Revision: Jan. 13, 2021, 4:07 p.m.
HB 596-FN - AS INTRODUCED
2021 SESSION
21-0146
06/05
HOUSE BILL 596-FN
SPONSORS: Rep. Plett, Hills. 6
COMMITTEE: Judiciary
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ANALYSIS
This bill prohibits the state from funding certain abortions. This bill also establishes the New Hampshire foster care and adoption initiative fund.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
21-0146
06/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Abortion, Adoption, And Foster Care Funding. Amend RSA by inserting after chapter 132-A the following new chapter:
CHAPTER 132-B
ABORTION, ADOPTION, AND FOSTER CARE FUNDING
132-B:1 Short Title. This chapter shall be known and cited as the “Life Appropriation Act.”
132-B:2 Definitions. In this chapter:
I. "Abortion referral" means the act of recommending a pregnant woman to a doctor, clinic, or other person or entity for the purpose of obtaining or learning about obtaining a convenience abortion.
II. "Affiliate" means an individual or entity that, directly or indirectly, owns, controls, is controlled by, or is under the common control of another person or entity, in whole or in part, or a subsidiary, parent, or sibling.
III. "Breast and Cervical Cancer Mortality Prevention Act" means the "Breast and Cervical Cancer Mortality Prevention Act of 1990" 104 Stat. 409 (1990) 42 U.S.C. 300k, as amended.
IV. "Conception" means fertilization.
V. "Convenience Abortion" means an elective or non-therapeutic abortion that uses an instrument, medicine, drug, device, or another substance 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. An act is not a convenience abortion if the act is performed with the intent to:
(a) Save the life of the mother or resolve a medical emergency.
(b) Save the life or preserve the health of the unborn child.
(c) Remove a dead unborn child caused by spontaneous abortion.
(d) Remove an ectopic pregnancy.
(e) Abort and remove an unborn child that is the result of rape or incest reported to a law enforcement agency.
(f) Abort and remove an unborn child because of a fetal malformation that is incompatible with the baby being born alive.
VI. “Emotional appeal” is a method of persuasion through sentiment, not logic, that is designed to create an emotional response.
VII. "Facility" means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center or other institution or location where medical care is provided to any person.
VIII. "Fund” means the New Hampshire foster care and adoption initiative fund.
IX. "Infertility prevention project" means the infertility prevention project operated by the United States Centers for Disease Control and Prevention.
X. “Lemon test” means:
(a) A three-prong test that was originally created by the United States Supreme Court and now adopted by this state to determine if government action is unconstitutional under the Establishment Clause. The test requires that state action or government policy:
(1) Have a valid secular purpose.
(2) Not have the effect of advancing, endorsing, or inhibiting religion.
(3) Not foster excessive entanglement with religion.
(b) Government action violates the Establishment Clause if it fails to satisfy any of the prongs.
XI. “Logical nexus” means some relevant connection.
XII. "Medical emergency" means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
XIII. "Minority HIV/AIDS initiative" means the minority HIV/AIDS initiative operated by the Office of Minority Health in the United States Department of Health and Human Services.
XIV. “Non-government group” means a nonprofit organization exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code or any other individual or group that is working to:
(a) Advance:
(1) Birth.
(2) The interests, knowledge, safety, health, and welfare of expectant mothers.
(3) The facilitation of quality, safe, and healthy adoption and the cultivation of strong nurturing families.
(4) The quality, strength, safeness, and effectiveness of the foster care system.
(b) Provide:
(1) Ultrasound testing.
(2) The employment opportunities of single mothers who are expecting.
(3) Counseling and therapy for expectant or new mothers.
(4) Community for expectant or new mothers.
XV. “Non-secular sham” means a policy, a course, or principle of action adopted or proposed by a state actor which endorses, respects, or favors the beliefs of a particular religion where the pre-eminent and primary force driving the state’s action is not genuine, but is a sham that ultimately has a primary religious objective. The term refers to a type of policy that is predicated on a series of unproven faith-based assumptions and naked assertions that are implicitly religious.
XVI. "Personal responsibility education program" means the program administered by the administration for children and families in the United States Department of Health and Human Services to educate adolescents on abstinence and contraception for the prevention of pregnancy and sexually transmitted infections.
XVII. "Physician" means a person licensed to practice medicine and surgery in this state.
XVIII. "Pregnancy" means the female reproductive condition of having an unborn child in the woman's uterus.
XIX. "Promote" means to advocate for, assist with, encourage, or popularize through advertising or publicity.
XX. "Public funds" means any funds received or controlled by this state or any agency or political subdivision thereof, including, but not limited to, funds derived from federal, state or local taxes, gifts or grants from any source, public or private, federal grants or payments, or intergovernmental transfers.
XXI. “Reasonable observer” means a person of ordinary prudence who views a policy from an objective standpoint in the context of the state's longstanding practice through the lens of self-evident neutral, natural, and non-controversial transcultural morality and who has not been desensitized by so-called evolving standards of decency that are predicated on a current cultural mindset that seeks to normalize practices that were otherwise considered to be self-evidently immoral, obscene, injurious, unnatural, or subversive to human flourishing.
XXII. “Religion” means a set of unproven answers to the greater questions that are predicated on an institutionalized or non-institutionalized faith-based world view flowing out of a community that is organized, full, and has a code by which members may guide their daily lives.
XXIII. “Secular humanism” means a faith-based world view that is also referred to as postmodern western individualistic moral relativism, expressive individualism, or leftism. A belief system that is protected by the Free Exercise Clause of the First Amendment of the United States Constitution and article 6 of the New Hampshire constitution and centered on the unproven assumption that there are no moral absolutes and that one moral doctrine should be used as the superior basis for law and policy. The term includes a series of unproven faith-based assumptions and naked assertions that suggest that morality and truth are man-made conventions and that at the heart of liberty is man’s ability to define his own meaning of the universe. The term refers to a religion that does not fulfill any compelling state interest but instead tends to erode community standards of decency and promote licentiousness. The term refers to the unproven belief that convenience abortions are moral or plausible. The term includes sexual orientation orthodoxy and non-secular self-asserted sex-based identity narratives. The term refers to the belief that man is merely a bundle of chemicals, animated pieces of meat, or accidental particles and that nature is all there is. The term refers to the unproven faith-based assumption or Nietzschean theory that man evolved from monkeys and should, therefore, love one another just because.
XXIV. “Secular policy” means a course or principle of action adopted or proposed by a state actor that is natural, neutral, and non-controversial that is based on self-evident morality and objective truth from the reasonable observer perspective. The term includes government procedure or state action that generally accomplishes its goals and does not tend to put religion over non-religion or one religion over another or does not convey to a reasonable observer that the state favors one religion. The term includes a course of government action where the pre-eminent and primary force driving the policy is genuine, not a sham, and not merely secondary to a religious objective.
XXV. “Secular abortion” means the act of using or prescribing an instrument, medicine, drug, device, or another substance 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, when carried out to:
(a) Save the life of the mother or resolve a medical emergency.
(b) Save the life or preserve the health of the unborn child.
(c) Remove a dead unborn child caused by spontaneous abortion.
(d) Remove an ectopic pregnancy.
(e) Abort and remove an unborn child that is the result of rape or incest reported to a law enforcement agency.
(f) Abort and remove an unborn child because of a fetal malformation that is incompatible with the baby being born alive.
XXVI. “Taxpayer standing” means standing of a taxpayer to file a lawsuit against the government actor that is directly or symbolically engaging in practices that violate the Establishment Clause of the First Amendment after it actually or prospectively engaged in action that potentially failed at least one prong of the Lemon test or coercion test. The term includes a test that requires a minimal logical nexus in order to be invoked by a taxpayer when the government is directly or symbolically endorsing a religion in a coercive manner in violation of the Lemon test.
XXVII. "Unborn child" means the offspring of human beings from fertilization until birth.
XXVIII. "Violence Against Women Act" means sections of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322.
132-B:3 Prohibition of Appropriations of Public Funds to Convenience Abortion Providers.
I. No agency or instrumentality of the state may appropriate or award a grant of public funds to pay the direct or indirect costs of performing, inducing, referring, or counseling in favor of convenience abortions, because such state action fails the Lemon test and violates the First Amendment Establishment Clause of the United States Constitution and article 6 of the New Hampshire constitution for:
(a) Constituting a non-secular sham.
(b) Cultivating indefensible legal weapons against non-observers of the religion of Secular Humanism.
(c) Having the effect of excessively entangling the government with the religion of Secular Humanism.
II. Pursuant to the First Amendment Establishment Clause of the United States Constitution, article 6 of the New Hampshire constitution and the state’s compelling interest to discourage licentiousness, no agency or instrumentality of the state shall grant, appropriate, or distribute a grant of public funds to an individual or entity that:
(a) Performs convenience abortions, induces convenience abortions, provides convenience abortion referrals, or counsels in favor of convenience abortions; and
(b) Is an affiliate of a person or entity that performs abortions, induces abortions, provides abortion referrals, or counsels in favor of convenience abortions because such appropriations have the effect of endorsing non-secular practices that excessively entangles the government with the religion of Secular Humanism.
III. Pursuant to the First Amendment Establishment Clause of the United States Constitution, article 6 of the New Hampshire constitution, and the state’s compelling interest to uphold community standards of decency, no agency or instrumentality of the state shall appropriate or award a grant of public funds to pay the direct or indirect costs of performing, inducing, referring, or counseling in favor of convenience abortions including, without limitation:
(a) Administrative costs and expenses.
(b) Overhead costs.
(c) Employee salaries.
(d) Rent and mortgage payments.
(e) Telephone and other utility payments.
IV. Pursuant to the First Amendment Establishment Clause of the United States Constitution, article 6 of the New Hampshire constitution, and the state’s compelling interest to discourage licentiousness, the department of health and human services and all other state agencies shall ensure that no public funds received through the Violence Against Women Act, the Breast and Cervical Cancer Mortality Prevention Act, the infertility prevention project, the HIV/AIDS initiative, the Infant Mortality Reduction Initiative, or any other similar federal program shall be used to:
(a) Perform convenience abortions.
(b) Promote convenience abortions.
(c) Contract with any entity that performs or promotes convenience abortions.
(d) Become or continue to be an affiliate of any entity that performs or promotes convenience abortions because such an appropriation endorses non-secular practices and has the effect of excessively entangling the government with the religion of Secular Humanism.
V. Any taxpayer of this state or its political subdivisions shall have taxpayer standing to bring suit in a court of competent jurisdiction to enforce the provisions of this section. The prevailing party may seek attorney fees, costs, and other forms of equitable relief.
VI. Any officer or employee of the state who knowingly authorizes the use of public funds prohibited by this section may be dismissed from that person's office or position and the person's employment may be immediately terminated.
132-B:4 New Hampshire Foster Care And Adoption Initiative Fund.
I. There is established the New Hampshire foster care and adoption initiatives fund. The fund shall be in the custody of the treasurer of state, but shall not be part of the state treasury.
II. The fund shall consist of:
(a) Moneys collected from any fees imposed on convenience abortion providers for cultivating secondary harmful effects or eroding community standards of decency.
(b) Any fines or monetary penalties awarded to the state against convenience abortion providers, physicians, or facilities for violating state law.
(c) Any other appropriations, gifts, grants, donations, and bequests.
III. Public funds that would have otherwise been appropriated in the past to facilities providing convenience abortions may be appropriated to the fund.
IV. All interest earned on the fund shall be credited to the fund.
V. The purpose of the fund is to provide grant funding for foster care and adoption services and initiatives for both government and non-government groups and individuals.
VI. The department of health and human services shall administer the fund and adopt rules pertaining to the fund. The department of health and human services shall allocate moneys from the fund according to the following distribution:
(a) Fifty percent of the moneys in the fund shall be used for foster care services and initiatives.
(b) Fifty percent of the moneys in the fund shall be used for adoption services and initiatives or to care for unborn children and their mothers.
VII. The department of health and human services shall evaluate activities conducted under this section each year and, on or before February 15, submit an annual report containing the evaluation to the senate clerk and the clerk of the house of representatives and notify the legislature that the report is available. The report shall include the manner in which the funds in the account were maintained and distributed.
132-B:5 Prohibition of Discrimination Based upon Moral Beliefs.
I. Pursuant to the Free Exercise Clause of the First Amendment of the United States Constitution and article 5 of the New Hampshire constitution:
(a) No hospital or any other state actor shall discriminate against or discipline a person because of the person's moral religious beliefs in favor or against convenience abortion or secular abortion ideology and practices.
(b) No private or denominational hospital shall be required to permit its facilities to be utilized for the performance of convenience abortions.
(c) No person shall be required, as a condition of training, employment, pay, promotion, or privileges, to agree to perform or participate in the performance of convenience abortions.
II. A civil action for damages or reinstatement of employment, or both, may be brought for any violation of this subsection. The prevailing party may seek attorney fees, costs, and other forms of equitable relief.
132-B:6 Hospitals and Medicaid Funding. The restrictions under RSA 132-B:3 do not apply to funding available through the state's plan for medical assistance as required by title XIX of the federal Social Security Act.
2 New Subparagraph; Application of Receipts. Amend RSA 6:12, I(b) by inserting after subparagraph (364) the following new subparagraph:
(365) Moneys deposited in the New Hampshire foster care and adoption initiative fund established in RSA 132-B:4.
3 Effective Date. This act shall take effect 60 days after its passage.
21-0146
1/13/21
HB 596-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | Indeterminable | Indeterminable | Indeterminable |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Federal funds; newly-established NH foster care and adoption initiative fund. | |||
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METHODOLOGY:
This bill prohibits any public funds from paying for an abortion not necessary to save the woman's life. In addition, the bill establishes a New Hampshire foster care and adoption initiative fund, to be funded by fees, fines, and other monetary penalties collected from abortion providers for violations of the newly created chapter. The fund would also be authorized to accept gifts, grants, donations, and bequests.
The Department of Health and Human Services states that currently, federal and state general funds are used to fund family planning centers in New Hampshire, although they are not used for terminations of pregnancy. With respect to services for termination of pregnancy, each entity supported under the NH family planning program must not provide an actual abortion as a method of family planning. The Department further notes that the State does not employ any physicians or other health care practitioners who perform termination of pregnancy services. The program does pay a percentage of medical provider’s salaries who may provide other services outside the purview of the NH Family Planning program.
Given the above limitations on the use of state and federal family planning funds, the bill's fiscal impact is unclear.
The Judicial Branch states that the bill creates a civil cause of action. While it is likely this would result in additional civil actions filed in superior court, it is not possible to calculate how many new cases would be filed under the new provision or the impact on the Judicial Branch’s resources.
AGENCIES CONTACTED:
Department of Health and Human Services and Judicial Branch