Crossover update: FLPA amendments pending; conscience bill and buffer zone repeal heading to Senate

Heading into April with the New Hampshire General Court, three bills are left that affect the Fetal Life Protection Act. Bills on buffer zone repeal and medical conscience rights are moving to the Senate as well.

March 31 marked “crossover,” when all New Hampshire House and Senate bills had to be dealt with in their originating chamber. Next step: hearings in the other chamber, with successful House bills heading to Senate committees and vice versa.

Fetal Life Protection Act

There’s been no more confusing bundle of bills than the multiple attempts to repeal or amend the Fetal Life Protection Act (FLPA), New Hampshire’s new 24-week abortion limitation. Post-crossover, there are three bills addressing FLPA, and one of them is not like the others. Don’t blame me for complicating things; I give full credit for that to our honorable elected representatives in Concord.

• HB 1609, amended to add a fetal-anomaly exception to the fetal life protection act: on its way to the Senate. HB 1609 started out as an attempt by a handful of Republicans to water down FLPA by adding exceptions and eliminating the ultrasound provision which would serve as a way to confirm gestational age. The full House in a close vote passed the bill, but then the bill went back for a second round of House action in the Finance Committee due to the bill’s fiscal note (the “FN” suffix you’ll find if you look for the bill on the General Court website). On March 31, the House adopted a Finance-proposed amendment to add an exception for “fetal abnormalities incompatible with life,” after hearing from a Brookline mother who is pregnant with twins and has been advised by her doctor that one of the twins “will not survive outside the womb and potentially threatens the life of the other [twin].” (See Union Leader, April 1/2, 2022, page 3.) The amendment also clarifies that ultrasound is only required when there’s reason to believe a fetus may be at 24 or more weeks’ gestation. According to the Union Leader coverage, the eugenic abortion exception elicited a positive response from Planned Parenthood of Northern New England. The March 31 House vote to accept the committee amendment was overwhelming, 319-25, and it was a division vote so that voters can’t see who voted how. A Senate hearing on the bill has not yet been scheduled.
• HB 1673 as amended in the House: reason to cheer. HB 1673 will have a hearing in the Senate Judiciary Committee on April 7 at 10:00 a.m. in room 100 of the State House. What you can do: sign in NOW with the Senate Judiciary Committee, before April 7, in support of HB 1673, which the committee will get in the House-amended version. How did HB 1673 get through the House? On a roller coaster. Originally introduced as a bill to repeal FLPA altogether, the full House instead amended the bill – basically re-writing it – to turn it into a clarification of FLPA’s ultrasound language, while leaving the rest of FLPA intact. This excellent move by the House was done on a voice vote, but just a few minutes earlier the House had cast a useful roll call vote when it rejected an attempted amendment offered by abortion advocates. That was a close one: 163-165. On that particular roll call, a Nay vote was a good one.
• SB 399 as amended in the Senate: cheer again. SB 399 will get a House Judiciary hearing in Representatives Hall at 9:00 a.m. on April 13. What you can do: sign in NOW with the House Judiciary Committee, before April 13, in support of SB 399, which will come to the committee in the Senate-amended version. Unlike the Senate online sign-in form, the House form allows you to attach testimony. This bill mirrors HB 1673 in both its original and amended versions. It started out as an effort to repeal FLPA. It was amended to clarify the FLPA’s ultrasound language. The Senate vote was 14-10, straight party line: all Republicans supported keeping FLPA while clarifying the ultrasound language. No Democrat was willing to support that.

Buffer zone repeal and conscience protections: on to the Senate

HB 1080, protecting medical conscience rights, passed the House by a vote of 175-165. Now, the bill will go to the Senate Health and Human Services Committee, date and time TBA.

Likewise, HB 1625, repeal of the buffer zone law, passed the House. I’m delighted that the outrageous committee report on the bill fell flat.The margin of victory was slim: 168-162. Not a single Democrat voted to repeal the unenforceable buffer zone law. Most Republicans did, with eight exceptions. I leave them to their constituents. Next stop for the bill: Senate Judiciary, date and time TBA.

Other bills tabled, unlikely to come back

CACR 18, which would have used the New Hampshire constitution to protect abortion, was tabled by the House on a 175-157 vote. Hooray for anything that derailed this constitutional amendment. It would take a two-thirds vote to take up the measure again (same for the other tabled bills mentioned below), and that’s extremely unlikely.

HB 1477, the heartbeat bill that would have barred abortions after detection of fetal heartbeat, was tabled in the House as well. Vote was 185-143.

Finally, HB 1674, relative to “reproductive rights,” was tabled by a 306-19 House vote – another division vote instead of a roll call, leaving voters at a loss to see who sent this bill to its well-deserved fate. Numbers like that mean that even abortion advocates decided to back away from this measure that could conceivably have allowed a “private right of action” in court against anyone accused of “restrict[ing] or interfer[ing]” with an abortion. Someone praying on a sidewalk, for example? Apparently, the House decided not to find out. Good decision.

Born-alive bill: party-line vote in Senate committee

The New Hampshire Senate Judiciary Committee voted 3-2 on Tuesday to recommend “ought to pass” on a HB 233, a bill to establish a committee to study the right of born-alive children to “appropriate and reasonable medical treatment.” The full Senate is expected to vote on the recommendation in January.

The bill being recommended to the full Senate looks a lot different from the bill as passed by the House early this year.

The vote was along party lines, with Republicans Sharon Carson (R-Londonderry), Harold French (R-Franklin), and William Gannon (R-Sandown) voting in favor. Democrats Rebecca Whitley of Concord and Thomas Sherman of Rye voted no.

Re-referred: how the bill was carried over from earlier this year

You may recall that HB 233 in its original version prompted a walkout by pro-abortion House members last winter. (See my report “House passes two life-issue bills” from February 24.) The walkout followed the failure of motions to kill and to table the born-alive legislation. A majority of the reps who stayed at their posts eventually voted Ought to Pass on the bill.

The original version of HB 233, sponsored by Reps. Jordan Ulery (R-Hudson) and Walt Stapleton (R-Claremont), passed the House without amendment. Then it went to the Senate, which decided to “re-refer” the bill to the Senate Judiciary committee. This is the Senate’s version of what the House calls “retaining” a bill: holding it over for more consideration in committee, delaying a vote by the full chamber until the following year.

And so here we are: HB 233 went back to the Senate committee, which cast its vote this week to recommend that the full Senate vote next month to pass an amended version of the bill.

Amending the bill

What the Senate Judiciary Committee decided to do on December 14 was recommend amending the bill, changing it from born-alive protection to studying born-alive protection. That amendment, #2292s, was co-sponsored by Sens. Carson and Regina Birdsell (R-Hampstead). It failed to attract support from either of the Democrats on the committee.

Likewise, an amendment by Sen. Birdsell (1023s) to clarify HB 233’s language resulted in another 3-2 committee split, although that amendment was rendered moot by the later vote to change the bill to a study committee.

Sen. Birdsell’s amendment was actually prepared back in March for the Senate to consider. At the time, HB 233’s opponents decried the bill as an attempt to force doctors to tear terminally-ill newborns away from their parents in order to administer futile treatment. The Birdsell amendment was an attempt to allay those fears. Today, committee Democrats voted against the Birdsell amendment and then spoke as if it had never been proposed in the first place.

“Inflammatory…insulting to our medical providers”

Before this week’s committee vote, Senators Whitley and Sherman spoke at some length about their opposition to the bill. Their arguments were along these lines: there’s no such thing as a child born alive after attempted abortion; claiming otherwise is an insult to medical personnel; and the bill whether intentionally or not would force doctors to harm grieving families by imposing extraordinary medical interventions on newborns born in a condition likely to result in neonatal death.

The latter argument is likely to be dragged out yet again before the Senate vote in January, despite the Birdsell amendment that made clear the penalties in the original bill would have applied only to health care providers who withhold treatment from a born-alive child with the intention of causing or hastening the child’s death.

That leaves the no-such-thing argument. When Senator Gannon asked Senator Sherman about children surviving attempted abortion, Sherman said “that’s not the way abortion happens….That’s not something that happens in the state.” Senator Whitley added that claims that abortion survivors exist is “a false narrative,” “inflammatory,” and “insulting to our medical providers….In an abortion, a baby is not born alive.”

Noting that the hearing earlier this year on HB 233 included medical professionals objecting to the bill, Whitley expressed concern that supporting born-alive legislation would send a message to providers “that we don’t believe them.”

I can’t help but think that our state’s failure to collect and report on abortion statistics is a factor here. As long as there are no reported abortion complications, including reports on any children born alive after attempted abortion, abortion-friendly legislators can aver that such children are imaginary.

Ignoring abortion survivors

I don’t know if abortion survivors could persuade any skeptical legislators. Probably not, unless the survivor were a New Hampshire resident, and even then I expect the survivor’s claims would be met with resistance.

Melissa Ohden, a survivor herself, is dedicated to sharing her story and to giving other survivors a voice. She and other survivors have testified before Congress and state legislatures. They are advocates for legislation that protects children born alive after attempted abortion. Those advocates can’t be everywhere. I wish they could. Nothing short of a personal encounter with a survivor will pry some legislators away from the “false narrative” claim to which they cling.

Members of the Abortion Survivors Network do what they can. Some have put their stories on video, where anyone – even a legislator – can view them.

I love how Gianna Jessen, an abortion survivor living with cerebral palsy, put it to a Congressional committee: “if abortion is about women’s rights, what were mine?”

Senate to vote on “study”

The amended version of HB 233 to be voted on in the Senate sets up a legislative committee to “study the right of any infant born alive to medically appropriate and reasonable care and treatment.” There are three specified duties for such a committee, according to the amendment: consider any potential conflicts with ethics and end of life care standards; consider any potential conflicts with the Neonatal Resuscitation Program, and examine particular state laws (RSA 329:43 through 329:50) for potential conflicts.

There’s no specified duty to ensure that abortion survivors be protected.

Maybe that’s what half a loaf looks like this year: better than nothing. I believe legislators already know how they’ll vote on born-alive bills, regardless of amendments or language or attempts to find common ground. Their press releases and op-eds are probably already drafted. The only question is whether someone will buck his or her party when the bill comes to the floor.

On the home front: what you can do today

There’s one thing every pro-life Granite Stater can do today on the public policy side of pro-life work: contact your state representatives and urge them to stand by the 24-week abortion restriction that was included in the recently-passed state budget.

Never mind what Texas is doing, or what the Supreme Court is doing, or what kind of crazy social media posts you’re seeing about abortion policy anywhere in the United States. For the moment, seeing to our own state’s business is of paramount concern.

Hard-fought gains in jeopardy

You’ll recall that earlier in 2021, the House and Senate passed a budget that included the Fetal Life Protection Act. The Governor signed the budget. While the budget itself went into effect July 1, the Fetal Life Protection Act (which I’ll refer to as the 24-week law) is scheduled to take effect next January 1.

Look at HB 2, page 14 line 14 to page 19 line 1. There’s the 24-week abortion limit.

While happy to see New Hampshire’s Wild-West abortion policy finally come to an end (or at least a scheduled end), I was unhappy that it came via a budget provision rather than as a freestanding bill. I feared that the next budget go-round two years hence would find the Fetal Life Protection Act repealed. An attorney far better versed than I in such matters assured me my fears were misplaced.

Thanks to a handful of legislators, my fears are back: the risk is not repeal in two years, but weakening or gutting of the law as early as 2022.

Beginning next Monday, September 14, New Hampshire House members will have five days to file their intent to introduce 2022 legislation. Senators will follow suit in October. These are the LSRs, or legislative service requests. Anyone who wants to revise or repeal a law can file an LSR to do so. The 24-week law is vulnerable to attack.

Where your support is most needed

Every one of your elected officials needs to know that you expect pro-life policy to be a priority. Even Democratic officeholders who are staunchly united behind unrestricted abortion ought to hear from you; don’t ever let them say they don’t know where you stand.

Conversations I’m having, though, point to Republicans as the officeholders most in need of your messages. Specifically, New Hampshire House Republicans need to know their constituents are watching the 24-week law carefully.

Yes, Republicans have the current legislative majority in Concord. However, despite state and national GOP platform planks, there are GOP reps who consider the right to life to be negotiable or secondary or irrelevant. With a narrow majority, it would only take a few GOP reps joining with Dems to undermine the 24-week law.

There are Republican reps who can be counted on to fight like tigers over the Second Amendment or taxation or the governor’s emergency powers, but who wish all this abortion business would just go away.

It won’t go away. Not a chance. Human rights – even achingly small steps towards those rights – are like that.

You don’t need to ask your GOP reps whether or not they like the 24-week law, although there could be some constructive conversations if you choose to start one. All you need to tell them is that you want them to stand by the 24-week law and refuse to water it down.

A Republican rep who is weak or uncommitted on the life issues will be vulnerable to scare tactics and misinformation by abortion advocates in both parties. You can counter that by encouraging your reps to stand by the 24-week law if an attempt is made to weaken it.

Do not look to Republican leadership or Governor Sununu to do your work for you. Print out those words and hang them on your wall for inspiration if necessary.

Contacting your House reps

Need to bookmark the House roster so you can look up your representatives? Here’s the link: who’s my legislator? You can always go to the General Court website (gencourt.state.nh.us) for information on a representative, senator, or bill. Brief phone calls are best, keeping in mind that New Hampshire reps don’t have offices and that your call will go to their cell phones or house landlines. Emails are better than nothing.

With courtesy and conviction and brevity, urge your reps to stand by the Fetal Life Protection Act as passed in HB 2. Concentrate on GOP reps, if you’re pressed for time. There’s no need to weaken the law before it goes into effect.

Why contact House members now? Because they’re going to file LSRs next week. Why House members instead of senators? Because the Senate won’t be filing LSRs until later.

New Hampshire has been a home to abortion extremism long enough. Help your reps develop the courage and confidence to move in a healthier direction.

There are plenty of headlines and noise elsewhere about what’s going on in other states. Forget all that for now. There’s work to be done here at home.

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From Cornerstone: FAQs about the Fetal Life Protection Act, Sununu Wavering on Law

From NH Journal, an op-ed by Rep. Beth Folsom (R-Wentworth): I Sponsored the Fetal Life Protection Act; Stop Lying About What’s In It

Pro-life policies in state budget: victory with an expiration date (UPDATED)

Update, 7/8/21: I am indebted to an attorney well-versed in pro-life policy who called me out on claiming that the language cited below would expire in two years. Instead, I’ll try for more clarity: it’s possible that it might not survive the next budget process. More about that below, in boldface.

For the first time since 1997, New Hampshire has a law limiting late-term abortion. Well, we’ll have one as of next January 1, and it may only be good – I said “may” – until the expiration of the budget on June 30, 2023. Still, after nearly a quarter-century, the Granite State will move ahead past the era of unregulated abortion.

I wondered if flipping the House and Senate would make a difference. Turns out it did.

It has taken me a couple of weeks to process this news. It’s stunning to me, as someone who was an activist even before 1997, to see this victory. Our pro-choice governor kept the word he gave in 2016. Pro-life reps worked to get pro-life language into the budget, after the Senate stalled a freestanding bill that would have done the job. Some pro-life budget conferees – who were Republicans, as it happens – wouldn’t let the provision be tossed out during budget negotiations.

We still don’t have abortion statistics, or a requirement that only medical personnel provide abortions (remember that the next time someone tells you abortion is a private “medical” decision), or conscience protection for health care workers who choose not to participate in the direct intentional termination of human life.

We can bet that the pro-life provisions in this budget will be up for debate and rejection in two years when the next budget is crafted. We can bet that the people promoting unregulated abortion will be fighting back, and in fact are doing so already.

So who wants it more? Do pro-life Granite Staters want to build on this victory?

State budget conferees restore abortion funding restriction

House and Senate conferees working on the New Hampshire state budget for 2022-23 have agreed to include a restriction on abortion funding, according to news reports. The compromise language adds a 24-week limit on abortions.