HB 622-FN - AS INTRODUCED
HOUSE BILL 622-FN
SPONSORS: Rep. Stapleton, Sull. 5; Rep. Abramson, Rock. 37; Rep. Nelson, Carr. 5; Rep. M. Pearson, Rock. 34
This bill establishes criminal penalties and disciplinary action for persons who perform abortions in this state to terminate the life of a viable fetus, except when by not doing so there is a clear and present danger to the life or health of the mother.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
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:
PROTECTING NASCENT HUMAN LIFE AS A REASONABLE AND VALID STATE INTEREST
132-B:1 Definitions. In this chapter:
I. "Abortion" means the intentional interruption of gestation termination of pregnancy and the removal or expulsion of a live embryo or fetus from the womb, but does not include a spontaneous or natural occurring fetal death, known as a miscarriage with attendant expulsion or removal.
II. "Gestation" means the development of life in the womb from conception through pregnancy, to birth, inclusive of variable in-utero, ex-utero, in vitro procedurals and technological developments to the protection and facilitation of nascent human life.
III. "Interests of the state" means, in its constitutional duty, the state has the right and obligation to foster and protect the life and well-being of all its citizens, including the nascent life within the womb as a valid component that includes promoting health and growth of population and for the raising of future citizens to sustain population growth for success and safety of its citizenry.
IV. "Life and health of the mother" means as described in the 1992 United States Supreme Court decision in Planned Parenthood v. Casey that provides exception to any prohibition of abortion to preserve the very life of the mother, or otherwise, her health in terms of preventing potential serious impairment, disability, or loss of her normal functionality. Such exception is a decision of the mother, interested and involved family members, or guardian in the case of an orphaned juvenile, and with the attendant doctor or physician.
V. "Non-viable" means, for the purpose of this chapter, when an embryo or fetus, in the judgment of the attending physician and other qualified medical personnel, would not be sustainable outside the womb of the mother for any length of time beyond a natural expiration, with or without the assistance of current or readily procurable medical technology equipment.
VI. "Physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery, licensed by the state in which such activity is performed, or any other individual legally authorized by the state to perform abortions.
VII. "Reproductive system" means pertaining to the condition and anatomical and accessorial components of male and female genital systems than enable sexual functionality for procreation.
VIII. "Undue burden" means any statute, rule, or requirement that would significantly impede a pregnant person from accessing or availing reproductive care for the purpose of abortion prior to viability of the fetus, but under the auspices of qualified medical or health professionals and under proper sanitary medical conditions.
IX. "Viability" means, pertaining to a fetus alive in the womb, its condition, extent of development, and ability to survive outside the womb either by natural and typical postpartum care and/or with artificial assistance that medical technology can provide that is either available or readily procurable at that time and place of need. (Due to the advancement of medical technology, viability in Planned Parenthood v. Casey was considered to be about 23 or 24 weeks, rather than the 28 weeks previously held in Roe v. Wade in 1973.)
132-B:2 Protecting Viable Nascent Human Life as a Reasonable and Valid State Interest.
I. No abortion shall be performed in this state to terminate the life of a viable fetus, except when by not doing so there is a clear and present a danger to the life of the mother or will otherwise cause serious and permanent impairment to her normal state of health. Her decision to terminate the life of a nonviable embryo or fetus in her womb shall be at first adequately informed, and open to the counsel of her husband, spousal partner, family, or adviser, as she may so prefer, as well as by the medical judgment of her attending physician. In the instance of a minor female seeking such an abortion, there must be the consent of a parent or guardian pursuant RSA 132:33, except as provided by waiver of notice at RSA 132:34.
II. In the event of an abortion of either a viable or non-viable embryo or fetus, it shall be the duty of the physician, hospital, and or clinic facility to report the physiological facts of the procedure, but not the personal information of the patient, which must remain confidential and completely private, to the facility where performed, the New Hampshire department of health and human services, and to the National Centers for Disease Control (CDC), to the extent that it does not violate the privacy of the patient, but may be otherwise legally sought or required under the data protocols of those entities.
I. Any person who violates the provisions of RSA 132-B:2 shall be guilty of a class B felony.
II. Any physician who performs an abortion in violation of RSA 132-B:2 shall be subject to disciplinary action under RSA 329.
132-B:4 Severability. If any provision hereof or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.
(m) Has performed an abortion in violation of RSA 132-B.
HB 622-FN- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill establishes criminal penalties and disciplinary action for persons who perform abortions in this state to terminate the life of a viable fetus, except when by not doing so there is a clear and present danger to the life or health of the mother. 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 entities impacted have provided the potential costs associated with these penalties below.
Simple Criminal Case
Routine Criminal Felony Case
It should be noted that average case cost estimates for FY 2021 and FY 2022 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.
Public Defender Program
Has contract with State to provide services.
Has contract with State to provide services.
Contract Attorney – Felony
Assigned Counsel – Felony
$60/Hour up to $4,100
$60/Hour up to $4,100
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. The majority of indigent cases (approximately 85%) are handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%).
Department of Corrections
FY 2020 Average Cost of Incarcerating an Individual
FY 2020 Annual Marginal Cost of a General Population Inmate
FY 2020 Average Cost of Supervising an Individual on Parole/Probation
NH Association of Counties
County Prosecution Costs
Estimated Average Daily Cost of Incarcerating an Individual
$105 to $120
$105 to $120
The Judicial Branch indicates the bill creates a class B felony and provides for disciplinary action before the Board of Medicine which would be subject to appeal to the Supreme Court. While it is likely this would result in additional criminal actions filed in superior court, appeals of criminal verdicts to the Supreme Court, and appeals of disciplinary action by the Board of Medicine to the Supreme Court, it is not possible to calculate how many new cases would be filed under the new provision or the impact on the Branch’s resources. In addition, the new criminal penalties require updates to the uniform charge table, notification and training of judges and staff, updating the Judicial Branch’s Odyssey database, modifying or creating new forms, and/or making any changes to the e-filing system. Those costs will be collectively determined based on all legislation that is passed into law.
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's Administrative Prosecution Unit provides legal counsel to the Board of Medicine. If a physician is found to be in violation of RSA 132-B:2 and subject to disciplinary action by the Board of Medicine, the Unit would involved in such action as well as potential appeals of Board decisions to the Supreme Court.
The Office of Professional Licensure and Certification (OPLC) indicates this bill may require OPLC staff to investigate complaints of violations and provide administrative support over disciplinary actions. The OPLC indicates the fiscal impact cannot be determined because the number of possible cases is unknown.
The Department of Health and Human Services indicates there would be no fiscal impact to the Department because the proposed legislation does not require Department action.
Judicial Branch, Departments of Corrections, Health and Human Services and Justice, Judicial Council, New Hampshire Association of Counties, and Office of Professional Licensure and Certification
|Feb. 9, 2021||House||Hearing|
: Retained in Committee
Feb. 9, 2021: Public Hearing: 02/09/2021 09:00 am Members of the public may attend using the following link: To join the webinar: https://www.zoom.us/j/96805083773 / Executive session on pending legislation may be held throughout the day (time permitting) from the time the committee is initially convened.
Jan. 6, 2021: Introduced (in recess of) 01/06/2021 and referred to Judiciary HJ 2 P. 57