HB 744-FN – AS INTRODUCED
2007 SESSION
01/04
HOUSE BILL 744-FN
AN ACT relative to informed consent before abortion.
SPONSORS: Rep. Dumaine, Rock 3; Rep. Itse, Rock 9; Rep. Boyce, Belk 5; Rep. N. Elliott, Hills 19
This bill requires informed consent before a woman procures an abortion unless it is a medical emergency. The bill requires the commissioner of the department of health and human services to publish printed materials relative to options available to the woman. This information shall also be available on the Internet. The commissioner is granted rulemaking authority to administer this law.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-1104
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT relative to informed consent before abortion.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Informed Consent for Abortions. Amend RSA 132 by inserting after section 28 the following new subdivision:
Informed Consent for Abortions
132:29 Definitions. In this subdivision:
I. “Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to:
(a) Save the life or preserve the health of an unborn child;
(b) Remove a dead unborn child caused by spontaneous abortion; or
(c) Remove an ectopic pregnancy.
II. “Complication” means that condition which includes but is not limited to hemorrhage, infection, uterine perforation, cervical laceration, pelvic inflammatory disease, endometriosis, and retained products. The department may further define “complication.”
III. “Commissioner” means the commissioner of the department of health and human services.
IV. “Department” means the department of health and human services.
V. “Medical emergency” means that condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.
VI. “Physician” means any person licensed under RSA 329.
132:30 Informed Consent Required.
I. Except in the case of a medical emergency, an abortion shall be by informed consent only.
II. The physician who is to perform the abortion shall inform the woman on whom the abortion is to be performed of:
(a) The name of the physician who will perform the abortion.
(b) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
(1) The risks of infection and hemorrhage.
(2) The potential danger to a subsequent pregnancy and of infertility.
(3) The possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer.
(4) The probable gestational age of the unborn child at the time the abortion is to be performed.
(5) The medical risks associated with carrying the child to term.
II. The physician who is to perform the abortion or the physician’s agent shall inform the woman that:
(a) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.
(b) The father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion.
(c) Public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest.
(d) Printed materials have been provided by the department and are accessible on an Internet website sponsored by the department, and that the materials describe the unborn child and list agencies that offer alternatives to abortion.
III. The woman shall certify by signing a form before the abortion is performed that the information described under this subdivision has been provided to her for review.
IV. Before an abortion is performed, the physician who is to perform the abortion shall receive a copy of the written certification required.
V.(a) The physician shall either provide a woman requesting an abortion with printed materials or notify her as to where these materials can be researched:
(1) Orally by telephone or in person; and
(2) At least 24 hours before the abortion is to be performed.
(b) The physician or the physician’s agent shall furnish copies of the pertinent materials to the woman by mail if the materials are mailed, registered mail to addressee, at least 72 hours before the abortion is to be performed.
132:31 Publication of Materials. The department shall publish and make available printed materials in English, within 90 days after this subdivision becomes law. Such information shall be also available on the Internet. On an annual basis, the department shall review and update, if necessary, the following easily comprehensible printed materials:
I.(a) Geographically indexed materials that inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while her child is dependent, including but not limited to adoption agencies. The materials shall include a comprehensive list of the agencies, a description of the services they offer, and the telephone numbers and addresses of the agencies, and shall inform the woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care.
(b) The department shall ensure that the materials described in this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this section. The materials shall also contain a toll-free 24-hour-a-day telephone number which may be called to obtain information about the agencies in the locality of the caller and of the services they offer.
(c) The materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion and that if a minor is denied financial support by the minor’s parents, guardian, or custodian due to the minor’s refusal to have an abortion performed, the minor shall be deemed emancipated for the purposes of eligibility for public-assistance benefits, except that such benefits may not be used to obtain an abortion. The materials shall also state that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action at law and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care. The materials shall include the following statement:
“There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place him or her for adoption. The state of New Hampshire strongly urges you to contact one or more of these agencies before making a final decision about abortion. The law requires that your physician or his or her agent give you the opportunity to call agencies like these before you undergo an abortion.”
II.(a) Materials that include information on the support obligations of the father of a child who is born alive, including but not limited to the father’s legal duty to support his child, which may include child support payments and health insurance, and the fact that paternity may be established by the father’s signature on a birth certificate or statement of paternity, or by court action.
(b) The printed material shall also state that more information concerning paternity establishment and child support services and enforcement may be obtained by calling state or county public assistance agencies.
III. Materials which contain objective information describing the various surgical and drug-induced methods of abortion, as well as the immediate and long-term medical risks commonly associated with each abortion method including, but not limited to, the risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to subsequent pregnancies, increased risk of breast cancer, the possible adverse psychological effects associated with an abortion, and the medical risks associated with carrying a child to term.
IV. The materials shall be printed in a typeface large enough to be clearly legible.
V. The materials required under this section shall be available at no cost from the department upon request and in an appropriate number to any person, facility, or hospital.
132:32 Criminal Penalties. Any person who purposely, knowingly, or recklessly violates this subdivision is guilty of a felony. Any information given by the woman pursuant to this subdivision shall be confidential and any person, except the woman who provided the information, who willfully discloses any such information shall be guilty of a felony.
132:33 Civil Penalties. In addition to whatever remedies are available under the common or statutory law of this state, failure to comply with the requirements of this subdivision shall:
I. Provide a basis for a civil malpractice action. Any intentional violation of this subdivision shall be admissible in a civil suit as prima facie evidence of a failure to obtain informed consent. When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed.
II. Provide a basis for professional disciplinary action under RSA 329.
III. Provide a basis for recovery for the woman for the wrongful death of her unborn child, whether or not the unborn child was born alive or was viable at the time the abortion was performed.
132:34 Severability. If any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications, and to this end, the provisions of this subdivision are severable.
2 Effective Date. This act shall take effect January 1, 2008.
LBAO
07-1104
01/29/07
HB 744-FN - FISCAL NOTE
AN ACT relative to informed consent before abortion.
FISCAL IMPACT:
The Office of Legislative Budget Assistant, Department of Justice, and Department of Health and Human Services state this bill may increase state and county expenditures by an indeterminable amount in FY 2008 and each year thereafter. This bill will have no fiscal impact on state, county, and local revenue, or local expenditures.
METHODOLOGY:
The Office of Legislative Budget Assistant states this bill creates a new felony penalty for any person who purposely, knowingly, or recklessly violates the informed consent for abortions subdivision or for any person who willfully discloses confidential information provided by the women. Judicial Branch costs associated with the different levels of penalty assuming clerical and judicial time at current salary levels would be $50 for a class A misdemeanor, $36 for a class B misdemeanor, and $297 for a felony. Class B misdemeanors carry the potential for incarceration, and therefore the potential for de novo appeals to the Superior Court for a jury trial. Both class A and B misdemeanors can involve appeals to the Supreme Court. There are additional costs associated with appeals to the Superior Court and the Supreme Court. A felony offense is more costly to process than a misdemeanor because they can involve arraignment, bail, and probable cause hearings in the District Court, numerous hearings and a jury trial in the Superior court and an appeal to the Supreme Court. The Branch is unable to determine the number of cases that will be brought pursuant to the proposed statute.
The Department of Justice states this bill would require any doctor, prior to conducting an abortion, to provide certain specified information to the patient and to obtain the patient’s informed consent to the procedure. A violation of that obligation could be charged as a felony and subject the doctor to professional disciplinary action. The criminal offense created by this bill would be prosecuted by the county attorneys. The Department would become involved only if someone convicted of such an offense appealed his or her conviction. It is difficult to estimate how many such appeals may result, but it is expected that the number would be small and could be absorbed within the Department’s budget. The Administrative Prosecution Unit of the Department would be responsible for prosecuting any professional disciplinary action, and it is
LBAO
07-1104
01/29/07
again anticipated the number of these actions could be absorbed within the Department’s budget.
The Department of Health and Human Services states this bill would require the Department to publish printed informational materials relative to options available to a woman, and also make this information available on the internet. In order to research, publish and reproduce a brochure annually, the Department assumes that one part-time person, with associated current expenses and equipment will be needed to do the work outlined in the bill. Although the effective date of the bill is January 1, 2008, the Department assumes the part-time position will be necessary for 9 months in FY 2008 since the position will need three months to gather and print the materials necessary. Costs will also be incurred for a 24 hour, 7 days a week information line. Assuming a part-time Program Specialist II position at Labor Grade 21, annual steps, and benefits at 7.65% of salary, the Department estimates the fiscal impact as follows:
FY 2008 FY 2009 FY 2010 FY 2011
Salary $12,629 $17,540 $18,310 $19,080
Benefits $966 $1,341 $1,400 $1,459
Current Expenses $2,000 $2,000 $2,000 $2,000
Rent $3,115 $4,153 $4,153 $4,153
Equipment $3,500 $0 $0 $0
Printed Materials $1,300 $1,300 $1,300 $1,300
24/7 Information Line $840 $840 $840 $840
Total $24,350 $27,174 $28,003 $28,832
This bill does not establish or appropriate funds for any positions.