Looking to 2020: State Legislation

More than a thousand bills have piled up, awaiting hearings in the 2020 session of the New Hampshire General Court – or legislature, to use a less exalted term. Another bill to be voted on is a holdover from this year, which deserves your notice.

Anti-Trafficking Bill To Be Voted On In January

The retained bill is HB 201, which will get a House vote in early January. It seeks to increase the allowable penalty for adults buying sex from minors. It should not have been held over – “retained” is the technical term. Passage last spring would have been the right outcome. Survivors of juvenile sex trafficking supported the bill with compelling testimony. One of them will be a familiar name to longtime readers: Darlene Pawlik, who was an absolute showstopper who called out nonsense when she heard it.

I’ll make a long, infuriating story short, with a note that an organization called Decriminalize Sex Work has hired New Hampshire lobbyists to advance its agenda: HB 201 was retained by the House Criminal Justice and Public Safety Committee. After consideration this past fall, the committee voted to recommend Ought to Pass on the bill. The full House is likely to vote on that recommendation on January 8 or 9. Good excuse for contacting your state reps, in my humble opinion: YES on the OTP motion for retained bill HB 201.

Thumbs up to chief sponsor Rep. Linda Massimilla (D-Littleton) and her co-sponsors, and to Rep. Nancy Murphy (D-Merrimack) who wrote the committee OTP recommendation for her colleagues.

No Hearings Yet

For all the bills described below, there are no hearings scheduled yet. Watch this blog and its related Facebook page for updates as the House and Senate calendars are published. As it happens, all these bills will start in the House Judiciary Committee, even if their subject matter might seem to fit better elsewhere. Such decisions are made by finer minds than mine.

Enshrining Abortion Into N.H. Constitution

Watch out for CACR 14. This is a proposed constitutional amendment, which in order to pass will have to get a three-fifths vote in the House, three-fifths in the Senate, and then two-thirds from voters in next November’s general election. The governor has no substantive say in the process. Here we go:

“The right to make personal reproductive medical decisions is inviolate and fundamental to the human condition. Neither the State nor any political subdivision shall infringe upon or unduly inconvenience this right.”

It doesn’t say “abortion.” It doesn’t have to, in order to place abortion squarely into the New Hampshire constitution as a protected right – a right “inviolate and fundamental.”

You’ll forgive me if I shout at you about this one. Silence implies consent to the amendment’s corollary: that there is no inherent “right” to life, only a privilege to be conferred by others. Now that’s discrimination.

Sponsors: Reps. Timothy Smith (D-Manchester), Timothy Horrigan (D-Durham), Catherine Sofikitis (D-Nashua), Sherry Frost (D-Dover), Heidi Hamer (D-Manchester), Chuck Grassie (D-Rochester), Arthur Ellison (D-Concord).

Born-Alive Infants Protection

HB 1675 (chief sponsor Katherine Prudhomme-O’Brien, R-Derry) seeks to assure medically appropriate care and treatment for any infant born alive following an attempted abortion.

The bill would be a step toward making New Hampshire a bit less Gosnell-friendly. I look forward to reporting on who supports it and who opposes it at the hearing.

Assisted Suicide

After two years of trying to “study” assisted suicide via end-of-life related bills, advocates of assisted suicide have come out with a straightforward bill. HB 1659-FN has nine co-sponsors, led by Rep. Catt Sandler (D-Somersworth). The analysis in the heading of the bill says it “allows a mentally competent person who is 18 years of age or older and who has been diagnosed as having a terminal disease by the patient’s attending physician and a consulting physician to request a prescription for medication which will enable the patient to control the time, place, and manner of such patient’s death.”

You might wonder “what’s with the FN in the bill number?” FN means “fiscal note,” and it’s attached to any bill that is expected to cost money. Such bills go to the Finance Committee for a closer look (and a second full-chamber vote) if they pass the full House or Senate after the first committee is done with it.

While we’re on the subject: the Euthanasia Prevention Coalition, whose USA affiliate is headed by former New Hampshire legislator Nancy Elliott, is a good source of information. I’ll cite others as HB 1659 makes its way through the legislative process.

Prenatal Non-Discrimination

The co-sponsors of HB 1678-FN think that Down syndrome, genetic abnormalities, and being an undesired sex shouldn’t call for a death sentence. The bill would prohibit abortions performed solely for one or more of those reasons. Chief sponsor is Rep. Abigail Rooney (R-Milton).

The bill calls for a limited penalty for violations by the abortion provider: liability for damages, and revocation or suspension of medical license if the provider has one. This is not a let’s-jail-abortionists bill. It’ll be interesting to see if anyone tries to say otherwise. Further, no penalty would attach to the mother of the child, and her anonymity in any ensuing civil action would be protected.

Heartbeat Bill

Into this Gosnell-friendly state comes HB 1475-FN, sponsored by Rep. Dave Testerman (R-Franklin) and Rep. Walt Stapleton (R-Claremont). It would prohibit abortions after detection of a fetal heartbeat.

Parental Notification

HB 1640-FN (chief sponsor Rep. Werner Horn, R-Franklin) would repeal the judicial-bypass provision of the New Hampshire law requiring parental notification for minors seeking abortion.

If this bill should pass and be signed by Governor Sununu, it would pose a challenge to U.S. Supreme Court rulings on parental-involvement-in-abortion laws dating back to 1976. See the testimony of Americans United for Life on a Florida parental involvement law from March 2019.

So – ready to roll? I’ve already picked out my favorite parking space near the Legislative Office Building. It’s going to get a workout in 2020.

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. 

Becoming unviable: NH House committee decides Roe didn’t go far enough

Abortion’s legal in New Hampshire throughout pregnancy – early-term, late-term, any-term. Representative Keith Murphy and six co-sponsors have introduced HB 595, a bill to restrict abortion after 21 weeks + 5 days. The bills statement of findings is brief: “Children have been born as early as 21 weeks and 5 days gestation and lived healthy, fulfilling lives; it is the purpose of the state of New Hampshire to assert a compelling state interest in protecting the lives of viable unborn children.” The sponsors might have added that maternal mortality increases with gestational age.

I say God bless the sponsors. They knew they were venturing into tough territory. They sallied forth anyway.

The Judiciary Committee hearing turned up objections: the bill’s “unconstitutional” and could result in litigation against the state (where were those voices when the buffer zone law was being debated?); it’s medically debatable; and it’s tricky to pin down that 21-weeks-5-days point.

Fear not; the Concord legislative sausage-making machine is in good working order. The committee majority proposed an amendment to the bill: the “Viable Fetus Protection Act,” supposedly intended to restrict post-viability abortions without specifying a time in pregnancy.The crowning achievement of their amendment is this: “viability” means “the state of fetal development when the life of the fetus may be continued indefinitely outside the womb naturally” – but then, “the determination of viability and the decision to terminate a pregnancy shall be solely that of the pregnant woman in consultation with her physician.”

Wow. Even Justice Blackmun didn’t go there. In fact, in Roe v. Wade, the Blackmun majority agreed to define viability as “potentially able to live outside the mother’s womb, albeit with artificial aid.” None of this artificial-aid stuff for the majority of the New Hampshire House Judiciary Committee. The viability bill is looking extremely unviable.

The committee amendment defines viability so that some kids with disabilities could never meet the standard, and then it says the mother is the one who decides what viability is anyway. The “consultation with her physician” is a droll, meaningless and unenforceable idea. For good measure, the bill includes an exception “to remove a fetus with severe anomalies incompatible with life.” That refers to disabled preborn children who haven’t died on their own earlier in pregnancy. Sometimes these things need to be helped along, I guess.

That amendment attracted twelve votes in committee. There were seven votes for killing the bill altogether. Will the floor debate bring a proposal to restore the original language? Whatever the flaws in the bill as introduced, at least it didn’t define viability and then throw out the definition three lines later. [Note: on March 12, the House tabled the bill.]

Whatever its fate, HB 595 will not be the last word on late-term abortion in New Hampshire. A conversation’s been started, and no one can shut it down.