HB 1623-FN AS INTRODUCED
2016 SESSION
\t16-2586
\t01/05
HOUSE BILL\t1623-FN
AN ACT\tprohibiting an abortion based on genetic abnormalities.
SPONSORS:\tRep. Cordelli, Carr. 4; Rep. Gould, Hills. 7; Rep. Groen, Straf. 10; Rep. Souza, Hills. 43; Rep. Moore, Hills. 21; Rep. Wuelper, Straf. 3; Rep. LeBrun, Hills. 32; Rep. Leeman, Straf. 23; Rep. V. Sullivan, Hills. 16
COMMITTEE:\tJudiciary
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ANALYSIS
\tThis bill establishes the nondiscrimination against unborn children with genetic abnormalities 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\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2586
\t01/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\tprohibiting an abortion based on genetic abnormalities.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Chapter; Nondiscrimination Against Unborn Children With Genetic Abnormalities. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
NONDISCRIMINATION AGAINST UNBORN CHILDREN
WITH GENETIC ABNORMALITIES
\t132-B:1 Title. This chapter shall be known and may be cited as the nondiscrimination against unborn children with genetic abnormalities act.
\t132-B:2 Definitions. In this chapter:
\t\tI. "Abortion" means the use or prescription of any instrument, medicine, drug, or 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. "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of this chapter.
\t\tIII. Genetic abnormality" means any defect, disease, or disorder that is inherited genetically. The term genetic abnormality includes, but is not limited to: any physical disability, any mental disability or retardation, any physical disfigurement, scoliosis, dwarfism, Down syndrome, albinism, amelia, or any other type of physical or mental abnormality or disease.
\t\tIV. "Physician" means any person licensed to practice medicine and surgery or osteopathic medicine under RSA 329.
\t\tV. "Unborn child" or "fetus" each mean an individual organism of the species homo sapiens from fertilization until live birth.
\t\tVI. "Woman" means a female human being whether or not she has reached the age of majority.
\t132-B:3 Prohibition on Abortion for a Genetic Abnormality.
\t\tI.(a) No person shall intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely because the unborn child has been diagnosed with either:
\t\t\t\t(1) A genetic abnormality, or
\t\t\t\t(2) A potential for a genetic abnormality.
\t\t\t(b) If this section is held invalid as applied to the period of pregnancy prior to viability, then it shall remain applicable to the period of pregnancy subsequent to viability.
\t132-B:4 Exclusion of Liability for Woman Who Undergoes Abortion Prohibited Under this Chapter.
\t\tI. Any woman upon whom an abortion in violation of this chapter is performed or attempted shall not be prosecuted under this chapter for a conspiracy to violate this chapter or otherwise held criminally or civilly liable for such violation.
\t\tII. In any criminal proceeding or action brought under this chapter, any woman upon whom an abortion in violation of this chapter is performed or attempted is entitled to all rights, protections, and notifications afforded to crime victims under state law.
\t\tIII. In every civil proceeding or action brought under this chapter, the anonymity of the woman upon whom an abortion is performed or attempted shall be preserved from public disclosure unless she gives her consent to such disclosure. A court of competent jurisdiction, upon motion or sua sponte, 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.
\t132-B:5 Criminal Penalty. Any physician or person who intentionally or recklessly performs or attempts to perform an abortion in violation of RSA 132-B:3 shall be fined not less than $10,000 nor more than $100,000, or be imprisoned not less than one year nor more than 10 years, or both. No penalty shall be assessed against the woman upon whom the abortion is performed or attempted to be performed.
\t132-B:6 Civil Actions.
\t\tI. Any woman upon whom an abortion has been performed or attempted 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.
\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 plaintiffs 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:7 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:8 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.
\t2 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2586
\t\t\t\t\t\t\t\t\t\t\t12/16/15
HB 1623-FN- FISCAL NOTE
AN ACT\tprohibiting an abortion based on genetic abnormalities.
FISCAL IMPACT:
The Judicial Branch and Departments of Corrections and Justice 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 county and local expenditures, or on state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill prohibits the performance or attempted performance of an abortion knowing that the pregnant woman is seeking an abortion solely because the fetus has a genetic abnormality or the potential for one. The bill will potentially impact the Branch in the following ways: (1) proposed RSA 132-B:5 provides for a felony-level offense for any physician or person who intentionally or recklessly performs or attempts to perform an abortion in violation of proposed RSA 132-B:3; (2) proposed RSA 132-B:6, I, provides for civil damage actions, including attorney’s fees, against a person who intentionally or recklessly violates proposed RSA chapter 132-B; and (3) proposed RSA 132-B:6, II provides for injunctions against any person who has intentionally violated the statute. With respect to (1), the Branch is unable to estimate the number of new felonies that may result from the bill. The Branch is able to project, however, the average cost of processing such cases will be $448.84 per case in FY 2017 and $469.80 per case in FY 2018. With respect to (2), the Branch is likewise unable to estimate the number of civil damage actions that will be filed as a result of the bill, but projects the average cost of processing such cases will be $723.90 per case in FY 2017 and $755.65 per case in FY 2018. Finally, with respect to (3), the Branch is unable to estimate the number of injunction actions that will be filed as a result of the bill, but projects the average cost of processing such cases to be $716.75 in FY 2017 and $740.15 in FY 2018. It should be noted average case cost estimates for FY 2017 and FY 2018 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Department of Corrections states that terms of incarceration of one year or less will have no fiscal impact, as offenders will be housed at the various county houses of correction. Terms of incarceration greater than one year will result in incarceration in a state facility. The Department states that in FY 2015, the average cost of incarcerating an individual in a state facility was $34,336.
The Department of Justice states that because such offenses would be prosecuted by county prosecutors, the bill will not impact the Department's prosecutorial function. The Department's role will be limited to handling appeals, which the Department expects will be handled within its current budget.
The Department of Health and Human Services, Judicial Council, and NH Association of Counties state this bill will have no fiscal impact.