HB 1636-FN - AS INTRODUCED
2016 SESSION
\t16-2663
\t01/04
HOUSE BILL\t1636-FN
AN ACT\tprohibiting abortions once an unborn child can feel pain.
SPONSORS:\tRep. Groen, Straf. 10; Rep. Hogan, Hills. 34; Rep. Ulery, Hills. 37; Rep. Murotake, Hills. 32; Rep. Seidel, Hills. 28; Rep. Moore, Hills. 21
COMMITTEE:\tJudiciary
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ANALYSIS
\tThis bill establishes the women's health defense act. Under this bill, a physician shall make a determination of the probable gestational age of the unborn child before performing an abortion except in the case of a medical emergency.
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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\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2663
\t01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\tprohibiting abortions once an unborn child can feel pain.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t\tI. The general court hereby finds that:
\t\t\t(a) Abortion can cause serious physical and psychological (both short- and long-term) complications for women, including but not limited to: uterine perforation, uterine scarring, cervical perforation or other injury, infection, bleeding, hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete abortion (retained tissue), pelvic inflammatory disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta previa in subsequent pregnancies, preterm birth in subsequent pregnancies, free fluid in the abdomen, organ damage, adverse reactions to anesthesia and other drugs, psychological or emotional complications including depression, anxiety, sleeping disorders, an increased risk of breast cancer, and death.
\t\t\t(b) Abortion has a higher medical risk when the procedure is performed later in pregnancy. Compared to an abortion at 8 weeks gestation or earlier, the relative risk increases exponentially at higher gestations. L. Bartlett et al., Risk factors for legal induced abortion-related mortality in the United States, OBSTETRICS & GYNECOLOGY 103(4):729 (2004).
\t\t\t(c) In fact, the incidence of major complications is highest after 20 weeks of gestation. J. Pregler & A. DeCherney, WOMEN'S HEALTH: PRINCIPLES AND CLINICAL PRACTICE 232 (2002).
\t\t\t(d) According to the Alan Guttmacher Institute, the risk of death associated with abortion increases with the length of pregnancy, from one death for every one million abortions at or before 8 weeks gestation to one per 29,000 abortions at 16 to 20 weeks gestation and one per 11,000 abortions at 21 or more weeks gestation (citing L. Bartlett et al., Risk factors for legal induced abortion-related mortality in the United States, OBSTETRICS & GYNECOLOGY 103(4):729-737 (2004)).
\t\t\t(e) After the first trimester, the risk of hemorrhage from an abortion, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery, or a blood transfusion.
\t\t\t(f) The state of New Hampshire has a legitimate concern for the public's health and safety. Williamson v. Lee Optical, 348 U.S. 483, 486 (1955).
\t\t\t(g) The state of New Hampshire "has legitimate interests from the outset of pregnancy in protecting the health of women." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992). More specifically, the state of New Hampshire "has a legitimate concern with the health of women who undergo abortions." Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983).
\t\t\t(h) In addition, there is substantial and well-documented medical evidence that an unborn child by at least 20 weeks gestation has the capacity to feel pain during an abortion. K. Anand, Pain and its effects in the human neonate and fetus, N.E.J.M. 317:1321 (1987).
\t\tII. Based on the findings in paragraph I, the general court's purposes in adopting this act are to:
\t\t\t(a) Based on the documented risks to women's health, prohibit abortions at or after 20 weeks gestation, except in cases of a medical emergency.
\t\t\t(b) Prohibit abortions at or after 20 weeks gestation, in part, because of the pain felt by an unborn child.
\t\t\t(c) Define "medical emergency" to encompass "significant health risks," namely only those circumstances in which a pregnant woman's life or a major bodily function is threatened. Gonzales v. Carhart, 550 U.S. 124, 161 (2007).
\t2 New Chapter; Women's Health Defense Act. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
Women's Health Defense Act
\t132-B:1 Title. This chapter may be known and cited as the women's health defense act.
\t132-B:2 Definitions. In this chapter:
\t\tI. "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent 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. Such use, prescription, or means is not an abortion if done with the intent to:
\t\t\t(a) Save the life or preserve the health of the unborn child;
\t\t\t(b) Remove a dead unborn child caused by spontaneous abortion; or
\t\t\t(c) Remove an ectopic pregnancy.
\t\tII. "Attempt to perform" means an act or 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.
\t\tIII. "Conception" means the fusion of a human spermatozoon with a human ovum.
\t\tIV. “Department” means the department of health and human services.
\t\tV. "Gestational age" means the time that has elapsed since the first day of the woman's last menstrual period.
\t\tVI. "Major bodily function" includes, but is not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
\t\tVII. "Medical emergency" means a condition in which an abortion is necessary to preserve the life of the 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, or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.
\t\tVIII. "Medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, healthcare facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein medical care is provided to any person and which is licensed pursuant to RSA 151.
\t\tIX. "Physician" means any person licensed under RSA 329.
\t\tX. "Pregnant" or "pregnancy" means that female reproductive condition of having an unborn child in the woman's uterus.
\t\tXI. "Probable gestational age" means what, in reasonable medical judgment, will with reasonable probability be the gestational age of the unborn child at the time the abortion is considered, performed, or attempted.
\t\tXII. "Reasonable medical judgment" means that medical judgment that would be made by a reasonably prudent physician or other licensed health care provider knowledgeable about the case and the treatment possibilities with respect to the medical condition involved.
\t\tXIII. "Unborn child" means the offspring of human beings from conception until birth.
\t132-B:3 Prohibition.
\t\tI. Except in the case of a medical emergency, no abortion shall be performed, induced, or attempted unless the physician or other licensed health care provider who performs the abortion has first made a determination of the probable gestational age of the unborn child. In making such a determination, the physician shall make such inquiries of the pregnant woman and perform or cause to be performed all such medical examinations, imaging studies, and tests as a reasonably prudent physician knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
\t\tII. Except in a medical emergency, no physician or person shall knowingly perform, induce, or attempt to perform an abortion upon a pregnant woman when the probable gestational age of her unborn child has been determined to be at least 20 weeks.
\t132-B:4 Reporting.
\t\tI. Any physician or other licensed health care provider who performs an abortion pursuant to a medical emergency shall report, in writing, to the medical facility in which the abortion is performed the reason for the determination that a medical emergency existed. The physician's written report shall be included in a written report from the medical facility to the department. If the abortion is not performed in a medical facility, the physician or other licensed health care provider shall report, in writing, the reason for the determination that a medical emergency existed to the department as part of the written report made by the physician to the department. The physician and the medical facility shall retain a copy of the written reports required under this section for not less than 5 years.
\t\tII. Failure to report under this section shall not subject the physician or other licensed health care provider to criminal or civil penalties under RSA 132-B:5 and RSA 132-B:6.
\t\tIII. RSA 132-B:5, II shall not preclude sanctions, disciplinary action, or any other appropriate action by the board of medicine.
\t132-B:5 Criminal Penalties.
\t\tI. Any person who purposely or knowingly violates this chapter shall be guilty of a class B felony.
\t\tII. Any physician or other licensed health care provider who purposely or knowingly performs or induces an abortion in violation of this chapter and thereby kills an unborn child shall be fined not less than $10,000 nor more than $100,000 under this chapter, or be imprisoned not less than one year nor more than 10 years, or both.
\t132-B:6 Civil Remedies.
\t\tI. The woman, the father of the unborn child if married to the mother at the time she receives an abortion in violation of this chapter, and/or, if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the unborn child may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or, if brought by the maternal grandparents, the maternal grandparents consented to the abortion.
\t\tII. Such relief shall include money damages for all psychological and physical injuries occasioned by the violation of this chapter.
\t132-B:7 Review by Board of Medicine.
\t\tI. A physician-defendant or other licensed health care defendant accused of violating this chapter may seek a hearing before the board of medicine as to whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself; and/or as to whether the continuation of the pregnancy would have created a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.
\t\tII. The findings on this issue shall be admissible at the criminal and civil trials of the physician-defendant. Upon a motion of the physician-defendant or other licensed health care defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.
\t132-B:8 Penalties for Medical Facilities.
\t\tI. A medical facility licensed pursuant to RSA 151 in which an abortion is performed or induced in violation of this chapter shall be subject to immediate revocation of its license by the department.
\t\tII. A medical facility licensed pursuant to RSA 151 in which an abortion is performed or induced in violation of this chapter shall lose all state funding for 5 years and shall be required to reimburse the state for funds from the fiscal year in which the abortion in violation of this chapter was performed.
\t132-B:9 Prosecutorial Exclusion. A woman upon whom an abortion in violation of this chapter is performed or induced shall not be prosecuted under this chapter for a conspiracy to violate RSA 132-B:3.
\t132-B:10 Construction.
\t\tI. Nothing in this chapter shall be construed as creating or recognizing a right to abortion.
\t\tII. It is not the intention of this chapter to make lawful an abortion that is currently unlawful.
\t132-B:11 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.
\t132-B:12 Right of Intervention. The general court, by joint resolution, may appoint one or more of its members, who sponsored or cosponsored this chapter in his or her official capacity, to intervene as a matter of right in any case in which the constitutionality of this law is challenged.
\t3 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2663
\t\t\t\t\t\t\t\t\t\t\t12/18/15
HB 1636-FN- FISCAL NOTE
AN ACT\tprohibiting abortions once an unborn child can feel pain.
FISCAL IMPACT:
The Office of Legislative Budget Assistant states this bill, as introduced, may increase state and county expenditures by an indeterminable amount in FY 2017 and each year thereafter. The Board of Medicine and Department of Health and Humans Services state this bill may increase state expenditures by a de minimus amount in FY 2017 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.
METHODOLOGY:
The Office of Legislative Budget Assistant states this bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the Judicial Branch, Department of Corrections, and New Hampshire Association of Counties have provided the Office with potential costs associated with the penalties contained in this bill. See table below for average cost information:
| FY 2017 | FY 2018 |
Judicial Branch |
|
|
Routine Criminal Felony Case- Class B felony | $449 | $470 |
Complex Civil Case – Damage actions | $724 | $756 |
Appeals above cases and administrative actions | Varies | Varies |
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. | ||
Department of Corrections |
|
|
FY 2015 Average Cost of Incarcerating an Individual | $34,336 | $34,336 |
FY 2015 Average Cost of Supervising an Individual on Parole/Probation | $520 | $520 |
NH Association of Counties |
|
|
County Prosecution Costs | Indeterminable | Indeterminable |
Estimated Average Daily Cost of Incarcerating an Individual | $85 to $110 | $85 to $110 |
Many offenses are prosecuted by local and county prosecutors. In those instances where the Department of Justice has prosecutorial responsibility or is involved with appeals for a conviction related to the offense contained in this bill, the Department would absorb the cost within its existing budget. If the bill results in the Department needing to prosecute significantly more cases or be involved in significantly more appeals, then there may be an indeterminable increase in costs to the Department. The Department provides legal counsel to the Board of Medicine and assumes it could provide the necessary counsel regarding the Board’s review process within the current budget and there would be no additional cost to the Department of Justice.
The Board of Medicine states it would be expected to adjudicate hearings within 30 days of a request to make a finding on the medical necessity of any abortion performed after 20 weeks gestation. The Board expects it may need to hold expedited hearings to meet this time frame and would incur expenses for board member’s mileage and per diem payments. The Board expects such hearings would be complex, with multiple exhibits and witnesses, and could take several days. In addition, the Board assumes members may be subpoenaed as witnesses in court proceedings resulting in additional per diem and mileage payments.
The Department of Health and Human Services states if a facility licensed under RSA 151 were subject to an immediate license revocation, there could be additional costs associated with the process of revoking the license, prosecuting the case and for hearing if the facility were to challenge the revocation. The Department assumes there could also be an impact on expenditures if a facility was required to reimburse the state for current funding and lose future state funding for 5 years. The Department notes that most abortions are performed in facilities exempt from licensure under RSA 151 so the fiscal impact, if any, would be small.
The Judicial Council assumes since this bill regulates the conduct of licensed medical professionals acting within the scope of their professional responsibilities. The Council assumes anyone charged with an offense under the proposed statute would be defended or indemnified by the medical provider’s insurance and the Council would not be obliged to provide representation to the accused or incur any additional costs.