Revision: Nov. 16, 2017, 12:33 p.m.
HB 1721-FN - AS INTRODUCED
2018 SESSION
18-2515
01/04
HOUSE BILL 1721-FN
AN ACT relative to coercive abortions.
SPONSORS: Rep. Wuelper, Straf. 3; Rep. M. Pearson, Rock. 34; Rep. Nelson, Carr. 5; Rep. Itse, Rock. 10; Rep. Notter, Hills. 21; Rep. Baldasaro, Rock. 5; Rep. Brown, Graf. 16; Rep. Seidel, Hills. 28
COMMITTEE: Judiciary
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ANALYSIS
This bill establishes the protection from coercive abortion act to protect women from coercive 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2515
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to coercive abortions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Findings. The general court finds that:
I. Abortion is one of many options used by physicians to treat a crisis pregnancy. Other tools, such as a referral for financial aid, legal counseling, or marital counseling, may sometimes better serve a woman's needs by helping to alleviate a crisis situation and allow her to carry a wanted pregnancy to term.
II. Some women seek abortions in great haste and under emotional stress. Many state that they made poor decisions because they did not adequately think through alternative ways of coping with their crisis situations.
III. Some abortion providers encourage clients to make a decision quickly and without adequate counseling to alleviate stress which may result in an ill-considered decision which will later be regretted.
IV. Numerous researchers have found that women who choose abortion in violation of their consciences are significantly more prone to suffer severe psychological distress following an abortion.
V. There are many cases in which women who would prefer to keep their pregnancies feel forced by others to undergo unwanted abortions which they subsequently regret. When a woman is being pressured into an unwanted abortion, the physician is her last hope for an ally against her oppressors.
VI. Over 80 percent of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion before or after the procedure. Women do not return to the facility for post-surgical care. In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure with little opportunity to receive counseling concerning her decision.
VII. There are well established predisposing risk factors in the medical and psychiatric literature which are predictive of a greater likelihood of regrets or other adverse emotional reactions to abortion. These risk factors include feelings of being pressured to have the abortion.
VIII. It is essential that women who are at a higher risk of suffering severe psychological distress following an abortion shall be screened and counseled appropriately if any pre-identifying risk factors are present.
IX. "The medical, emotional, and psychological consequences of abortion are serious and can be lasting, and this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician." H.L. v Matheson, 450 U.S. 398, 411 (1980).
X. Some complications reportedly associated with abortion may become clearly evident only several years, or even decades, after the abortion.
2 New Chapter; Protection From Coercive Abortion Act. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
PROTECTION FROM COERCIVE ABORTION ACT
132-B:1 Purpose. The purpose of this chapter is to:
I. Ensure that no woman's consent to a recommendation to abort is the result of coercion or is in conflict with her own personal beliefs or desires to give birth to her unborn child.
II. Protect women from feeling pressured into unwanted abortions.
III. Protect women from individuals or circumstances that would pressure them into a violation of their conscience.
132-B:2 Short Title. This chapter may be cited as the protection from coercive abortion act.
132-B:3 Definitions. In this chapter:
I. "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 fetus.
II. "Abortion practitioner" means the licensed physician who induces an abortion.
III. "Abortion providers" means and includes the physician performing the abortion, and any individuals or corporations acting as agents of the physician who have contact with the patient and provide counseling, screening, referrals, or directly assist with the abortion procedure itself, and any corporation or owner or partner of a business or corporation that employs or contracts with the physician to perform abortions, and any physician, referral service, business, agency, or corporation that makes referrals to abortion providers.
IV. "Medical emergency" means that condition which, on the basis of the physician's best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a 24-hour delay will create grave peril of immediate and irreversible loss of major bodily function.
V. "Qualified person" means a licensed physician or an agent of the abortion practitioner who is a licensed psychologist, licensed social worker, licensed professional counselor, licensed APRN, licensed physician assistant, or licensed registered nurse.
VI. "Reasonable patient" means a patient who is capable of thoughtfully considering and weighing both technical and summary information to determine its relevancy to that patient's choices in order to arrive at a free and informed choice either to follow or reject a medical recommendation.
VII. "Vulnerable person" means any person who is submitting to an unwanted abortion due to pressure from others.
132-B:4 Screening Requirements.
I. Except in the case of a medical emergency, no abortion shall be performed or induced without prior screening of the patient for evidence of coercion of a vulnerable person. Except in the case of a medical emergency, consent to abortion is free from unnecessary exposure to risks and coercion only if the following are true:
(a) Prior to the abortion practitioner's recommendation for an abortion, a qualified person has privately evaluated the woman to determine if she is a vulnerable person, and in particular if she is seeking an abortion under pressure to do so from other persons.
(b) Evaluation of the woman to identify if she may be a vulnerable person shall include investigation of her views about abortion and any possible emotional attachment which she may have developed with her unborn child. If she describes a negative view toward abortion, or an emotional attachment to her unborn child, or otherwise indicates that the abortion is unwanted, is her "only choice," or is being sought to satisfy some other person's desires which are contrary to her own, the presumption shall exist that she is a vulnerable person.
II.(a) The evaluation of the woman shall be done individually, in a private room in the absence of third parties, such as parents, spouse, or others, to protect her privacy and increase her opportunity to express herself freely.
(b) If a woman is identified as a vulnerable person, she must be informed of this evaluation and continue to receive non-directive counseling by a qualified person, or be referred to other sources of assistance or counseling that may be deemed appropriate by the qualified person, until she is able to make a fully free decision, either to have an abortion or to carry the pregnancy to term with respect to her own views, needs, and desires.
(c) If upon evaluation the qualified person concludes that the woman seeking an abortion may be a vulnerable person seeking abortion against her own self interests because of pressure or coercion from a third party, the qualified person shall assist her in finding resources to mitigate the pressure or protect her from the coercion. This assistance may include with the consent of the woman, and shall include at the request of the woman, disclosure of information to the pressuring parties as to the negative impact a coerced abortion may have on a vulnerable person and referrals for interventive aid in the form of family counseling, marital counseling, legal aid, or other appropriate measures.
(d) If, after having received additional counseling and interventive assistance on her behalf, the patient identified as a vulnerable person persists in her request for an induced abortion, and if the qualified person has made the reasonable judgment that the patient has freely and voluntarily decided to continue her request for an abortion in accordance with her own autonomous views, needs, and desires, the qualified person shall provide a written statement to the abortion practitioner certifying, to the best of that qualified person's knowledge, that the patient's request for an abortion is freely and voluntarily made and is consistent with the patient's own autonomous views, needs, and desires. No abortion shall be performed upon a person previously identified as a vulnerable person in the absence of this certification by a qualified person that the patient's request for an abortion is freely made and is consistent with the patient's own autonomous views, needs, and desires.
III. Whenever the patient seeking abortion is under 18 years of age, a qualified person shall interview the woman to determine if her pregnancy is the result of a criminal act, including acts of incest, rape, or statutory rape. If the qualified person determines that a criminal act was or is likely to have occurred, written notice will be given to the abortion practitioner, the proper law enforcement officials, and the child protection authorities.
132-B:5 Criminal Penalties. Except in the case of a medical emergency, no physician shall knowingly perform an abortion on a woman who has not consented to the abortion, who has revoked her consent, or who has consented under the coercion or duress of another person. Such person shall be guilty of a class B felony.
132-B:6 Civil Remedies.
I. In addition to whatever remedies are available under the common or statutory law of this state, the failure to comply with the requirements of this chapter shall provide a basis for a civil action for malpractice, negligence, fraud, extortion, battery, and a violation of the individual's civil rights. Any intentional violation of this chapter shall be admissible in a civil suit as prima facie evidence of a failure to obtain a voluntary consent.
II. Any action for civil remedies based on a failure to comply with the requirements of this chapter shall be brought within 4 years after the date at which the woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complication, including shame, which may impede the patient's ability adequately to pursue a civil remedy.
III. Notwithstanding the provisions of paragraph II, in the case of a woman who has died, any action under this chapter shall be brought within 4 years of her death.
IV. No abortion provider shall be held liable for any claim of injury based on the premise that too much information was provided to the patient, provided such information was accurate or reasonably assumed to be accurate.
V. In a civil action under this chapter:
(a) The jury may request a copy of this chapter, or shall be presented with a copy of this chapter upon the demand of counsel for either party.
(b) In determining liability, the absence of voluntary and fully informed consent shall create the presumption that the plaintiff would not have undertaken the recommended abortion. This burden can be overcome by a preponderance of evidence showing that the woman would have acceded to the recommendation even if the information had been disclosed.
(c) In allowing the testimony of expert witnesses, the technical-medical aspect of induced abortion shall be a separate issue from the screening, counseling, disclosure, and recommendation process. With regard to proper procedures for screening, counseling, and the recommendation of alternative forms of crisis resolution, the testimony of physicians or persons who care for women in crisis pregnancies shall be allowed as expert testimony.
(d) Any abortion provider that makes referrals to an abortion practitioner whose practice is inside or outside this state shall be fully responsible for ensuring that all provisions of this chapter are satisfied. In the absence of adequate screening and voluntary consent, the referring abortion provider shall be liable for all injuries sustained.
132-B:7 Medical Emergency. If a medical emergency compels the performance of an abortion, the abortion practitioner shall inform the woman, before the abortion if possible, of the medical indications supporting his or her judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of a major bodily function. In such an event, the requirements of this chapter shall not apply.
132-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 applications 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.
132-B:9 Applicability. Nothing in this chapter shall be construed as creating or recognizing a right to abortion. It is not the intent of this chapter to make lawful an abortion that is currently unlawful.
132-B:10 Right of Intervention. The general court, by joint resolution, may appoint one of its members who sponsored the legislation which enacted 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.
3 Effective Date. This act shall take effect January 1, 2019.
18-2515
11/15/17
HB 1721-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to coercive abortions.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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METHODOLOGY:
This bill contains a penalty 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 entities impacted have provided the potential costs associated with these penalties below.
Judicial Branch | FY 2019 | FY 2020 |
Routine Criminal Felony Case | $457 | $462 |
Complex Civil Case | $737 | $745 |
Appeals | Varies | Varies |
It should be noted that average case cost estimates for FY 2019 and FY 2020 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 |
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FY 2017 Average Cost of Incarcerating an Individual | $36,960 | $36,960 |
FY 2017 Annual Marginal Cost of a General Population Inmate | $4,555 | $4,555 |
FY 2017 Average Cost of Supervising an Individual on Parole/Probation | $557 | $557 |
Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department would likely absorb the cost within its existing budget. If the Department needs to prosecute significantly more cases or handle more appeals, then costs may increase by an indeterminable amount.
The Department of Health and Human Services indicates this bill would have no fiscal impact on the Department.
The Judicial Council does not anticipate this bill will have a fiscal impact on its costs.
The New Hampshire Association of Counties determined this bill would have no impact on county revenues or expenditures.
AGENCIES CONTACTED:
Judicial Branch, Departments of Corrections, Justice, and Health and Human Services, Judicial Council and New Hampshire Association of Counties