Bill Text: NH HB1660 | 2012 | Regular Session | Introduced
Bill Title: Relative to abortions after 20 weeks.
Spectrum: Moderate Partisan Bill (Republican 7-1)
Status: (Passed) 2012-04-25 - Senate Refer to Interim Study, Regular Calendar 15Y-8N, Motion Adopted; Senate Journal 11, Pg.412 [HB1660 Detail]
Download: New_Hampshire-2012-HB1660-Introduced.html
HB 1660-FN – AS INTRODUCED
2012 SESSION
01/04
HOUSE BILL 1660-FN
AN ACT relative to abortions after 20 weeks.
SPONSORS: Rep. Willette, Hills 6; Rep. DeLemus, Straf 1; Rep. Hardwick, Hills 2; Rep. K. Roberts, Ches 3; Rep. Gagne, Hills 13; Rep. Hoell, Merr 13; Sen. White, Dist 9; Sen. Groen, Dist 6
This bill establishes the pain-capable unborn child protection act which prevents abortions beyond 20 weeks gestation.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2076
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to abortions after 20 weeks.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Findings.
I. At least by 20 weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.
II. There is substantial evidence that, by 20 weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain.
III. Even before 20 weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children.
IV. It is the purpose of the state of New Hampshire to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
2 New Chapter; Pain-Capable Unborn Child Protection Act. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
PAIN-CAPABLE UNBORN CHILD PROTECTION ACT
132-B:1 Title. This chapter shall be known and may be cited as the Pain-Capable Unborn Child Protection Act.
132-B:2 Definitions. In this chapter:
I. “Abortion” means the use or prescription of any instrument, medicine, drug, or other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy;
II. “Attempt to perform or induce an abortion” means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of this chapter;
III. “Department” means the department of health and human services.
IV. “Fertilization” means the fusion of a human spermatozoon with a human ovum;
V. “Medical emergency” means a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function;
VI. “Postfertilization age” means the age of the unborn child as calculated from the fertilization of the human ovum;
VII. “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved;
VIII. “Physician” means any person licensed to practice medicine and surgery or osteopathic medicine under RSA 329;
IX. “Probable postfertilization age of the unborn child” means what, in reasonable medical judgment, will with reasonable probability be the postfertilization age of the unborn child at the time the abortion is planned to be performed;
X. “Unborn child” or “fetus” each mean an individual organism of the species homo sapiens from fertilization until live birth;
XI. “Woman” means a female human being whether or not she has reached the age of majority.
132-B:3 Determination of Postfertilization Age.
I. Except in the case of a medical emergency which prevents compliance with this section, no abortion shall be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable postfertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, a physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to postfertilization age.
II. Failure by any physician to conform to any requirement of this section constitutes unprofessional conduct under RSA 329.
132-B:4 Abortion Prohibited if Unborn Child is 20 or More Weeks. No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the woman’s unborn child is 20 or more weeks unless, in reasonable medical judgment:
I. She has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function; or
II. It is necessary to preserve the life of an unborn child. No such condition shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function. In such a case, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would another available method. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.
132-B:5 Report Required.
I. Any physician who performs or induces or attempts to perform or induce an abortion shall report to the department, on a schedule and in accordance with rules adopted pursuant to RSA 541-A as follows:
(a) If a determination of probable postfertilization age was made, the probable postfertilization age determined and the method and basis of the determination.
(b) If a determination of probable postfertilization age was not made, the basis of the determination that a medical emergency existed.
(c) If the probable postfertilization age was determined to be 20 or more weeks, the basis of the determination that the pregnant woman had a condition which so complicated her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, or the basis of the determination that it was necessary to preserve the life of an unborn child.
(d) The method used for the abortion and, in the case of an abortion performed when the probable postfertilization age was determined to be 20 or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive or, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would other available methods.
II. By June 30 of each year, the department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in paragraph I. Each such report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed.
III. Any physician who fails to submit a report by the end of 30 days following the due date shall be subject to a late fee of $500 for each additional 30-day period or portion of a 30-day period the report is overdue. Any physician required to report in accordance with this chapter who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought in the manner in which actions are brought to enforce RSA 329, be directed by a court of competent jurisdiction to submit a complete report within a time period stated by court order or be subject to civil contempt. Failure by any physician to conform to any requirement of this section, other than late filing of a report, constitutes unprofessional conduct pursuant to RSA 329. Failure by any physician to submit a complete report in accordance with a court order constitutes unprofessional conduct pursuant to RSA 329. Intentional or reckless falsification of any report required under this section is a class A misdemeanor.
132-B:6 Rulemaking. The commissioner of the department shall adopt rules, pursuant to RSA 541-A, relative to:
I. A schedule of reports due under RSA 132-B:5.
II. Content and format of all forms required under this chapter.
132-B:7 Penalty. Any person who intentionally or recklessly performs or attempts to perform an abortion in violation of RSA 132-B:4 of this act is guilty of a class A felony. No penalty shall be assessed against the woman upon whom the abortion is performed or attempted to be performed.
132-B:8 Actions.
I. Any woman upon whom an abortion has been performed in violation of this chapter or the father of the unborn child who was the subject of such an abortion may maintain an action against the person who performed the abortion in an intentional or a reckless violation of this chapter for actual damages. Any woman upon whom an abortion has been attempted in violation of this chapter may maintain an action against the person who attempted to perform the abortion in an intentional or a reckless violation of this chapter for actual damages.
II. A cause of action for injunctive relief against any person who has intentionally violated this chapter may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of this chapter, any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of this chapter, by a county attorney with appropriate jurisdiction, or by the attorney general. The injunction shall prevent the abortion provider from performing further abortions in violation of this chapter in this state.
III. If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for reasonable attorney’s fees in favor of the plaintiff against the defendant.
IV. If judgment is rendered in favor of the defendant and the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney’s fees in favor of the defendant against the plaintiff.
V. No damages or attorney’s fees shall be assessed against the woman upon whom an abortion was performed or attempted to be performed except as provided in paragraph IV.
132-B:9 Public Disclosure. In every civil or criminal proceeding or action brought under this chapter, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under RSA 132-B:8 shall do so under a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
132-B:10 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of the chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are severable.
3 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2076
12/28/11
HB 1660-FN - FISCAL NOTE
AN ACT relative to abortions after 20 weeks.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, New Hampshire Association of Counties, and Departments of Justice, Corrections, and Health and Human Services state this bill will increase state and county expenditures by interminable amounts in FY 2013 and each year thereafter. There will be no fiscal impact on state, county, or local revenue, or local expenditures.
METHODOLOGY:
The Judicial Branch states several sections of this bill could result in a fiscal impact the Branch:
• Professional disciplinary actions against physicians may be appealed to the Supreme Court. The Branch has no information on how many appeals may arise from the proposed bill or on whether the appeals would be declined, accepted for full appellate review, or accepted for a more limited review.
• Civil contempt actions brought against a physician who fails to file required reports for more than one year after the due date would take place in the superior court and would be considered complex equity cases. The Branch has no information on how many such cases may arise, but estimates the cost of an average complex equity case in superior court will be $576.05 in FY 2013 and $602.60 in FY 2014. These amounts do not consider the cost of any appeals that may be taken following trial.
• The Branch has no information on how many class A misdemeanors would be prosecuted for intentional or reckless falsification of a required report, but does have information on the average cost of processing these cases in the trial court. The cost to the Judicial Branch of processing an average class A misdemeanor in the district division of the circuit court is estimated to be $59.11 in FY 2013 and $61.31 in FY 2014.
• The Branch has no information on which to estimate how many felonies would be prosecuted against individuals for intentionally or recklessly performing or attempting to perform an abortion, but indicates the estimated cost to the Judicial Branch of an average routine criminal case in the superior court will be $389.84 in FY 2013 and $401.48 in FY 2014. These amounts do not include the cost of appeals which may be taken following trial.
• Any civil action for damages action against a person brought pursuant to the proposed RSA 132:B8, I, law would be classified as a complex civil case in the superior court. The Branch has no information on which to estimate how many new complex civil cases will be brought, but estimates the cost of an average complex civil case in the superior court will be $633.81 in FY 2013 and $651.29 in FY 2014. These amounts do not include the cost of appeals which may be taken following trial.
• Actions for injunctive relief brought against a person who has intentionally violated the provisions of this proposed law would be classified as a complex equity case in the superior court. The Branch has no information on which to estimate how many new complex equity cases will be brought, but estimates the cost of an average complex equity case in the superior court will be $576.05 in FY 2013 and $602.60 in FY 2014. These amounts do not include the cost of appeals which may be taken following trial.
• Finally, the requirement that the court must rule, in all cases, whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure does will not add new cases to the caseload of the Judicial Branch. This provision adds a new issue to each case potentially lengthening a trial. The potential fiscal impact would be the cost of lengthier trials.
In summary, the Judicial Branch is able to identify areas of fiscal impact in this bill, but is not able provide an accurate estimate of the total cost.
The Judicial Council states this bill may result in an indeterminable increase in state general fund expenditures. The Council assumes a physician may be less likely than the average citizen to be eligible for indigent defense representation, but states if an individual is found to be indigent, the flat fee of $275 per misdemeanor and $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge and $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The Department of Justice states the criminal offense created by this bill would typically be prosecuted by a county attorney’s office. The Department states there would be a fiscal impact in cases when an appeal is taken to the NH Supreme Court, but is not able to predict how many cases may be appealed. In addition, violations could trigger a complaint to a medical licensing board which would impact the Civil Bureau due to its role of legal counsel to the boards. The Department, through the Administrative Prosecutions Unit, may be responsible for investigating and prosecuting complaints filed with a licensing board for violations under this law. Finally, additional resources may be needed within the Civil Bureau to provide legal counsel to the Department of Health and Human Services to assist it in meeting its obligations described in the bill. The Department is not able to determine the fiscal impact of these potential requirements.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2010 was $32,492. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2010 was $659.
The Department of Health and Human Services states this bill requires the Department to:
• Receive reports, according to a schedule included in administrative rules, from any physician who performs or attempts to perform an abortion.
• Issue a public report by June 30th of each year providing statistics from the previous calendar year including statistics for previous years updated to reflect new information and corrections.
• Ensure none of the information in the reports could lead to the identification of any woman upon whom an abortion was performed.
• Adopt rules pursuant to RSA 541-A concerning the reporting requirements, schedules, forms and any other matter necessary to implement the law.
The Department assumes the requirements of this bill could be satisfied by a part-time Planning Analyst to develop the forms and the database and a part-time Executive Secretary to perform the data entry and assist in editing the annual reports. The Department states it does not have the exiting staff necessary to meet the requirements, but estimates the cost for both part-time employees and related expenses to be less than $10,000.
