Bill Text - HB1679 (2012)

(New Title) relative to partial-birth abortion.


Revision: March 14, 2012, midnight

HB 1679-FN – AS INTRODUCED

2012 SESSION

12-2356

01/09

HOUSE BILL 1679-FN

AN ACT relative to partial-birth abortions and third trimester abortions.

SPONSORS: Rep. Terrio, Hills 14

COMMITTEE: Judiciary

ANALYSIS

This bill prohibits partial-birth abortions and third trimester abortions.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

12-2356

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT relative to partial-birth abortions and third trimester abortions.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Certain Abortions Prohibited. Amend RSA 329 by inserting after section 31 the following new section:

329:32 Certain Abortions Prohibited.

I. In this section:

(a) “Partial-birth abortion” means an abortion in which the physician, an individual acting under the delegatory authority of the physician, or any other individual performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or in the case of breech presentation, any part of the fetal trunk past the naval is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus, and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

(b) “Physician” means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state, or any individual legally authorized by the state to perform abortions; provided, however, that any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion or a third trimester abortion, shall be subject to the provisions of this section.

II. Except as provided in paragraph III, a physician, an individual performing an act, task, or function under the delegatory authority of a physician, or any other individual who is not a physician or not otherwise legally authorized to perform an abortion who knowingly performs a partial-birth abortion or a third trimester abortion and kills a human fetus is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $50,000, or both.

III. It shall not be a violation of paragraph II if in the physician’s reasonable medical judgment a partial-birth abortion or a third trimester abortion is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.

IV. The spouse of the mother at the time of the partial-birth abortion or a third trimester abortion or either parent of the mother if the mother had not attained the age of 18 at the time of the partial-birth abortion or a third trimester abortion may file a civil action against the physician or individual described in paragraph II for a violation of this section, unless the pregnancy is a result of the plaintiff’s criminal conduct or the plaintiff consented to the partial-birth abortion or a third trimester abortion. Notwithstanding any provision of law to the contrary, a plaintiff who prevails in a civil action brought under this section may recover both of the following:

(a) Actual damages, including damages for emotional distress.

(b) Treble damages for the cost of the partial-birth abortion.

V. A woman who obtains or seeks to obtain a partial-birth abortion or a third trimester abortion is not a conspirator to commit a violation of this section.

VI. This section does not create a right to abortion.

VII. Notwithstanding any other provision of this section, a person shall not perform an abortion that is prohibited by law.

VIII. Nothing in this section shall be construed to repeal or amend, explicitly or by implication, any provision of law prohibiting or regulating abortion.

2 Effective Date. This act shall take effect January 1, 2013.

LBAO

12-2356

Revised 01/09/12

HB 1679 FISCAL NOTE

AN ACT relative to partial-birth abortions and third trimester abortions.

FISCAL IMPACT:

      The Judicial Branch, Judicial Council, New Hampshire Association of Counties, and the Departments of Justice and Corrections state this bill will increase state and county expenditures, and state revenue by indeterminable amounts in FY 2013 and each year thereafter. There will be no fiscal impact on local expenditures, or county and local revenue.

METHODOLOGY:

    The Judicial Branch states this bill provides a felony level criminal offense for performing a partial-birth or third trimester abortion and provides a civil action for damages against a physician for performing an abortion in violation of this act. In damage actions, the plaintiffs are entitled to treble damages for the cost of the partial-birth abortion in addition to actual damages. The Branch has no information on which to estimate how many felonies will be prosecuted because of this bill, but it does have information on the average cost of processing the cases in the trial court. The cost to the Branch of an average routine criminal case in superior court is estimated to be $389.84 in FY 2013 and $401.48 in FY 2014. These amounts do not include the cost of any appeals that may be taken following trial. The civil action for damages would be classified as a complex civil case. The Branch has no information on how many civil cases may be brought, but estimates the cost of an average complex civil case in superior court will be $633.82 in FY 2013 and $651.29 in FY 2014, not including the cost of possible appeals. All costs are estimated based on case weight information from the last needs assessment completed in 2005.

    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 $756.25 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is capped at $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.

    The New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.

    The Department of Justice states the criminal offense created by this bill would typically be prosecuted by a county attorney’s office. There would be some fiscal impact to the Department if an appeal is taken to the Supreme Court. The Department states a violation of the bill could also trigger a complaint before the medical licensing board. The Civil Bureau within the Department provides legal counsel to the board. In addition, the Administrative Prosecutions Unit investigates and prosecutes complaints filed before a licensing board. The Department indicates it is not possible to determine if any felony cases would be appealed to the Supreme Court, or how much additional service would be provided by the Civil Bureau and the Administrative Prosecutions Unit.

    The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2011 was $33,698. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2011 was $672.