HB 1662-FN – AS INTRODUCED
2010 SESSION
01/09
HOUSE BILL 1662-FN
AN ACT relative to consent for abortions.
SPONSORS: Rep. Seidel, Hills 20; Rep. Kolodziej, Rock 4; Rep. Hogan, Hills 25; Rep. Willette, Hills 6; Rep. Ingbretson, Graf 5; Sen. Letourneau, Dist 19
This bill regulates abortions in New Hampshire by requiring women to have a medical consultation before an abortion, requiring informed consent of the woman upon whom the abortion is to be performed, and requiring parental consent in the case of a minor. Under this bill, the department of health and human services is to publish certain materials. The commissioner of the department of health and human services is granted rulemaking authority for the purposes of the bill.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
10-2540
01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to consent for abortions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Intent.
I. It is the intention of the general court to protect hereby the life and health of the woman subject to abortion and to protect the life and health of the child subject to abortion. It is the further intention of the general court to foster the development of standards of professional conduct in a critical area of medical practice, to provide for development of statistical data and to protect the right of the minor woman voluntarily to decide to submit to abortion or to carry her child to term. The general court finds as fact that the rights and interests furthered by this chapter are not secure in the context in which abortion is presently performed.
II. Reliable and convincing evidence has compelled the general court to conclude and the general court does hereby solemnly declare and find that:
(a) Many women now seek or are encouraged to undergo abortions without full knowledge of the development of the unborn child or of alternatives to abortion.
(b) The gestational age at which viability of an unborn child occurs has been lowering substantially and steadily as advances in neonatal medical care continue to be made.
(c) A significant number of late-term abortions result in live births, or in delivery of children who could survive if measures were taken to bring about breathing. Some physicians have been allowing these children to die or have been failing to induce breathing.
(d) Because New Hampshire places a supreme value upon protecting human life, it is necessary that those physicians which it permits to practice medicine be held to precise standards of care in cases where their actions do or may result in the death of an unborn child.
(e) A reasonable waiting period, as contained in this chapter, is critical to the assurance that a woman elect to undergo an abortion procedure only after having the fullest opportunity to give her informed consent thereto.
III. In every relevant civil or criminal proceeding in which it is possible to do so without violating the federal Constitution, the common and statutory law of New Hampshire shall be construed so as to extend to the unborn the equal protection of the laws and to further the public policy of New Hampshire encouraging childbirth over abortion.
IV. It is the further public policy of New Hampshire to respect and protect the right of conscience of all persons who refuse to obtain, receive, subsidize, accept, or provide abortions including those persons who are engaged in the delivery of medical services and medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability, or imposition of liability or financial burden upon such persons or entities by reason of their refusing to act contrary to their consciences or conscientious convictions in refusing to obtain, receive, subsidize, accept, or provide abortions.
2 New Subdivision; Abortion Control Act. Amend RSA 132 by inserting after section 28 the following new subdivision:
132:29 Definitions: In this subdivision:
I. “Abortion” means the use of any means 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 except that, for the purposes of this chapter, abortion shall not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulation, fertilization, or the implantation of a fertilized ovum within the uterus.
II. “Born alive” when used with regard to a human being, means that the human being was completely expelled or extracted from her or his mother and after such separation breathed or showed evidence of any of the following: beating of the heart, pulsation of the umbilical cord, definite movement of voluntary muscles, or any brainwave activity.
III. “Complication” includes but is not limited to hemorrhage, infection, uterine perforation, cervical laceration. and retained products. The department may further define complication.
IV. “Conscience” means a sincerely held set of moral convictions arising from belief in and relation to a deity or which, though not so derived, obtains from a place in the life of its possessor parallel to that filled by a deity among adherents to religious faiths.
V. “Department” means the department of health and human services.
VI. “Facility” or “medical facility” means any facility licensed under RSA 151.
VII. “Fertilization” and “conception” means the fusion of a human spermatozoon with a human ovum.
VIII. “First trimester” means the first 12 weeks of gestation.
IX. “Gestational age” means the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.
X. “Hospital” means an institution licensed under RSA 151.
XI. “In vitro fertilization” means the purposeful fertilization of a human ovum outside the body of a living human female.
XII. “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.
XIII. “Medical personnel” means any nurse, nurse’s aide, medical school student, professional or any other person who furnishes, or assists in the furnishing of, medical care.
XIV. “Physician” means any person licensed under RSA 329 to practice medicine in New Hampshire. The term includes medical doctors and doctors of osteopathy.
XV. “Pregnancy” and “pregnant” mean that female reproductive condition of having a developing fetus in the body and commences with fertilization.
XVI. “Probable gestational age of the unborn child” means what, in the judgment of the attending physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed.
XVII. “Unborn child” and “fetus” means an individual organism of the species homo sapiens from fertilization until live birth.
XVIII. “Viability” means that stage of fetal development when, in the judgment of the physician based on the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.
132:30 Medical Consultation and Judgment; Abortion Prohibited; Exceptions; Penalty.
I. No abortion shall be performed except by a physician after either:
(a) He or she determines that, in his or her best clinical judgment, the abortion is necessary; or
(b) He or she receives what he or she reasonably believes to be a written statement signed by another physician, hereinafter called the “referring physician,” certifying that in this referring physician’s best clinical judgment the abortion is necessary.
II. Except in a medical emergency where there is insufficient time before the abortion is performed, the woman upon whom the abortion is to be performed shall have a private medical consultation either with the physician who is to perform the abortion or with the referring physician. The consultation will be in a place, at a time and of a duration reasonably sufficient to enable the physician to determine whether, based on his or her best clinical judgment, the abortion is necessary.
III. In determining in accordance with paragraph I whether an abortion is necessary, a physician’s best clinical judgment may be exercised in the light of all factors, physical, emotional, psychological, familial and the woman’s age, relevant to the well-being of the woman. No abortion which is sought solely because of the sex of the unborn child shall be deemed a necessary abortion.
IV. Any person who intentionally, knowingly or recklessly violates the provisions of this section commits a felony, and any physician who violates the provisions of this section is guilty of “unprofessional conduct” and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under RSA 329.
132:31 Informed Consent; Emergency; Penalty.
I. No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
(a) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
(1) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(2) The probable gestational age of the unborn child at the time the abortion is to be performed.
(3) The medical risks associated with carrying her child to term.
(b) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:
(1) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.
(2) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
(3) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
(c) A copy of the printed materials has been provided to the pregnant woman if she chooses to view these materials.
(d) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under this subparagraph has been provided.
II. Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his or her judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
III. Any physician who violates the provisions of this section is guilty of “unprofessional conduct” and his or her license for the practice of medicine shall be subject to suspension or revocation in accordance with procedures provided under RSA 329. Any physician who performs or induces an abortion without first obtaining the certification required by subparagraph I(d) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a class B misdemeanor and for each subsequent offense be guilty of a class A misdemeanor. No physician shall be guilty of violating this section for failure to furnish the information required by paragraph I if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.
132:32 Parental Consent.
I. Except in the case of a medical emergency, or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incapacitated person under state law, a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he or she first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is an incapacitated person, he or she first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman’s parent or guardian shall consider only his or her child’s or ward’s best interests. In the case of a pregnancy that is the result of incest where the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother.
II. If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman’s guardian or guardians shall be sufficient. If the pregnant woman’s parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient.
III. If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the superior court of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.
IV. If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.
V. The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel.
VI.(a) Court proceedings under this section shall be confidential and shall be given such precedence over other pending matters as will ensure that the court may reach a decision promptly and without delay in order to serve the best interests of the pregnant woman. In no case shall the court fail to rule within 3 business days of the date of application. A court which conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting its decision and shall, upon the initial filing of the minor’s petition for judicial authorization of an abortion, order a sealed record of the petition, pleadings, submissions, transcripts, exhibits, orders, evidence, and any other written material to be maintained which shall include its own findings and conclusions.
(b) The application to the court shall be accompanied by a non-notarized verification stating that the information therein is true and correct to the best of the applicant’s knowledge, and the application shall set forth the following facts:
(1) The initials of the pregnant woman.
(2) The age of the pregnant woman.
(3) The names and addresses of each parent, guardian or, if the minor’s parents are deceased and no guardian has been appointed, any other person standing in loco parentis to the minor.
(4) That the pregnant woman has been fully informed of the risks and consequences of the abortion.
(5) Whether the pregnant woman is of sound mind and has sufficient intellectual capacity to consent to the abortion.
(6) A prayer for relief asking the court to either grant the pregnant woman full capacity for the purpose of personal consent to the abortion, or to give judicial consent to the abortion under paragraph IV based upon a finding that the abortion is in the best interest of the pregnant woman.
(7) That the pregnant woman is aware that any false statements made in the application are punishable by law.
(8) The signature of the pregnant woman. Where necessary to serve the interest of justice, the judicial branch family division shall refer the pregnant woman to the appropriate personnel for assistance in preparing the application.
(c) The name of the pregnant woman shall not be entered on any docket which is subject to public inspection. All persons shall be excluded from hearings under this section except the applicant and such other persons whose presence is specifically requested by the applicant or her guardian.
(d) At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the pregnant woman, the fact and duration of her pregnancy, the nature, possible consequences, and alternatives to the abortion and any other evidence that the court may find useful in determining whether the pregnant woman should be granted full capacity for the purpose of consenting to the abortion or whether the abortion is in the best interest of the pregnant woman. The court shall also notify the pregnant woman at the hearing that it must rule on her application within 3 business days of the date of its filing and that, should the court fail to rule in favor of her application within the allotted time, she has the right to appeal to the supreme court.
VII. Except in a medical emergency, no parent, guardian, or other person standing in loco parentis shall coerce a minor or incapacitated woman to undergo an abortion. Any minor or incapacitated woman who is threatened with such coercion may apply to the superior court. The court shall provide the minor or incapacitated woman with counsel, give the matter expedited consideration, and grant such relief as may be necessary to prevent such coercion. Should a minor be denied the financial support of her parents by reason of her refusal to undergo abortion, she shall be considered emancipated for purposes of eligibility for assistance benefits.
VIII. No filing fees shall be required of any woman availing herself of the procedures provided by this section. An expedited confidential appeal shall be available to any pregnant woman whom the court fails to grant an order authorizing an abortion within the time specified in this section. Any court to which an appeal is taken under this section shall give prompt and confidential attention thereto and shall rule thereon within 5 business days of the filing of the appeal. The supreme court may issue such rules as may further assure that the process provided in this section is conducted in such a manner as will ensure confidentiality and sufficient precedence over other pending matters to ensure promptness of disposition.
IX. Any person who performs an abortion upon a woman who is an unemancipated minor or incapacitated person to whom this section applies either with knowledge that she is a minor or incapacitated person to whom this section applies, or with reckless disregard or negligence as to whether she is a minor or incapacitated person to whom this section applies, and who intentionally, knowingly or recklessly fails to conform to any requirement of this section is guilty of “unprofessional conduct” and his or her license for the practice of medicine shall be suspended in accordance with procedures provided under RSA 329 for a period of at least 3 months. Failure to comply with the requirements of this section is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The laws of New Hampshire shall not be construed to preclude the award of exemplary damages or damages for emotional distress even if unaccompanied by physical complications in any appropriate civil action relevant to violations of this section. Nothing in this section shall be construed to limit the common law rights of parents.
132:33 Abortion Facilities.
I. The department shall adopt rules, under RSA 541-A, with respect to performance of abortions and with respect to facilities in which abortions are performed, so as to protect the health and safety of woman having abortions and of premature infants aborted alive. These rules shall include, but not be limited to, procedures, staff, equipment, and laboratory testing requirements for all facilities offering abortion services.
II.(a) Within 30 days after the effective date of this subdivision, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information:
(1) Name and address of the facility.
(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.
(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship, or officership with any other facility.
(b) The information contained in those reports which are filed pursuant to this section by facilities which receive state appropriated funds during the 12 calendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive state appropriated funds shall only be available to law enforcement officials and the board of medicine for use in the performance of its official duties. Any facility failing to comply with the provisions of this section shall be assessed by the department a fine of $500 for each day it is in violation.
132:34 Printed Information.
I. The department shall cause to be published in English within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials:
(a) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free, 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion, and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care.
(b) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at 2-week gestational increments, and any relevant information on the possibility of the unborn child’s survival; provided that any such pictures or drawings shall contain the dimensions of the fetus and shall be realistic and appropriate for the woman’s stage of pregnancy. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion, and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term.
II. The materials shall be printed in a typeface large enough to be clearly legible.
III. The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility, or hospital.
132:35 Interference Prohibited. New Hampshire shall not interfere with the use of medically appropriate methods of contraception or the manner in which medically appropriate methods of contraception are provided.
132:36 Spousal Notice.
I. In order to further New Hampshire’s interest in promoting the integrity of the marital relationship and to protect a spouse’s interests in having children within marriage and in protecting the prenatal life of that spouse’s child, no physician shall perform an abortion on a married woman, except as provided in paragraphs II and III, unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.
II.(a) The statement certifying that the notice required by paragraph I has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:
(1) Her spouse is not the father of the child.
(2) Her spouse, after diligent effort, could not be located.
(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.
(b) Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.
III. The requirements of paragraph I shall not apply in case of a medical emergency.
IV. The department shall cause to be published forms which may be utilized for purposes of providing the signed statements required by paragraphs I and II. The department shall distribute an adequate supply of such forms to all abortion facilities in New Hampshire.
V. Any physician who violates the provisions of this section is guilty of “unprofessional conduct,” and his or her license for the practice of medicine shall be subject to suspension or revocation in accordance with procedures provided under the RSA 329. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.
132:37 Determination of Gestational Age.
I. Except in the case of a medical emergency which prevents compliance with this section, no abortion shall be performed or induced unless the referring physician or the physician performing or inducing it has first made a determination of the probable gestational age of the unborn child. In making such determination, the physician shall make such inquiries of the patient and perform or cause to be performed such medical examinations and tests as a prudent physician would consider necessary to make or perform in making an accurate diagnosis with respect to gestational age. The physician who performs or induces the abortion shall report the type of inquiries made and the type of examinations and tests utilized to determine the gestational age of the unborn child and the basis for the diagnosis with respect to gestational age on forms provided by the department.
II. Failure of any physician to conform to any requirement of this section constitutes “unprofessional conduct.” Upon a finding by the board of medicine that any physician has failed to conform to any requirement of this section, the board shall suspend that physician’s license for a period of at least 3 months. Intentional, knowing, or reckless falsification of any report required under this section is a class A misdemeanor.
132:38 Abortion on Unborn Child of 24 or More Weeks Gestational Age.
I. Except as provided in subparagraph II(b), no person shall perform or induce an abortion upon another person when the gestational age of the unborn child is 24 or more weeks.
II.(a) It shall not be a violation of paragraph I if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible impairment of a major bodily function.
(b) It shall not be a violation of paragraph I if the abortion is performed by a physician and that physician reasonably believes, after making a determination of the gestational age of the unborn child in compliance with RSA 132:37 that the unborn child is less than 24 weeks gestational age.
III. Except in the case of a medical emergency which, in the reasonable medical judgment of the physician performing the abortion, prevents compliance with a particular requirement of this paragraph, no abortion which is authorized under subparagraph II(a) shall be performed unless each of the following conditions is met:
(a) The physician performing the abortion certifies in writing that, based upon his or her medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.
(b) Such physician’s judgment with respect to the necessity for the abortion has been concurred in by one other licensed physician who certifies in writing that, based upon his or her separate personal medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.
(c) The abortion is performed in a hospital.
(d) The physician terminates the pregnancy in a manner which provides the best opportunity for the unborn child to survive, unless the physician determines, in his or her good faith medical judgment, that termination of the pregnancy in that manner poses a significantly greater risk either of the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman than would other available methods.
(e) The physician performing the abortion arranges for the attendance, in the same room in which the abortion is to be completed, of a second physician who shall take control of the child immediately after complete extraction from the mother and shall provide immediate medical care for the child, taking all reasonable steps necessary to preserve the child’s life and health.
IV. Any person who violates paragraph I commits a felony. Any person who violates paragraph III commits a class B misdemeanor for the first offense and a class A misdemeanor for subsequent offenses.
132:39 Infanticide.
I. New Hampshire law shall not be construed to imply that any human being born alive in the course of or as a result of an abortion or pregnancy termination, no matter what may be that human being’s chance of survival, is not a person under the constitution and laws of New Hampshire.
II. All physicians and licensed medical personnel attending a child who is born alive during the course of an abortion or premature delivery, or after being carried to term, shall provide such child that type and degree of care and treatment which, in the good faith judgment of the physician, is commonly and customarily provided to any other person under similar conditions and circumstances. Any individual who intentionally, knowingly, or recklessly violates the provisions of this section commits a felony.
III. Whenever the physician or any other person is prevented by lack of parental or guardian consent from fulfilling his or her obligations under paragraph II, he or she shall nonetheless fulfill said obligations and immediately notify the juvenile court of the facts of the case. The juvenile court shall immediately institute an inquiry and, if it finds that the lack of parental or guardian consent is preventing treatment required under paragraph II, it shall immediately grant injunctive relief to require such treatment.
132:40 Prohibited Acts.
I. Except in the case of a pregnancy which is not yet clinically diagnosable, any person who intends to perform or induce abortion shall, before accepting payment therefor, make or obtain a determination that the woman is pregnant. Any person who intentionally or knowingly accepts such a payment without first making or obtaining such a determination commits a class B misdemeanor. Any person commits a class B misdemeanor who makes such a determination erroneously either knowing that it is erroneous or with reckless disregard or negligence as to whether it is erroneous, and who either:
(a) Thereupon or thereafter intentionally relies upon that determination in soliciting or obtaining any such payment; or
(b) Intentionally conveys that determination to any person or persons with knowledge that, or with reckless disregard as to whether, that determination will be relied upon in any solicitation or obtaining of any such payment.
II. The payment or receipt of a referral fee in connection with the performance of an abortion is a class A misdemeanor. For purposes of this section, “referral fee” means the transfer of anything of value between a physician who performs an abortion or an operator or employee of a clinic at which an abortion is performed and the person who advised the woman receiving the abortion to use the services of that physician or clinic.
III. The department shall adopt rules, pursuant to RSA 541-A, to assure that prior to the performance of any abortion, including abortions performed in the first trimester of pregnancy, the maternal Rh status shall be determined and that anti-Rh sensitization prophylaxis shall be provided to each patient at risk of sensitization unless the patient refuses to accept the treatment. Except when there exists a medical emergency or, in the judgment of the physician, there exists no possibility of Rh sensitization, the intentional, knowing, or reckless failure to conform to the regulations issued pursuant to this paragraph constitutes “unprofessional conduct” and his or her license for the practice of medicine shall be subject to suspension or revocation in accordance with procedures provided under RSA 329.
IV. Except for a facility devoted exclusively to the performance of abortions, no medical personnel or medical facility, nor any employee, agent, or student thereof, shall be required against his or her or its conscience to aid, abet, or facilitate performance or an abortion or dispensing of an abortifacient and failure or refusal to do so shall not be a basis for any civil, criminal, administrative or disciplinary action, penalty or proceeding, nor may it be the basis for refusing to hire or admit anyone. Any person who knowingly violates the provisions of this paragraph shall be civilly liable to the person thereby injured and, in addition, shall be liable to that person for punitive damages in the amount of $5,000.
V.(a) All persons conducting, or experimenting in, in vitro fertilization shall file quarterly reports with the department, which shall be available for public inspection and copying, containing the following information:
(1) Names of all persons conducting or assisting in the fertilization or experimentation process.
(2) Locations where the fertilization or experimentation is conducted.
(3) Name and address of any person, facility, agency, or organization sponsoring the fertilization or experimentation except that names of any persons who are donors or recipients of sperm or eggs shall not be disclosed.
(4) Number of eggs fertilized.
(5) Number of fertilized eggs destroyed or discarded.
(6) Number of women implanted with a fertilized egg.
(b) Any person required under this paragraph to file a report, keep records, or supply information, who willfully fails to file such report, keep records, or supply such information or who submits a false report shall be assessed a fine by the department in the amount of $50 for each day in which that person is in violation hereof.
VI.(a) Except for a facility devoted exclusively to the performance of abortions, every facility performing abortions shall prominently post a notice, not less than 8-1/2 inches by 11 inches in size, entitled “Right of Conscience,” for the exclusive purpose of informing medical personnel, employees, agents, and students of such facilities of their rights under paragraph IV. The facility shall post the notice required by this subparagraph in a location or locations where notices to employees, medical personnel, and students are normally posted or, if notices are not normally posted, in a location or locations where the notice required by this subparagraph is likely to be seen by medical personnel, employees, or students of the facility. The department shall prescribe a model notice which may be used by any facility, and any facility which utilizes the model notice or substantially similar language shall be deemed in compliance with this subparagraph.
(b) The department shall have the authority to assess a civil penalty of up to $5,000 against any facility for each violation of this paragraph, giving due consideration to the appropriateness of the penalty with respect to the size of the facility, the gravity of the violation, the good faith of the facility and the history of previous violations. Civil penalties due under this paragraph shall be paid to the department for deposit in the state treasury and may be collected by the department in the appropriate court. The department shall send a copy of its model notice to every facility which files a report under RSA 132:33. Failure to receive a notice shall not be a defense to any civil action brought pursuant to this paragraph.
132:41 Reporting.
I. For the purpose of promotion of maternal health and life by adding to the sum of medical and public health knowledge through the compilation of relevant data, and to promote New Hampshire’s interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:
(a) Identification of the physician who performed the abortion, the concurring physician as required by RSA 132:38, III(b), the second physician as required by RSA 132:38, III(e), and the facility where the abortion was performed and of the referring physician, agency, or service, if any.
(b) The county and state in which the woman resides.
(c) The woman’s age.
(d) The number of prior pregnancies and prior abortions of the woman.
(e) The gestational age of the unborn child at the time of the abortion.
(f) The type of procedure performed or prescribed and the date of the abortion.
(g) Pre-existing medical conditions of the woman which would complicate pregnancy, if any, and, if known, any medical complication which resulted from the abortion itself.
(h) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to RSA 132:38, II(a).
(i) The weight of the aborted child for any abortion performed pursuant to RSA 132:38, II(a).
(j) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.
(k) The information required to be reported under RSA 132:37, I.
(l) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.
II. The reports shall be completed by the hospital or other licensed facility, signed by the physician who performed the abortion, and transmitted to the department within 15 days after each reporting month.
III. When there is an abortion performed during the first trimester of pregnancy, the tissue that is removed shall be subjected to a gross or microscopic examination, as needed, by the physician or a qualified person designated by the physician to determine if a pregnancy existed and was terminated. If the examination indicates no fetal remains, that information shall immediately be made known to the physician and sent to the department within 15 days of the analysis. When there is an abortion performed after the first trimester of pregnancy where the physician has certified the unborn child is not viable, the dead unborn child and all tissue removed at the time of the abortion shall be submitted for tissue analysis to a board eligible or certified pathologist. If the report reveals evidence of viability or live birth, the pathologist shall report such findings to the department within 15 days and a copy of the report shall also be sent to the physician performing the abortion. Intentional, knowing, reckless, or negligent failure of the physician to submit such an unborn child or such tissue remains to such a pathologist for such a purpose, or intentional, knowing, or reckless failure of the pathologist to report any evidence of live birth or viability to the department in the manner and within the time prescribed is a class B misdemeanor.
IV. The department shall prescribe a form on which pathologists may report any evidence of absence of pregnancy, live birth, or viability.
V.(a) The department shall prepare a comprehensive annual statistical report for the speaker of the house of representatives, the president of the senate, and the governor based upon the data gathered under this section. Such report shall not lead to the disclosure of the identity of any person filing a report or about whom a report is filed, and shall be available for public inspection and copying.
(b) Reports filed pursuant to paragraph I or VIII shall not be deemed public records under RSA 91-A and shall remain confidential, except that disclosure may be made to law enforcement officials upon an order of a court after application showing good cause therefor. The court may condition disclosure of the information upon any appropriate safeguards it may impose.
(c) Original copies of all reports filed under paragraphs I, VI, and VIII shall be available to the board of medicine for use in the performance of its official duties.
(d) Any person who willfully discloses any information obtained from reports filed pursuant to paragraph I or paragraph VIII, other than that disclosure authorized under subparagraphs (a)-(c) hereof or as otherwise authorized by law, shall commit a class B misdemeanor.
VI. Every facility in which an abortion is performed within this state during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives state-appropriated funds within the 12-calendar-month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable a facility to indicate whether or not it is receiving state-appropriated funds. If the facility indicates on the form that it is not receiving state-appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives state-appropriated funds.
VII. After 30 days’ public notice, the department shall henceforth require that all reports of maternal deaths occurring within the state arising from pregnancy, childbirth, or intentional abortion in every case state the cause of death, the duration of the woman’s pregnancy when her death occurred and whether or not the woman was under the care of a physician during her pregnancy prior to her death and shall issue such rules under RSA 541-A as are necessary to assure that such information is reported, conducting its own investigation if necessary in order to ascertain such data. A woman shall be deemed to have been under the care of a physician prior to her death for the purpose of this chapter when she had either been examined or treated by a physician, not including any examination or treatment in connection with emergency care for complications of her pregnancy or complications of her abortion, preceding the woman’s death at any time which is both 21 or more days after the time she became pregnant and within 60 days prior to her death. Known incidents of maternal mortality of nonresident women arising from induced abortion performed in this state shall be included as incidents of maternal mortality arising from induced abortions. Incidents of maternal morality arising from continued pregnancy or childbirth and occurring after induced abortion has been attempted but not completed, including deaths occurring after induced abortion has been attempted but not completed as a result of ectopic pregnancy, shall be included as incidents of maternal morality arising from induced abortion. The department shall annually compile a statistical report for the speaker of the house of representatives, the president of the senate, and the governor based upon the data gathered under this paragraph, and all such statistical reports shall be available for public inspection and copying.
VIII. Every physician who is called upon to provide medical care or treatment to a woman who is in need of medical care because of a complication or complications resulting, in the good faith judgment of the physician, from having undergone an abortion or attempted abortion shall prepare a report thereof and file the report with the department within 30 days of the date of his or her first examination of the woman, which report shall be on forms prescribed by the department, which forms shall contain the following information, as received, and such other information except the name of the patient as the department may from time to time require:
(a) Age of patient.
(b) Number of pregnancies patient may have had prior to the abortion.
(c) Number and type of abortions patient may have had prior to this abortion.
(d) Name and address of the facility where the abortion was performed.
(e) Gestational age of the unborn child at the time of the abortion, if known.
(f) Type of abortion performed, if known.
(g) Nature of complication or complications.
(h) Medical treatment given.
(i) The nature and extent, if known, of any permanent condition caused by the complication.
II.(a) Any person required under this section to file a report, keep any records, or supply any information, who willfully fails to file such report, keep such records, or supply such information at the time or times required by law or rule is guilty of “unprofessional conduct” and his or her license for the practice of medicine shall be subject to suspension or revocation in accordance with procedures provided under RSA 329.
(b) Any person who willfully delivers or discloses to the department any report, record, or information known by him or her to be false commits a class A misdemeanor.
(c) In addition to the above penalties, any person, organization, or facility who willfully violates any of the provisions of this section requiring reporting shall upon conviction thereof:
(1) For the first time, have its license suspended for a period of 6 months.
(2) For the second time, have its license suspended for a period of one year.
(3) For the third time, have its license revoked.
132:42 Publicly Owned Facilities; Public Officials and Public Funds.
I. No hospital, clinic, or other health facility owned or operated by the state, a county, a city, or other governmental entity shall:
(a) Provide, induce, perform, or permit its facilities to be used for the provision, inducement, or performance of any abortion except where necessary to avert the death of the woman or where necessary to terminate pregnancies initiated by acts of rape or incest if reported in accordance with requirements set forth in paragraph III.
(b) Lease or sell or permit the subleasing of its facilities or property to any physician or health facility for use in the provision, inducement, or performance of abortion, except abortion necessary to avert the death of the woman or to terminate pregnancies initiated by acts of rape or incest if reported in accordance with requirements set forth in paragraph III.
(c) Enter into any contract with any physician or health facility under the terms of which such physician or health facility agrees to provide, induce, or perform abortions, except abortion necessary to avert the death of the woman or to terminate pregnancies initiated by acts of rape or incest if reported in accordance with requirements set forth in paragraph III.
II. Nothing in paragraph I shall be construed to preclude any hospital, clinic, or other health facility from providing treatment for post-abortion complications.
III. No state funds and no federal funds which are appropriated by the state shall be expended by any state or local government agency for the performance of abortion, except:
(a) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.
(b) When abortion is performed in the case of pregnancy caused by rape which, prior to the performance of the abortion, has been reported, together with the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim.
(c) When abortion is performed in the case of pregnancy caused by incest which, prior to the performance of the abortion, has been personally reported by the victim to a law enforcement agency having the requisite jurisdiction, or, in the case of a minor, to the county child protective service agency and the other party to the incestuous act has been named in such report.
IV. Notwithstanding any provision of law to the contrary, no health plan for employees, funded with any state funds, shall include coverage for abortion, except under the same conditions and requirements as provided in paragraph III. The prohibition contained herein shall not apply to health plans for which abortion coverage has been expressly bargained for in any collective bargaining agreement presently in effect, but shall be construed to preclude such coverage with respect to any future agreement.
V. All insurers who make available health care and disability insurance policies in this state shall make available such policies which contain an express exclusion of coverage for abortion services not necessary to avert the death of the woman or to terminate pregnancies caused by rape or incest.
VI. Except in the case of a medical emergency, no court, judge, executive officer, administrative agency, or public employee of the state or of any local governmental body shall have power to issue any order requiring an abortion without the express voluntary consent of the woman upon whom the abortion is to be performed or shall coerce any person to have an abortion.
VII. No court, judge, executive officer, administrative agency, or public employee of the state or of any local governmental body shall withhold, reduce, or suspend or threaten to withhold, reduce or suspend any benefits to which a person would otherwise be entitled on the ground that such person chooses not to have an abortion.
VIII. Whoever orders an abortion in violation of paragraph VI or withholds, reduces, or suspends any benefits or threatens to withhold, reduce, or suspend any benefits in violation of paragraph VII commits a class A misdemeanor.
IX.(a) No federal or state funds which are appropriated by the state for the provision of legal services by private agencies, and no public funds generated by collection of interest on lawyer’s trust accounts, as authorized by statute previously or subsequently enacted, may be used, directly or indirectly, to:
(1) Advocate the freedom to choose abortion or the prohibition of abortion.
(2) Provide legal assistance with respect to any proceeding or litigation which seeks to procure or prevent any abortion or to procure or prevent public funding for any abortion.
(3) Provide legal assistance with respect to any proceeding or litigation which seeks to compel or prevent the performance or assistance in the performance of any abortion, or the provision of facilities for the performance of any abortion.
(b) Nothing in this paragraph shall be construed to require or prevent the expenditure of funds pursuant to a court order to provide court appointed counsel in any proceeding authorized under RSA 132:32.
X.(a) No state agency shall make any payment from federal or state funds appropriated by the state for the performance of any abortion pursuant to subparagraph III(b) or (c) unless the agency first:
(1) Receives from the physician or facility seeking payment a statement signed by the physician performing the abortion stating that, prior to performing the abortion, he or she obtained a non-notarized, signed statement from the pregnant woman stating that she was a victim of rape or incest, as the case may be, and that she reported the crime, including the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction or, in the case of incest where a pregnant minor is the victim, to the county child protective service agency and stating the name of the law enforcement agency or child protective service agency to which the report was made and the date such report was made;
(2) Receives from the physician or facility seeking payment, the signed statement of the pregnant woman which is described in subparagraph (1). The statement shall bear the notice that any false statements made therein are punishable by law and shall state that the pregnant woman is aware that false reports to law enforcement authorities are punishable by law; and
(3) Verifies with the law enforcement agency or child protective service agency named in the statement of the pregnant woman whether a report of rape or incest was filed with the agency in accordance with the statement.
(b) The agency shall report any evidence of false statements, of false reports to law enforcement authorities, or of fraud in the procurement or attempted procurement of any payment from federal or state funds appropriated by the state pursuant to this section to the county attorney of appropriate jurisdiction and, where appropriate, to the attorney general.
132:43 Fetal Experimentation.
I. Any person who knowingly performs any type of nontherapeutic experimentation or nontherapeutic medical procedure except an abortion as defined in this chapter upon any unborn child, or upon any child born alive during the course of an abortion, commits a class A felony. “Nontherapeutic” means that which is not intended to preserve the life or health of the child upon whom it is performed.
II. The following standards govern the procurement and use of any fetal tissue or organ which is used in animal or human transplantation, research, or experimentation:
(a) No fetal tissue or organs may be procured or used without the written consent of the mother. No consideration of any kind for such consent may be offered or given. Further, if the tissue or organs are being derived from abortion, such consent shall be valid only if obtained after the decision to abort has been made.
(b) No person who provides the information required by RSA 132:31 shall employ the possibility of the use of aborted fetal tissue or organs as an inducement to a pregnant woman to undergo abortion except that payment for reasonable expenses occasioned by the actual retrieval, storage, preparation, and transportation of the tissues is permitted.
(c) No remuneration, compensation, or other consideration may be paid to any person or organization in connection with the procurement of fetal tissue or organs.
(d) All persons who participate in the procurement, use, or transplantation of fetal tissue or organs, including the recipients of such tissue or organs, shall be informed as to whether the particular tissue or organ involved was procured as a result of either:
(1) stillbirth;
(2) miscarriage;
(3) ectopic pregnancy;
(4) abortion; or
(5) any other means.
(e) No person who consents to the procurement or use of any fetal tissue or organ may designate the recipient of that tissue or organ, nor shall any other person or organization act to fulfill that designation.
(f) The department may assess a civil penalty upon any person who procures, sells, or uses any fetal tissue or organs in violation of this section or the rules issued thereunder. Such civil penalties shall not exceed $5,000 for each separate violation. In assessing such penalties, the department shall give due consideration to the gravity of the violation, the good faith of the violator, and the history of previous violations. Civil penalties due under this subparagraph shall be paid to the department for deposit in the state treasury.
III. Nothing in this section shall be construed to condone or prohibit the performance of diagnostic tests while the unborn child is in utero or the performance of pathological examinations on an aborted child. Nor shall anything in this section be construed to condone or prohibit the performance of in vitro fertilization and accompanying embryo transfer.
132:44 Civil Penalties. Any physician who knowingly violates any of the provisions of RSA 132:30 or RSA 132:31 shall, in addition to any other penalty prescribed in this subdivision, be civilly liable to his or her patient for any damages caused thereby and, in addition, shall be liable to his or her patient for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.
132:45 Criminal Penalties.
I. Notwithstanding any other provision of this subdivision, no criminal penalty shall apply to a woman who violates any provision of this subdivision solely in order to perform or induce or attempt to perform or induce an abortion upon herself. Nor shall any woman who undergoes an abortion be found guilty of having committed an offense, relating to liability for conduct of another; complicity or relating to inchoate crimes, by reason of having undergone such abortion.
II. A person commits a class B misdemeanor if, with intent to mislead a public servant in performing his or her official function under this subdivision, such person:
(a) Makes any written false statement which he or she does not believe to be true; or
(b) Submits or invites reliance on any writing which he or she knows to be forged, altered, or otherwise lacking in authenticity.
III. Any person or persons identifying themselves as the parents or legal guardians of the minor, when such person or persons are not, shall be guilty of perjury, a felony, and may be subject to further penalty if the pregnancy was determined to be the result of statutory rape.
IV. A person commits a class A misdemeanor if such person makes a written false statement which such person does not believe to be true on a statement submitted as required under this subdivision, bearing notice to the effect that false statements made therein are punishable.
V. The laws relating to perjury shall apply to paragraphs II and III.
132:46 Board of Medicine.
I. It shall be the duty of the board of medicine to vigorously enforce those provisions of this subdivision, violation of which constitutes “unprofessional conduct”. The board shall have the power to conduct, and its responsibilities shall include, systematic review of all reports filed under this subdivision.
II. Except as otherwise herein provided, upon a finding of “unprofessional conduct” under the provisions of this subdivision, the board shall, for the first such offense, prescribe such penalties as it deems appropriate; for the second such offense, suspend the license of the physician for at least 90 days; and, for the third such offense, revoke the license of the physician.
III.(a) The board shall prepare and submit an annual report of its enforcement efforts under this subdivision to the speaker of the house of representatives, the president of the senate, and the governor, which shall contain the following items:
(1) Number of violations investigated, by section of this subdivision;
(2) Number of physicians complained against;
(3) Number of physicians investigated;
(4) Penalties imposed; and
(5) Such other information as any committee of the general court shall require.
(b) Such reports shall be available for public inspection under RSA 91-A and copying.
3 Effective Date. This act shall take effect January 1, 2011.
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HB 1662-FN - FISCAL NOTE
AN ACT relative to consent for abortions.
FISCAL IMPACT:
The Judicial Branch, Department of Health and Human Services, Judicial Council, Department of Justice, Department of Corrections, and New Hampshire Association of Counties state this bill may increase state and county expenditures, and state revenue by an indeterminable amount in FY 2011 and each year thereafter. This bill will have no fiscal impact on local expenditures, or county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill would enact RSA 132: 29 through 46, which would be known as the "Abortion Control Act." The proposed act has an inordinate number of potential points of fiscal impact on the Branch, numbering at least forty. These can be divided into three groups: potential criminal actions; potential civil actions in either the district, superior, or supreme courts, as well as in the family division; and potential administrative proceedings which could result in administrative appeals. In none of the three groups does the Branch have any information on how many new cases may arise under the provisions of the proposed act. Eighteen sections of the proposed act can give rise to criminal actions at three different levels. Felonies are provided in the following sections:
• 132:30, IV – abortions performed in violation of section 30;
• 132:38, IV – abortions performed where gestational age is 24 or more weeks;
• 132:39, II – violations of provisions re infanticide;
• 132:43, I – violations of provisions re fetal experimentation; and
• 132:45, III – falsely indentifying oneself as the parent or legal guardian of a minor.
Class A misdemeanors are provided in the following sections:
• 132:31, III – physician performing abortion without certification (subsequent offense);
• 132:37, II – falsification of reports of gestational age;
• 132:38, IV – violation of 132:38, III (subsequent offense);
• 132:40, II – paying or receiving a referral fee re an abortion;
• 132:40, IX(b) – disclosure or delivery of a false report or record;
• 132:42, VIII – violation of 132:42, VI or VII; and
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• 132:45, IV – false statements.
Class B misdemeanors are provided in the following sections:
• 132:31, III – physician performing abortion without certification (first offense);
• 132:38, IV – violation of 132:38, III (first offense);
• 132:40, I – accepting payment without determination of pregnancy or knowing of erroneous determination;
• 132:41, III – failure to submit unborn child or tissue remains to pathologist or failure of pathologist to report;
• 132:41, V(d) – improper disclosure of reports required by 132:41, I or VIII; and
• 132:45, II – misleading a public servant.
The Branch estimates the per charge costs for criminal cases of the type specified above, using current salary levels and not including the costs of an appeal as follows -
• Routine Felony $335.98
• Class A Misdemeanor $51.14
• Class B Misdemeanor $36.89
The Branch states eleven sections of the proposed act can give rise to civil actions at different court levels. The family division may be impacted in the following sections:
• 132:32, VI(b)(8) – assistance in preparing applications to court re parental consent;
• 132:39, III – inquiry re lack of parental consent preventing treatment of fetus.
Either the superior court or the district court may be impacted in the following section:
• 132:40, VI(b), – collection of civil penalties imposed by DHHS.
The superior court may be impacted by the civil actions which can be brought pursuant to the following sections:
• 132:32, IX – for failure to comply with 132:32 re parental consent, including exemplary damages;
• 132:36, V – for failure to comply with 132:36 re spousal notice, including $5,000 punitive damages and attorney's fees;
• 132:40, IV – for requiring an abortion to be performed against one's conscience, including $5,000 punitive damages; and
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• 132:44 – against physicians for violating 132:30 or 31, including $5,000 punitive damages and attorney's fees.
The superior court may be impacted by the equity actions which can be brought pursuant to the following sections:
• 132:32, III – to authorize an abortion without parental consent, with a decision required in three business days, and providing for the appointment of a guardian ad litem and counsel in 132:32, VI(a);
• 132:32, VII – petition against coercion to undergo an abortion, and providing for the appointment of counsel; and
• 132:41, V(b) – to allow disclosure of reports filed in accordance with 132:41, I or VIII.
The supreme court may be impacted by appeals from the superior court provided for in the following sections:
• 132:32, VI(d) and VIII – right to appeal if the superior court fails to render a decision in three business days on a petition to authorize an abortion without parental consent.
The Branch estimates the per charge costs for cases of the types discussed above using current salary levels and not including the costs of an appeal as follows
• Routine Civil Case in Superior Court $303.93
• Complex Civil Case in Superior Court $559.43
• Routine Equity Case in Superior Court $184.21
• Complex Equity Case in Superior Court $506.50
The Branch states eleven sections of the proposed act can give rise to administrative proceedings which could be appealed to the supreme court. The administrative proceedings in the proposed act are in two categories. The first are instances where certain actions require a finding of "unprofessional conduct" by the board of medicine. Pursuant to RSA 329:17, VIII, such decisions are appealable to the supreme court. The following seven sections mandate such a finding of "unprofessional conduct" -
• 132:30, IV – a physician performing an abortion in violation of section 30:
• 132:31, III – a physician violating section 31 re informed consent;
• 132:32, IX – performing an abortion in violation of section 32 re parental consent;
• 132:36, V – physician violating section 36 re spousal notice;
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• 132:37, II – physician failing to conform to section 37 re determining gestational age:
• 132:40, III – failing to conform to regulations re determining the Rh status; and
• 132:41, IX(a) – failing to keep required records.
In addition, the following four sections provide for civil penalties to be determined by DHHS. Any such civil penalty would be appealable to the supreme court -
• 132:33, II(b) – failing to comply with rules re abortion facilities ($500 per day);
• 132:40, V(b) – failing to file required report, or keep records, or the filing of a false report ($50 per day);
• 132:40, VI(b) – failing to post notice re Right of Conscience (up to $5,000 per violation) and
• 132:43, II(f) – improper use of fetal tissues or organs (up to $5,000 per violation).
The Branch has no information on how many appeals may arise from the proposed act. The supreme court has discretionary review of such appeals; therefore, another variable is whether the court accepts the appeal for full appellate review, accepts it for more limited review, or declines the appeal. Such appeals are too speculative to arrive at a conclusion regarding fiscal impact. Suffice it to say, even one appeal accepted for full appellate consideration could result in a fiscal impact to the Branch in excess of the $10,000 threshold. The Branch states the possible impacts run the gamut from multiple types of civil actions to class A and B misdemeanors, to felonies, and to supreme court appeals. The Branch cannot estimate the number or types of cases that could occur under it. With the notoriety that any case regarding abortion would have, even one case could reach the fiscal impact threshold. The exact fiscal impact cannot be determined at this time.
The Department of Health and Human Services (DHHS) states this bill requires the informed consent of a pregnant woman before an abortion may be performed and requires parental consent in the case of a minor. The bill will require the Department to publish printed materials relative to options available to women. This information shall also be available on the internet and at the option of the Department provide a toll-free, 24-hour a day telephone number to obtain orally the written information. The Department will also be required to adopt rules with respect to performance of abortions, with respect to facilities, and to assume that prior to the performance of any abortion, the maternal Rh status shall be determined and that anti-Rh sensitization prophylaxis shall be provided to each patient at risk of sensitization
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unless the patient refuses to accept the treatment. The Department will also be required to publish forms for the purpose of providing the signed statements required notifications. The Department will also be required to publish forms and receive reports quarterly from facilities, which an abortion was performed, showing the total number of abortions, performed in each trimester of pregnancy. The reports will also detail each abortion performed in New Hampshire. The Department shall prescribe a form on which a pathologist may report any evidence of absence of pregnancy, live birth or viability and the Department will prepare a comprehensive annual statistical report for submission to the Legislature and Governor. The bill will also require that all reports of maternal deaths occurring within the state arising from pregnancy, childbirth or intentional abortion in every case state the cause of death, duration of the woman’s pregnancy when her death occurred and whether or not the woman was under the care of a physician during her pregnancy prior to her death and shall issue rules to ascertain such data. The Department will also be required to publish forms and receive reports relative to the initial examination of a women in which a physician is called upon to provide medical care or treatment to a woman who is in need of medical care because of a complication or complications resulting, if the good faith judgment of the physician, from having undergone an abortion or attempted abortion. The Department may also assess and collect a civil penalty upon any person who procures, sells, or uses any fetal tissue or organ in violation of this section. Although this bill does not establish positions or contain an appropriation, the Department assumes it will need to hire a full-time Program Specialist II position (LG 21), and a three—quarter time Program Planner III position (LG 25) to do the work outlined in this bill. Assuming an effective date of January 1, 2011, the Department estimates the fiscal impact of this bill, including salary and benefits, at approximately $98,685 in FY 2011, $145,677 in FY 2012, $150,516 in FY 2013, and $155,441 in FY 2014.
The Judicial Council states this bill may result in an indeterminable increase in state general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor and $756.25 per felony level offense 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 and a cap of $4,100 for a felony level offense. 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
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requested and approved by the court during the defense of a case or during an appeal. The exact fiscal impact cannot be determined at this time.
The Department of Justice states the creation of the new offenses in the bill would not result in a fiscal impact on the prosecution or appellate responsibilities of the Department. However, a violation of the bill may trigger a complaint before the applicable medical licensing board. There would be some fiscal impact to the Department by the Civil Bureau for client counseling duties to the relevant board. If the Administrative Prosecutions Unit investigates and prosecutes a complaint before a licensing board for violations under the bill, the services of an assistant attorney general, investigator, and paralegal would be necessary. The Department is unable to determine how many cases, if any, would be generated as a result of this bill, and is unable to determine the exact fiscal impact at this time.
The Department of Corrections states crime and arrest data is not available in sufficient detail to predict the number of individuals who would likely be subject to this legislation. The average annual cost of incarcerating an individual in the general prison population for FY 2009 was $33,110. The cost to supervise an offender by the Department’s Division of Field Services for FY 2009 was $744.
The New Hampshire Association of Counties states to the extent any fewer individuals are convicted, and sentenced to incarceration, the counties may have decreased expenditures. The Association is unable to determine the number of individuals who might be impacted by the proposed bill. The average cost to incarcerate an individual in a county facility is $35,342 a year.