Uncertain future for 4 N.H. bills limiting mid-term & late-term abortions

In New Hampshire, abortion is legal throughout all nine months of pregnancy. The House will vote on four bills next week that attempt to change that. None is likely to pass, coming before the same legislative body that recently rejected a bill to protect children born alive after attempted abortion.

The bills, and the recommendations from the House Judiciary Committee:

  • HB 1328, limiting pregnancy terminations to pregnancies of 20 weeks or less. Committee vote: 11-9 for “inexpedient to legislate” (ITL).
  • HB 1623-FN, prohibiting an abortion based on genetic abnormalities. Committee vote: 14-5 ITL.
  • HB 1625-FN, relative to banning abortion after viability. Committee vote: ought to pass (OTP) with amendment, 9-8.
  • HB 1636-FN, prohibiting abortions once an unborn child can feel pain. The bill will go to the full House without recommendation, after the committee tied 9-9 on an OTP motion.

The House will convene at 9 a.m. on March 9, and  will probably meet on March 10 as well due to the heavy load of bills awaiting action.

From the House Calendar: the committee reports on each bill

These reports are from House Calendar #14, beginning on page 58. These summaries, called “blurbs,” are the only information some reps will have before voting on these bills, unless they hear from constituents. Any reference to abortion statistics in these reports is debatable, since New Hampshire does not mandate abortion reporting. Worth noting: Rep. Hagan, who wrote the report supporting HB 1328, is a physician.

HB 1328, restricting post-20-week abortions

Rep. Timothy Horrigan for the Majority of Judiciary, Inexpedient to Legislate: This bill as introduced would have banned all abortions after 20 weeks of pregnancy. It would have eliminated the option for New Hampshire women to legally terminate a pregnancy after the middle of the second trimester. This represents unwarranted government interference with women’s reproductive decisions and with the practice of medicine. There are also numerous legal and medical flaws with this bill. It threatens women’s health by banning abortion even when serious medical conditions jeopardize a woman’s health. While the bill does have very narrow exceptions, they are inadequate to protect women’s health and safety. For example, women with cancer, diabetes, high blood pressure, and epilepsy or other seizure disorders may face dangerous complications at or past week 20 that can put their health in serious jeopardy. Abortion after 20 weeks in pregnancy is extremely rare: only one percent of women have abortions after 20 weeks. When it does happen, it is typically because of a heartbreaking and
tragic situation where a woman and her doctor need every medical option available. These very often involve rare, severe fetal anomalies which are not detectable before 20 weeks.

Rep. Joseph Hagan for the Minority of Judiciary, Ought to Pass: Roe v. Wade stated that subsequent to viability, the state, in promoting its interest in human life, may, if it chooses, regulate and even proscribe (ban) abortion. This bill would ban abortions after viability except when life and health of the mother is at risk or condition of the fetus demands removal for the uterus. Over the last decade, according to the Gallup Poll, greater than 80% of the American people agree that abortion should be banned after viability. This bill is constitutional, compassionate and supported by the majority of the American people.

HB 1623, prohibiting abortion for genetic abnormalities

Rep. Paul Berch for the Majority of Judiciary, Inexpedient to Legislate: This bill seeks to ban abortions based upon prenatal genetic testing. The committee understood the difficult decisions when women and their partners are confronted with a prenatal diagnosis of serious genetic defects. Understanding that women make different decisions based upon their own values, abilities and wisdom, the bipartisan majority of the committee felt it was the right of New Hampshire women to make these difficult decisions themselves, in consultation with medical professionals, rather than by politicians. By making doctors into criminals in certain circumstances, there was a concern that women would be reluctant to have full and candid conversations, jeopardizing doctor-patient relationships. The committee felt that some of the provisions of this bill were of doubtful constitutionality, and other provisions would not work in real life circumstances.

Rep. Kurt Wuelper for the Minority of Judiciary, Ought to Pass: The minority believes that a baby should not be aborted just because she has a genetic marker for an inherited abnormality. Children who carry markers for Down syndrome should be allowed to grow and become the person they can, not killed by abortion as roughly 90% of those so diagnosed are today. We believe every child has the inalienable right to life and aborting them because of a genetic screening is the ultimate discrimination and should be illegal.

HB 1625, ban on post-viability abortions

Rep. Kurt Wuelper for the Majority of Judiciary, Ought to Pass with Amendment: This bill as amended prohibits abortions on babies after viability, except when necessary to save the life of the mother or to protect her from “serious risk of substantial and irreversible physical impairment of major bodily function.” This language has been vetted through the US Supreme Court and has been in effect in other states for many years. Ever since Roe v. Wade was decided, states have been allowed to prohibit these late term abortions, and at least 17 other states already do. The majority believes that babies who can live outside the mother’s womb should be given every opportunity to do so. This bill takes great care to protect the mother’s well-being and, in case of criminal proceedings, her anonymity, while doing all we can to give babies the chance to live the lives of which they are capable.

Rep. David Woodbury for the Minority of Judiciary, Inexpedient to Legislate: This bill, as amended, seeks to limit and criminalize post-viability abortion, notwithstanding that such abortions are not performed in this state, at least presently. The main defects in this bill are that a second physician’s opinion must be obtained if such an abortion is to be performed to protect the life or health of the mother. Such second physician may not be available or willing, with tragic results to mother or child. Secondly, there are onerous and intrusive records to be kept for no discernable reason. Rather than legislate the practice of medicine, it is better to leave the practice of medicine to those best able to do it.

HB 1636, the pain-capable act (tie vote, headed to House floor without recommendation)

Statement in support of Ought to Pass, by Rep. Kurt Wuelper:
This bill prohibits abortions after the child can feel pain. Per the US Supreme Court, states may regulate procedures when the medical community is in doubt as they are regarding when the pre-born can feel pain. Given the possibility that babies could suffer severe pain at this stage of life we believe the state should err on the side of protecting them from it. Knowing that anesthesia is common in surgery performed on babies in the womb, we believe that those babies who might experience pain even more than born people should be protected from abortion. Since medical research has indicated that babies may feel pain as early as 20 weeks of age, this bill prohibits abortions after that age. Despite the fact similar laws in the Ninth Circuit have been ruled unconstitutional, we believe that the US Supreme Court might accept a new standard, such as this one, for when states can prohibit abortion if a federal appeals court should do so.

Statement in support of Inexpedient to Legislate, by Rep. Paul Berch: This bill seeks to ban abortions at or after 20 weeks except in the case of a medical emergency. It seeks to justify this restriction based upon a claim that a fetus can feel pain at that point in time, a belief disputed by many in the medical profession. The committee heard testimony that this bill is identical in all important respects to similar laws that have been held to be unconstitutional, including a decision by the United States Supreme Court on January 13, 2014 not to lift a block imposed by the Ninth Circuit of a similar law. Not only did the Supreme Court refuse to allow this kind of statute to be enforced, it also refused to reconsider Roe v. Wade and similar decisions post-Wade requiring “viability” and not gestational age to be the only critical factor in determining constitutionality of this kind of legislation. Other federal and state courts have similarly struck down 20 week bans. Testimony was also received that this bill’s reporting requirements impermissibly invade the privacy rights of women; that the health exception as drafted has constitutional issues; and that women faced with the serious and often dangerous complications of late term problems need the best health care possible from their medical providers.

The March 9 House session will be livestreamed. 

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