are supported by “third path” euthanasia advocates as their price for support of laws which criminalize assisted suicide. LifeTree has opposed these criminal code assisted suicide exceptions for many years. (See presentation entitled, “Repackaging Death as Life—The Third Path to Imposed Death”)

The four exceptions in Section 2 of the current first engrossment of ND House Bill 1450 apply to the historic criminal offenses of murder, manslaughter and negligent homicide. Exception “a” says essentially that when a physician, licensed per ND statutes, provides medical treatment for a life-threatening condition and there is accidental or unintentional injury to any person, that physician cannot be charged with a crime. This is an understandable clarification which the medical community might want when a legislature is introducing a broad definition of human being into the murder and manslaughter Chapter of its Criminal Code.

However, exception “b” in HB 1450 goes on to say that “legitimate medical treatment of life-threatening conditions” not intended to harm but which “has the foreseeable effect of ending a person’s life” cannot be charged as murder, manslaughter, or negligent homicide. Historically, forseeability means that the actor “knew or should have known” the consequence of his conduct and could be held responsible for its consequences.

“Third path” advocates whose roots are directly traced to the euthanasia movement in this country have long sought similar exception language in end-of-life legislation to shield their activities from criminal responsibility. Much more of the history of this movement can be found on LifeTree’s timeline—long version.

An example of what they often seek can be found in section 06 of the already existing North Dakota Criminal Code directed at assisted suicide. Although the media attention surrounding HB 1450 describes its purpose as protecting the unborn, the language in this exception “b” will shield the conduct of those who would impose death on the elderly as well as on the unborn. By adding this exception to its criminal code, North Dakota will add a safe harbor from prosecution for murder of the elderly to its already existing safe harbor from prosecution for assisting in suicide.

It is well-known that in vitro fertilization procedures often require embryos to be killed. Exception “c” in HB 1450 would seem to have within its text a deep contradiction in that it says “the creation of a new human being through in vitro fertilization” is excepted from prosecution but then goes on to say that the section does not “excuse or justify causing the death of a human being.” Taken together, it is difficult to understand what this language means or how it will ultimately be applied.

Exception “d” in HB 1450 gives a pass to contraception administered “before a clinically diagnosable pregnancy of a woman.” It is admitted that morning after pills can and do kill human beings on their way to implantation in the mother’s womb. This has to be a major negative when evaluating a statute so widely touted as protecting all human life.

These same four exceptions are also engrafted onto 12.1-17 of the existing Criminal Code by Section 3 of HB 1450. North Dakota already has in its Criminal Code provisions defining and providing for criminal prosecution of killing an unborn child by means of violence to the child or to the mother. There are 8 sub parts in this Chapter of the already existing Criminal Code prior to this proposed change. By its terms the new statute says that Sections 12.1-17-01 through-03 (which criminalize murder and manslaughter of an unborn child) do not apply in the same four “safe harbor” scenarios described above.

Section 12.1-17-07 in the already existing Criminal Code provides an explicit exception from criminal prosecution for causing death of an unborn child if committed during an abortion done by or under the supervision of a licensed physician. Some have said that HB 1450 will close down abortion facilities in North Dakota, but its text as presently posted does not appear to eliminate this 07 language from the North Dakota Criminal Code.

The whole exercise is very curious. One can see the hand of interests that normally oppose pro-life legislation trading their support for the Human Being definition at the price of an exception which will negate the value of the Human Being definition. The net effect in the end is likely to advance what are generally viewed as culture of death objectives.

We had a similar experience in North Carolina some years ago during a legislative session in which a bill to criminalize assisted suicide was introduced that contained a number of “third path” euthanasia safe harbor exceptions. When LifeTree fought against the exceptions and eventually persuaded the committee chair to propose a redraft which eliminated most of them, the culture of death lobbyists who had previously supported the bill withdrew their support and the idea and the legislation died in committee.

HB 1450 has passed the North Dakota House and will be considered by its Senate in the very near future. If legislation is to be truly Pro-Life, its advocates must firmly refuse to permit culture of death exceptions, including back door “safe harbors” achieved with end-of-life language, which dilute to the point of elimination whatever positive effect the newly enacted definition of Human Being might otherwise achieve, both at the beginning and at the end of life. We should not delude ourselves that we are making progress by making compromises which permit the enactment of bills such as North Dakota HB 1450.

Human life is a sacred gift from God. The third chapter in John Paul II’s encyclical letter on the Gospel of Life makes it very clear that “laws which legitimize the direct killing of innocent human beings through abortion or euthanasia are in complete opposition to the inviolable right to life proper to every individual.” He says further that “it is therefore never licit…to take part in a propaganda campaign in favour of such a law or vote for it.” When one comprehends the entirety of North Dakota HB 1450, one cannot campaign or vote for it while remaining faithful to the Gospel of Life.

God bless.

Elizabeth D. Wickham, PhD
Executive Director, LifeTree

Copyright, 2011, EDW
posted 2/22/11