HB 1220

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Certain Abortions Prohibited. Amend RSA 329 by inserting after section 31 the following new section:

(a) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

(b) "Physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state, or any individual legally authorized by the state to perform abortions; provided, however, that any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.

(c) "Vaginally delivers a living fetus" means deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure that the physician knows will kill the fetus, and kills the fetus.

II.(a) Any physician who knowingly performs a partial-birth abortion and thereby kills a human fetus or infant shall be guilty of a class B felony. Notwithstanding the provisions of RSA 651:2, a person found guilty under this paragraph may be fined up to $100,000 or be imprisoned for not more than 2 years, or both.

(b) A woman upon whom a partial-birth abortion is performed shall not be prosecuted under this section.

III.(a) The woman upon whom the partial-birth abortion was performed in violation of this section, the father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may, in a civil action, obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.

(1) Money damages for all injuries, psychological and physical, occasioned by the violation of this section; and

IV.(a) A defendant accused of an offense under this section may seek a hearing before the board of medicine to determine whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, illness, or injury.

(b) The findings on such issue are admissible at the trial of the defendant. Upon motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.

V. A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section for conspiracy to violate this section.

The Department of Corrections, Judicial Branch, and Judicial Council stated this bill will result in an indeterminable increase in state expenditures in FY 2005 and each year thereafter. The Board of Medicine stated this bill will increase state expenditures by $1,385 per year in FY 2005 and then every other year thereafter. There will be no fiscal impact on state, county and local revenue or county and local expenditures.

The Department of Corrections indicated the cost to incarcerate a prisoner was $24,866 in FY 2002, but the Department is not able to determine the number of individuals who may be incarcerated under this bill.

The Judicial Branch stated this bill provides for criminal penalties at the felony level for performing a partial birth abortion and civil remedies against an abortion provider who is in violation of the law. The Branch cannot estimate the number of cases, but stated the cost of a single case would exceed $10,000 with a potential for higher costs if appealed to the Supreme Court. Additional security costs may be incurred due to the subject matter of the trial and possible publicity.

The Judicial Council indicated this bill provides that a physician who knowingly performs a partial birth abortion shall be guilty of a class B felony. The Council assumes these cases could be high profile and litigated more significantly than usual. The Council assumed that if the person charged is eligible for indigent defense representation, either a public defender, contract attorney, or assigned counsel would be paid with state funds. A public defender or contract attorney would be paid $687.50 per felony. Assigned counsel is paid at a rate of $60 per hour with a $3,000 cap. In addition, the fee cap may be waived and "services other than counsel" may be approved. The Judicial Council can not estimate the number of felony cases that will result from this bill.

The Board of Medicine assumed this bill would result in one additional disciplinary hearing per biennium. The cost for such a hearing includes per diem pay and travel for board members, a court reporter for ½ day and the salary of the staff person who provides support to the Board.

The Department of Health and Human Services stated this bill will not result in any additional duties or direct or indirect costs to the Department.

The Department of Justice indicated the Department seldom becomes involved in prosecutions relating to abortions and assumed this will not change, therefor, there will be no fiscal impact on the Department.