HB 1160 – AS INTRODUCED
HOUSE BILL 1160
This bill establishes the women’s health protection act.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT establishing the women’s health protection act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
132-B:1 Short Title. This chapter may be cited as “The Women’s Health Protection Act.”
132-B:2 Definitions. In this chapter:
I. “Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman 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 fetus.
II. “Abortion provider” means any physician or entity that performs or provides abortions. For purposes of this chapter, “abortion provider” shall also include any entity that refers for abortions as a normal part of its business at least 10 times per year.
III. “Complication associated with abortion” means any adverse physical, emotional, or psychological reaction that is statistically associated with abortion (P<0.05, meaning there is less than a 5 percent chance that the results were due to sampling error).
IV. “Medical emergency” means that condition which, on the basis of the physician’s reasonable clinical judgment, so complicates the medical condition of the pregnant woman as to necessitate an immediate abortion to avert the death of the mother or for which a 24-hour delay will create grave peril of immediate and irreversible loss of a major bodily function.
V. “Physician” means any person licensed to practice under RSA 329.
VI. “Qualified person” means a licensed physician or an agent of the abortion provider who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.
VII. “Risk factor” means any factor, including any physical, psychological, emotional, demographic, or situational factors, that is statistically associated (P<0.05, meaning there is less than a 5 percent chance that the results were due to sampling error) with one or more complications associated with abortion wherein the statistically significant results were published no less than 12 months prior to the abortion in any peer-reviewed journals indexed by the National Library of Medicine’s search services, PubMed or MedLine, or in any journal included in the Thomson Scientific Master Journal List.
VIII. “Self-induced abortion” means any abortion or menstrual extraction attempted or completed by a woman on her own body.
132-B:3 Screening Requirements. In addition to whatever requirements exist under the common or statutory law of this state, it is an act of medical negligence to perform or refer for an abortion except in the case of a medical emergency, unless all of the following are true:
I. Before the physician recommends or performs an abortion, a qualified person has evaluated the woman to identify any pressures to consent to the abortion and the presence of any risk factors and informed her and the physician of the results of this evaluation in writing which includes at least a checklist identifying both the positive and negative results of the evaluation for each risk factor.
II. In the event that any risk factors were identified, the patient has been informed by a qualified person about each complication associated with abortion that is associated with each risk factor that was identified. In the event that risk factors are known to be statistically interrelated and may compound the risk of adverse reactions, these interrelated effects shall also be explained. All explanations of complications associated with abortion shall include quantifiable risk rates, whenever such relevant data exists, in the detail that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
III. In the event that any risk factors were identified, the qualified person who has provided the screening and counseling provided a written statement to the patient and the physician certifying, to the best of the qualified person’s knowledge, that the patient understands and appreciates the significance of the risk factors discussed and her increased exposure to the related adverse reactions. The risk factors and associated complications associated with abortion shall be listed in this certificate.
IV. The physician recommending or performing the abortion has in good faith formed a reasonable medical judgment, documented in the permanent record, that the abortion is medically advisable to prevent:
(a) The imminent death or serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.
(b) Other health risks arising directly from the pregnancy itself, provided that the physician has reasonably determined and documented that the preponderance of statistically validated medical studies demonstrate that the continuance of pregnancy, in such a circumstance and for such a patient, is likely to involve one or more injuries to the health of the pregnant woman, excluding any associated with raising a child, that significantly exceed the combined physical, psychological, familial, and behavioral risks associated with abortion.
V. The physician has made a good faith effort to ensure that there are no other available options that can lessen the health risks associated with continuing the pregnancy to a degree less than the health risks associated with an induced abortion.
132-B:4 Insurance Requirements.
I. Physicians who perform abortions shall have admitting privileges at a hospital which, in the event of a medical emergency, is reasonably accessible to the site at which the abortion is performed. Physicians who are not residents of the state are exempted from this requirement if they comply with paragraph II.
II. All professional corporations and freestanding clinics which provide more than 10 abortions per year, and any physician licensed by the state who is not a resident of the state, shall register with the department of health and human services proof of insurance for malpractice, negligence, and battery related to the provision of abortion covering all employees, contract workers, and volunteers who have contact with abortion patients in an amount of not less than $2,000,000 per incident.
132-B:5 Civil Remedies.
I. In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of this chapter shall provide a basis for the following:
(a) Each violation of this chapter shall entitle the woman or her survivors to $10,000 for each failure to screen for a risk factor and for each failure to inform her of associated complications plus actual damages and reasonable attorney’s fees and costs.
(b) Recovery for the woman for the wrongful death of her unborn child, whether or not the unborn child was viable at the time of the abortion, upon proving by a preponderance of evidence that the abortion provider knew or should have known that the patient’s consent to the abortion was either not informed or not fully voluntary.
II. Any action for civil remedies based on a failure to comply with the requirements of this chapter shall be brought no later than 2 years after the date the woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may have impeded the patient’s ability to seek or cooperate with counsel to pursue a civil remedy.
III. Notwithstanding the provisions of paragraph II, in the case of a woman who has died within one year of the abortion, any action under this chapter shall be brought within 2 years of her death.
IV. If the physician provided the patient with less than 24 hours for reflection time to comprehend and consider all the information this chapter requires, the burden of proving that the woman had sufficient reflection time, given her age, level of maturity, emotional state, and mental capacity shall fall upon the abortion provider.
V. In a civil action under this chapter:
(a) In determining liability and validity of consent, the failure to comply with the requirements of RSA 132-B:3 shall create the presumption that the plaintiff would not have undertaken the recommended abortion had RSA 132-B:3 been complied with.
(b) The absence of physical injury shall not preclude an award of damages for emotional harm associated with the abortion.
(c) The fact that a physician does not perform elective abortions, or has not in the past, shall not automatically disqualify that physician from being an expert witness. A licensed obstetrician or family practitioner who regularly helps women in resolving pregnancy related medical matters shall presumptively be qualified to testify as an expert on the screening, counseling, management, and treatment of unwanted and/or problem pregnancies.
(d) Any abortion provider or licensed health care worker who makes referrals to a physician whose practice is inside or outside this state shall be liable for ensuring that the party to whom the abortion provider refers the patient provides a standard of care equal to or better than the standard defined by this chapter.
(e) The failure to comply with the requirements of RSA 132-B:3 shall create the presumption that the negligence was willful and wanton, unless the defendant proves by a preponderance of evidence that a lesser mental state in fact applied.
VI. It shall be an affirmative defense to allegations of inadequate disclosure under the standards and requirements of RSA 132-B:3 that the defendants omitted the contested information because:
(a) Statistically validated surveys of the general population of women of reproductive age, conducted within 3 years before or after the contested abortion, demonstrate that less than 5 percent of women would consider the contested information to be relevant to an abortion decision; or
(b) In the reasonable medical judgment of 2 licensed psychiatrists who examined the patient prior to the abortion, disclosure of the contested information would most likely have been the immediate and direct cause of a severe adverse effect on the physical health of the patient.
VII. In addition to whatever remedies are available under the common or statutory law of this state, a woman, or her survivors, who attempted or completed a self-induced abortion except as legally prescribed by a physician, shall have a cause of action for battery or reckless endangerment against any person who provided, distributed, or sold drugs, devices, or medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant who is not a physician provided, distributed, or sold drugs, devices, or medical advice with the intent to assist others to perform illegal or self-induced abortions, the plaintiff shall be awarded not less than $400,000 for battery or reckless endangerment, plus attorney’s fees. Proof of injury shall not be required to recover an award for battery .or reckless endangerment under this chapter.
VIII. In addition to whatever remedies are available under the common or statutory law of this state, in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, shall have a cause of action against said person. Upon establishing by a preponderance of evidence that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than $800,000 for battery or reckless endangerment, plus attorney’s fees. Proof of injury shall not be required to recover an award for battery or reckless endangerment under this chapter.
132-B:6 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 applications 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.
I. Nothing in this chapter shall be construed as creating or recognizing a right to abortion.
II. It is not the intention of this chapter to make lawful an abortion that is otherwise unlawful.
2 Right of Intervention. The general court, by joint resolution, may appoint one of its members who sponsored or cosponsored this act in his or her official capacity to intervene as a matter of right in any case in which the constitutionality of this act is challenged.
3 Effective Date. This act shall take effect 30 days after its passage.