HB 1560-FN - AS INTRODUCED
2016 SESSION
\t16-2065
\t01/04
HOUSE BILL\t1560-FN
AN ACT\trelative to abortion procedures.
SPONSORS:\tRep. Moore, Hills. 21; Rep. R. Christie, Hills. 6; Rep. Prudhomme-O'Brien, Rock. 6; Rep. Marston, Hills. 19; Rep. Spillane, Rock. 2; Rep. Notter, Hills. 21; Sen. Avard, Dist 12
COMMITTEE:\tJudiciary
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ANALYSIS
\tThis bill establishes the New Hampshire unborn child protection from dismemberment abortion act.
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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\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2065
\t01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to abortion procedures.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Chapter; New Hampshire Unborn Child Protection From Dismemberment Abortion Act. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
New Hampshire Unborn Child Protection From Dismemberment Abortion Act
\t132-B:1 Name of Act. This bill may be known and cited as the New Hampshire unborn child protection from dismemberment act.
\t132-B:2 In this chapter:
\t\tI. "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy.
\t\tII. "Dismemberment abortion" means, with the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp a portion of the unborn child's body in order to cut or rip it off. "Dismemberment abortion" shall not include an abortion which uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, although it shall include an abortion in which a dismemberment abortion is used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.
\t\tIII. "Medical emergency" means a condition that, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the woman or for which a delay necessary to comply with the applicable statutory requirements will create serious risk of substantial and irreversible physical impairment of a major bodily function. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.
\t\tIV. "Physician" means a person licensed to practice medicine under RSA 329.
\t132-B:3 Dismemberment Abortions.
\t\tI.(a) No person shall perform, or attempt to perform, a dismemberment abortion on an unborn child unless:
\t\t\t\t(1) The dismemberment abortion is necessary to preserve the life of the pregnant woman; or
\t\t\t\t(2) A continuation of the pregnancy will cause a substantial and irreversible physical impairment of a major bodily function of the pregnant woman.
\t\t\t(b) No condition shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or in substantial and irreversible physical impairment of a major bodily function.
\t\tII. No woman upon whom an abortion is performed or attempted to be performed shall be liable for performing or attempting to perform a dismemberment abortion. No nurse, technician, secretary, receptionist, or other employee or agent who is not a physician, but who acts at the direction of a physician, and no pharmacist or other individual who is not a physician, but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician shall be liable for performing or attempting to perform a dismemberment abortion.
\t132-B:4 Injunctive Relief. The attorney general or any county attorney with appropriate jurisdiction may bring a cause of action for injunctive relief against a person who has performed or attempted to perform a dismemberment abortion in violation of RSA 132-B:3. Any injunctive relief ordered pursuant to an action filed under this section shall prohibit the defendant from performing or attempting to perform any dismemberment abortions in violation of RSA 132-B:3.
\t132-B:5 Civil Action.
\t\tI. A cause of action for civil damages against a person who has performed a dismemberment abortion in violation of RSA 132-B:3 may be maintained by the following persons, unless, in a case where the plaintiff is not the woman upon whom the abortion was performed, the pregnancy resulted from the plaintiff's criminal conduct:
\t\t\t(a) A woman upon whom a dismemberment abortion has been performed in violation of RSA 132-B:3;
\t\t\t(b) The father of the unborn child, if married to the woman at the time the dismemberment abortion was performed; or
\t\t\t(c) The parents or custodial guardians of the woman, if the woman has not attained the age of 18 years at the time of the abortion or has died as a result of the abortion.
\t\tII. Damages awarded in such an action shall include:
\t\t\t(a) Money damages for all injuries, psychological and physical, occasioned by the dismemberment abortion;
\t\t\t(b) Injunctive relief; and
\t\t\t(c) Reasonable attorney fees awarded in accordance with paragraph III.
\t\tIII.(a) If judgment is rendered in favor of the plaintiff in an action brought under RSA 132-B:4, or this section, the court shall award reasonable attorney fees to the plaintiff in addition to any other relief that is awarded.
\t\t\t(b) If judgment is rendered in favor of the defendant in an action brought under RSA 132-B:4, or this section, and the court finds that the plaintiff's action was frivolous and brought in bad faith, the court shall award reasonable attorney fees to the defendant in addition to any other relief that is awarded.
\t\t\t(c) No attorney fees shall be assessed against the woman upon whom a dismemberment abortion was performed or attempted to be performed except in accordance with subparagraph (b).
\t132-B:6 Criminal Penalty. Any person violating RSA 132-B:3 shall be guilty of a class B misdemeanor for a first offense. For a second or subsequent offense, the person shall be guilty of a class A felony.
\t132-B:7 Anonymity. In every civil, criminal, or administrative proceeding or action arising out of a violation of RSA 132-B:3, the court shall rule whether the anonymity of any woman upon whom an unlawful abortion has been performed or attempted to be performed 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 such woman's 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 unlawful abortion has been performed or attempted to be performed, anyone other than a public official who brings an action arising out of a violation of RSA 132-B:3, 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:8 Chapter Construed. Nothing in this chapter shall be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.
\t132-B:9 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held to be invalid, the invalidity shall not affect any other provision or the application of such provision to other persons or circumstances, and to this end the provisions of this chapter are severable.
\t2 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2065
\t\t\t\t\t\t\t\t\t\t\t11/25/15
HB 1560-FN- FISCAL NOTE
AN ACT\trelative to abortion procedures.
FISCAL IMPACT:
The Department of Justice, Judicial Branch and Department of Corrections state this bill, as introduced, may increase state expenditures by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on state, county and local revenue or county and local expenditures.
METHODOLOGY:
The Department of Justice states this bill would criminalize the performance of a dismemberment abortion. A first offense would be a class B misdemeanor and any subsequent offense would constitute a class A felony. The Department states because such offenses are typically prosecuted by local and county prosecutors, the creation of these new criminal offenses is not likely to have a fiscal impact on the Department. In addition, the Department states the bill provides that the Attorney General or a county attorney could seek injunctive relief against any person who has performed or attempted to perform a dismemberment abortion. The Department indicates filing and prosecuting an injunction action would require approximately 25 hours of an attorney’s time. The Department states, since it is not able to estimate the number of possible injunction actions it cannot estimate the fiscal impact.
The Judicial Branch states there are several sections of the bill which could create a fiscal impact on the Branch. The Branch has no information on how many actions for injunctive relief, civil damage actions, class B misdemeanors, or class A felonies may result from passage of this bill. The Branch does have information on the average cost of processing such cases:
•\tProposed RSA 132-B:4 provides for injunctions against a person who has performed or attempted to perform a dismemberment abortion. Such actions would be classified as complex equity cases in the superior court. The estimated cost to the Branch of an average complex equity case will be $716.75 in FY 2017 and $740.15 in FY 2018.
•\tProposed RSA 132-B:5 provides for civil damage actions, including attorney’s fees against a person who has performed a dismemberment abortion. Such actions would be classified as complex civil cases in the superior court. The estimated cost to the Branch of an average complex civil case will be $723.90 in FY 2017 and $755.65 in FY 2018.
•\tProposed RSA 132-B:6 provides for a class B misdemeanor for a first offense of violating proposed RSA 132-B:3, which is the prohibition against dismemberment abortions. The estimated cost to the Branch of an average class B misdemeanor in the district division of the circuit court will be $49.56 in FY 2017 and $52.61 in FY 2018.
•\tProposed RSA 132-B:6 provides for a class A felony for a second or subsequent offense of violating proposed RSA 132-B:3. Such actions would be classified as a routine criminal case in the superior court. The estimated cost to the Branch of an average routine criminal case in the superior court will be $448.84 in FY 2017 and $469.80 in FY 2018.
The Judicial Branch states the amounts above do not consider cost of any appeals that may be taken following the trial. In addition, the Branch states the cost figures for these cases are based on studies of judicial and clerical weighted caseload times that are now eight to ten years old and changes have occurred during that time with respect to processing these cases.
The Department of Corrections states there would be no fiscal impact to the Department if a person was found guilty of a first offense which is a class B misdemeanor. The Department has no information on which to estimate the number of second offenses, which would be class A felonies, and which may lead to incarceration. The Department of Corrections cannot determine the fiscal impact of this bill, but states the average annual cost of incarcerating an individual in the general population for the fiscal year ending June 30, 2015 was $34,336. The average cost to supervise an individual by the Department’s Division of Field Services for the fiscal year ending June 30, 2015 was $520.
The Judicial Council states since this bill regulates the conduct of a medical doctor acting within the scope of his or her professional responsibilities, it is assumed that anyone charged within an offense would be defended or indemnified by the medical provider’s insurance. The Council assumes it would not be obliged to provide representation to the accused and would experience no change in expenditures for defense of the indigent accused as a result of this bill.
The New Hampshire Association of Counties indicates this bill would have no fiscal impact on county revenue or expenditures.