HB 1328 - AS INTRODUCED
2016 SESSION
\t16-2407
\t01/04
HOUSE BILL\t1328
AN ACT\tlimiting pregnancy terminations to pregnancies of 20 weeks or less.
SPONSORS:\tRep. Hagan, Rock. 4; Rep. Notter, Hills. 21; Rep. Seidel, Hills. 28
COMMITTEE:\tJudiciary
-----------------------------------------------------------------
ANALYSIS
\tThis bill establishes the pain-capable unborn child protection act which prevents abortions beyond 20 weeks gestation.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2407
\t01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\tlimiting pregnancy terminations to pregnancies of 20 weeks or less.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 Findings and Purpose. The general court hereby finds the following:
\t\tI. Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.
\t\tII. By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.
\t\tIII. In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
\t\tIV. Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.
\t\tV. For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia. In the United States, surgery of this type is being performed by 20 weeks after fertilization and earlier in specialized units affiliated with children’s hospitals.
\t\tVI. The position, asserted by some physicians, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.
\t\tVII. Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.
\t\tVIII. In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
\t\tIX. Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.
\t\tX. The position, asserted by some commentators, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery.
\t\tXI. Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.
\t\tXII. It is the purpose of the state of New Hampshire to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which sub spatial medical evidence indicates that they are capable of feeling pain.
\t2 New Chapter; Pain-Capable Unborn Child Protection Act. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
Pain-Capable Unborn Child Protection Act
\t132-B:1 Title. This chapter shall be known and may be cited as the Pain-Capable Unborn Protection Act.
\t132-B:2 Definitions. In this chapter:
\t\tI. "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device:
\t\t\t(a) To intentionally kill the unborn child of a woman known to be pregnant; or
\t\t\t(b) To intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than:
\t\t\t\t(1) After viability to produce a live birth and preserve the life and health of the child born alive; or
\t\t\t\t(2) To remove a dead unborn child.
\t\tII. "Attempt", with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.
\t\tIII. "Counseling" means counseling provided by a licensed counselor, or a victim's rights advocate provided by a law enforcement agency.
\t\tIV. "Facility" means any medical or counseling group, center or clinic and includes the entire legal entity, including any entity that controls, is controlled by, or is under common control with such facility and which is licensed under RSA 151.
\t\tV. "Fertilization" means the fusion of human spermatozoon with a human ovum.
\t\tVI. "Medical treatment" means treatment provided at a hospital licensed under RSA 151 or operated under authority of a federal agency, at a medical clinic licensed or operated under authority of a federal agency, or from a personal physician licensed under RSA 329.
\t\tVII. "Minor" means an individual who has not attained the age of 18 years.
\t\tVIII. "Perform", with respect to an abortion, includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.
\t\tIX. "Physician" means a person licensed under RSA 329.
\t\tX. "Post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
\t\tXI. "Probable post-fertilization age of the unborn child" means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.
\t\tXII. "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
\t\tXIII. "Unborn child" means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive.
\t\tXIV. "Woman" means a female human being whether or not she has reached the age of majority.
\t132-B:3 Unlawful Conduct; Exceptions.
\t\tI. It shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in paragraph II.
\t\tII.(a) The physician performing or attempting the abortion shall first make a determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the pregnant woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age.
\t\t\t(b) Except as provided in paragraph III, the abortion shall not be performed or attempted, if the probable postfertilization age, as determined under paragraph II, of the unborn child is 20 weeks or greater.
\t\tIII. Paragraph I shall not apply if:
\t\t\t(a) In reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions;
\t\t\t(b) The pregnancy is the result of rape against an adult woman, and at least 48 hours prior to the abortion:
\t\t\t\t(1) She has obtained counseling for the rape; or
\t\t\t\t(2) She has obtained medical treatment for the rape or an injury related to the rape; or
\t\t\t\t(3) The pregnancy is a result of rape against a minor or incest against a minor, and the rape or incest has been reported at any time prior to the abortion to either:
\t\t\t\t\t(A) A government agency legally authorized to act on reports of child abuse; or
\t\t\t\t\t(B) A law enforcement agency.
\t\tIV. Notwithstanding the definitions of "abortion" and "attempt" an abortion in this chapter, a physician terminating or attempting to terminate a pregnancy under an exception provided by paragraph III shall do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.
\t\tV. If, in reasonable medical judgment, the pain-capable unborn child has the potential to survive outside the womb, the physician who performs or attempts an abortion under an exception provided by paragraph III shall ensure a second physician trained in neonatal resuscitation is present and prepared to provide care to the child consistent with the requirements of paragraph VI.
\t\tVI. When a physician performs or attempts an abortion in accordance with this section, and the child is born alive, the following shall apply:
\t\t\t(a) Any health care practitioner present at the time shall humanely exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to a child born alive at the same gestational age in the course of a natural birth.
\t\t\t(b) Following the care required to be rendered under subparagraph, the child born alive shall be immediately transported and admitted to a hospital.
\t\t\t(c) A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with the requirements of this subparagraph shall immediately report the failure to the department.
\t\tVII.(a) A physician who performs or attempts to perform an abortion under an exception provided by subparagraph III(b) shall, prior to the abortion, place in the patient medical file documentation from a facility provided by a law enforcement agency that the adult woman seeking the abortion obtained medical treatment or counseling for the rape or an injury related to the rape.
\t\t\t(b) A physician who performs or attempts to perform an abortion under an exception provided by subparagraph III(c) shall, prior to the abortion, place in the patient medical file documentation from a government agency legally authorized to act on reports of child abuse that the rape or incest was reported prior to the abortion; or, as an alternative, documentation from a law enforcement agency that the rape or incest was reported prior to the abortion.
\t\tVIII.(a) The physician who intends to perform or attempt to perform an abortion under the provisions of paragraph III shall not perform any part of the abortion procedure without first obtaining a signed informed consent authorization form in accordance with this subparagraph.
\t\t\t(b) The informed consent authorization form shall be presented in person by the physician and shall consist of:
\t\t\t\t(1) A statement by the physician indicating the probable post-fertilization age of the pain-capable unborn child;
\t\t\t\t(2) A statement that federal law allows abortion after 20 weeks fetal age only if the mother’s life is endangered by a physical disorder, physical illness, or physical injury, when the pregnancy was the result of rape, or an act of incest against a minor;
\t\t\t\t(3) A statement that the abortion must be performed by the method most likely to allow the child to be born alive unless this would cause significant risk to the mother;
\t\t\t\t(4) A statement that in any case in which an abortion procedure results in a child born alive, federal law requires that child to be given every form of medical assistance that is provided to children spontaneously born prematurely, including transportation and admittance to a hospital;
\t\t\t\t(5) A statement that these requirements are binding upon the physician and all other medical personnel who are subject to criminal and civil penalties and that a woman on whom an abortion has been performed may take civil action if these requirements are not followed; and
\t\t\t\t(6) Affirmation that each signer has filled out the informed consent form to the best of their knowledge and understands the information contained in the form.
\t\t\t(c) The informed consent authorization form shall be signed in person by the woman seeking the abortion, the physician performing or attempting to perform the abortion, and a witness.
\t\t\t(d) The physician performing or attempting to perform an abortion must retain the signed informed consent form in the patient’s medical file.
\t\tIX. Paragraph (j)(2) of 45 C.F.R. section 164.530 shall apply to documentation required to be placed in a patient’s medical file pursuant to paragraph VII and a consent form required to be retained in a patient’s medical file pursuant to paragraph VIII in the same manner and to the same extent as such paragraph applies to documentation required by paragraph (j)(1) of such section.
\t\tX. Paragraphs IV, V, and VIII shall not apply if, in reasonable medical judgment, compliance with such paragraphs would pose a greater risk of:
\t\t\t(a) The death of the pregnant woman; or
\t\t\t(b) The substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.
\t\t\t(c) Notwithstanding the definitions of the terms "medical treatment" and "counseling" in RSA 132-B:2 the counseling or medical treatment described in paragraph III(b) shall not be provided by a facility that performs abortions unless that facility is a hospital.
\t\t\t(d) The requirements of paragraph III(b) do not apply if the rape has been reported at any time prior to the abortion to a law enforcement agency or victim assistance personnel.
\t\t\t(e)(1) The physician who performs or attempts to perform an abortion under an exception provided by paragraph III shall comply with such applicable state laws that are in effect as the State’s Attorney General may designate, regarding reporting requirements in cases of rape or incest.
\t\t\t\t(2) The physician who intends to perform an abortion on a minor under an exception provided by paragraph III shall comply with RSA 132:32 - RSA 132:36.
\t132-B:4 Report Required.
\t\tI. Any physician who performs or induces or attempts to perform or induce an abortion shall report to the department, on a schedule and in accordance with rules adopted pursuant to RSA 541-A as follows:
\t\t\t(a) If a determination of probable postfertilization age was made, the probable postfertilization age determined and the method and basis of the determination.
\t\t\t(b) If a determination of probable postfertilization age was not made, the basis of the determination that a medical emergency existed.
\t\t\t(c) If the probable postfertilization age was determined to be 20 or more weeks, the basis of the determination that the pregnant woman had a condition which so complicated her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, or the basis of the determination that it was necessary to preserve the life of an unborn child.
\t\t\t(d) The method used for the abortion and, in the case of an abortion performed when the probable postfertilization age was determined to be 20 or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive or, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would other available methods.
\t\tII. By June 30 of each year, the department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in paragraph I. Each such report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed.
\t\tIII. Any physician who fails to submit a report by the end of 30 days following the due date shall be subject to a late fee of $500 for each additional 30-day period or portion of a 30-day period the report is overdue. Any physician required to report in accordance with this chapter who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought in the manner in which actions are brought to enforce RSA 329, be directed by a court of competent jurisdiction to submit a complete report within a time period stated by court order or be subject to civil contempt. Failure by any physician to conform to any requirement of this section, other than late filing of a report, constitutes unprofessional conduct pursuant to RSA 329. Failure by any physician to submit a complete report in accordance with a court order constitutes unprofessional conduct pursuant to RSA 329. Intentional or reckless falsification of any report required under this section is a class A misdemeanor.
\t132-B:5 Rulemaking. The commissioner of the department shall adopt rules, pursuant to RSA 541-A, relative to:
\t\tI. A schedule of reports due under RSA 132-B:4.
\t\tII. Content and format of all forms required under this chapter.
\t132-B:6 Penalty. Any person who intentionally or recklessly performs or attempts to perform an abortion in violation of RSA 132-B:3 of this act is guilty of a class A felony. No penalty shall be assessed against the woman upon whom the abortion is performed or attempted to be performed.
\t132-B:7 Actions.
\t\tI. Any woman upon whom an abortion has been performed in violation of this chapter or the father of the unborn child who was the subject of such an abortion may maintain an action against the person who performed the abortion in an intentional or a reckless violation of this chapter for actual damages. Any woman upon whom an abortion has been attempted in violation of this chapter may maintain an action against the person who attempted to perform the abortion in an intentional or a reckless violation of this chapter for actual damages.
\t\tII. A cause of action for injunctive relief against any person who has intentionally violated this chapter may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of this chapter, any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of this chapter, by a county attorney with appropriate jurisdiction, or by the attorney general. The injunction shall prevent the abortion provider from performing further abortions in violation of this chapter in this state.
\t\tIII. If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for reasonable attorney’s fees in favor of the plaintiff against the defendant.
\t\tIV. If judgment is rendered in favor of the defendant and the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney’s fees in favor of the defendant against the plaintiff.
\t\tV. No damages or attorney’s fees shall be assessed against the woman upon whom an abortion was performed or attempted to be performed except as provided in paragraph IV.
\t132-B:8 Public Disclosure. In every civil or criminal proceeding or action brought under this chapter, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under RSA 132-B:8 shall do so under a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
\t132-B:9 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of the chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are severable.
\t3 Effective Date. This act shall take effect January 1, 2017.