Notes on NH House debates: dismemberment-abortion ban, born-alive infants protection

The vote by the 400-member New Hampshire House rejecting a ban on dismemberment abortion (also known as dilation and evacuation, or D&E) was 163-136 on a motion of inexpedient to legislate. A few minutes after that vote, a bill to protect children who survive attempted abortion went down 167-116 (another ITL motion).  About those numbers:

• The votes came after 5 p.m., at the end of a long legislative day. No telling how many representatives had left for the day and how many simply bailed out on these particular bills.
• On HB 1560, about two dozen representatives had excused absences.  Seventy-two other representatives were listed as “not voting.” As for HB 1627, the numbers were even worse: 88 “not voting.” (Full roll calls here and here.) If that many representatives have to leave by that time for work or family responsibilities, why does the House take up bills at that hour?
• The Democratic party’s leadership team was united in opposing both bills. The only exception: deputy minority floor leader Andrew White, who missed both votes. On the Republican side, deputy majority whip Claire Rouillard of Goffstown and Terry Wolf of Bedford voted to kill both bills. Majority leader Dick Hinch and majority whip Kathleen Hoelzel opposed the born-alive bill.
• The House Judiciary Committee voted 9-7 ITL on both bills, or roughly 56%-44%. That came very close to reflecting the split among those present and voting in the full House on the dismemberment ban: 54.5%-45.5%.

The floor debate

On HB 1560: “shouldn’t we have compassion?…If you did this to a puppy, you could go to jail. But if you do it to an unborn human, you get a pass.”

Several representatives spoke in defense of the bill and against the ITL motion.

• Rep. Kathy Souza (R-Manchester), arguing in favor of the bill and against the ITL motion: “[Dismemberment abortion]consists of a long tool…with a grooved end being inserted by the abortionist into the woman’s uterus. Randomly, a leg, an arm, is grasped with this tool. It is twisted and torn off. The child is alive….The baby bleeds to death with undescribable pain…. This is brutality….And as one who worked to try to abolish the death penalty, I’m aware of some of the strong arguments, to wit, lethal injection is not always as painless and quick as some have said it is. Oftentimes it takes awhile, and suffering takes place. If we are pushing compassion for those who have committed the most heinous crimes in our society, shouldn’t we [have] some compassion for a living unborn child being literally torn apart?”
• Rep. Dan Itse (R-Fremont): “If you did this to a puppy, you could go to jail. But if you do it to an unborn human, you get a pass….
  [The bill] is challenged on the grounds that two state courts [Oklahoma and Kansas] have already enjoined similar laws on constitutional grounds.  But you know, this is really to be expected. It’s what happens with abortion laws in the United States. if the last fifty years have taught us anything, it is that the constitutional status of laws changes with great frequency and sometimes radically. When the Supreme Court upheld the federal [partial-birth] abortion ban,…[t]he court held that protecting unborn children from the brutal inhumanity of partial-birth abortion does not impose an undue burden on abortion because other methods can be used. In fact, the same logic can be applied to D&E.”
• Rep. Kurt Wuelper (R-Strafford): “We passed a partial-birth abortion ban in this state[…] because of the sheer brutality of it. The D&E is the same level of brutality.” To objections made by opponents about some of the language in the bill: “There is in your seat pockets a floor amendment which would correct that and change the language [to meet] the objection. When we vote to overturn this ITL, we’ll introduce that amendment and this objection will quickly go away.” [Editor’s note: the inexpedient-to-legislate motion passed, and Rep. Wuelper’s amendment therefore never came up.] …”The [opponents of the] bill claim it’s a problem to criminalize health care providers…and [impose] criminal penalties. Well, we’re saying it’s a crime to perform this procedure [dismemberment abortion]. This is what legislatures do. They define crimes. And when we define a crime, we typically assign a penalty, otherwise a crime would be moot.”
• Rep. Frank McCarthy (R-Conway):  “If those who slice off the head of human beings are condemned by the world as being part of an evil ungodly immoral culture, then what, pray tell, are we if we allow this [dismemberment abortion] to take place within our midst on a daily basis? Morality counts.”

Rep. Linda Kenison (D-Concord) urged her colleagues to accept the committee’s report and kill the bill. She refused to use the term “dismemberment,” preferring “D&E,” which she called “the most medically sound and safe procedure for a second-trimester pre-viability abortion….That’s the key. The fetus is not viable.” She also pooh-poohed concerns over fetal pain, saying that the Judiciary Committee had heard medical testimony that fetal brains are insufficiently developed in the second trimester to feel pain. (A review by the Charlotte Lozier Institute of medical literature on fetal pain, summarized here, contradicts Rep. Kenison.) 

“If this bill is enacted, the state of New Hampshire will undoubtedly face costly and unnecessary litigation.” Rep. Kenison, as the last person to speak before the question was called, escaped inquiry into how she could express such a concern after she voted last year against repeal of the buffer zone law – which has embroiled the state in costly and unnecessary litigation.

On HB 1627:  “These children are under the knife of abortion, but somehow, they manage to survive. The question before us: should that baby who has so far exceeded expectations to come out alive, should that baby be protected?”

HB 1627 may or may not have been poorly-drafted. What’s not in dispute is that no one objecting to the language offered any floor amendment. No one who objected to the bill said the idea of protecting born-alive babies was good but the vehicle needed work. It was almost 6 p.m., after all.

Reps. Wuelper and Warren Groen (R-Rochester) did their best to overcome a hostile committee report. Both spoke in defense of the defenseless. “The majority claims we don’t need this bill because we have existing law. The fact of the matter is those existing laws have not protected children who were born accidentally from abortion procedures,” said Wuelper. “These children are under the knife of abortion. They are destined to die at the hands of their, quote, medical provider, end quote, but somehow, they manage to survive. They manage to come out alive. The question before us: should that baby who has so far exceeded expectations to come out alive, should that baby be protected?”  

Groen co-sponsored the bill along with Reps. Victoria Sullivan (R-Manchester) and David Murotake (R-Nashua). He tried to allay concerns that the bill called for inappropriate care for abortion survivors.”No extraordinary measures needed: that’s what this bill calls for.” Don’t starve the baby, give reasonable care.

But nothing’s that simple when it comes to drafting legislation, particularly when the legislation seeks to give a little respect to a baby who didn’t get the memo about being aborted.

Two messages that were not uttered aloud by HB 1627’s opponents came across loud and clear nevertheless as the born-alive infant protection bill was killed: The question of whether a woman seeking abortion is entitled to a terminated pregnancy or a dead baby has been settled, and the dead-baby caucus has settled it; and there’s no conflict of interest when an abortion provider is the one determining if a born-alive child is really born alive.

Rep. Paul Berch (D-Westmoreland) handled the floor speech on behalf of the ITL recommendation. “This bill seeks to address a problem that appears not to exist in New Hampshire” – and since the the state collects no abortion data including incidence of live births following induced abortion, it’s easy to say a problem “appears not to exist.” 

“I think what may have been persuasive to a majority of the Judiciary Committee, bipartisan, Republican and Democrat, is that ideology and beliefs aside, this is a poorly-drafted unworkable bill which would create of risk of making felons of doctors and nurses…. This bill would require doctors to employ extraordinary resuscitation measures for pre-viable fetuses that are born as a result of preterm or early labor or termination, even when there is no chance of viability or survival. ” Preterm or early labor? Irrelevant to the bill, but useful as a way of filing the rough edges off the word “termination” standing alone. Note Rep. Berch’s term “pre-viable fetuses that are born.” A human fetus that has been born is an infant. 

The “extraordinary resuscitation measures” of which Rep. Berch speaks? Here are the measures called for in the bill: “A person shall not deny or deprive an infant of nourishment with the intent to cause or allow the death of the infant for any reason…A person shall not deprive an infant of medically appropriate and reasonable medical care and treatment or surgical care.” Vague terms, warned Rep. Berch – so vague that what they mean is “extraordinary resuscitation.”

More concern from Rep. Berch about language: “The mandatory obligations on doctors arise whenever there is, quote, ‘any sign of life,’ although the proposed law does not define that term. And according to testimony, neonatal doctors disagree on what that term means.”

“I have tried to show that this bill even if it were a good idea is simply not ready for prime time. But it is not a good idea.” The “idea,” of course, was to treat abortion survivors as humans, not as medical waste.

“[The bill] criminalizes the practice of safe and compassionate medicine by ignoring concepts of fetal gestation, and the issue of viability. And for the mother, it adds severe stress and uncertainty at an already difficult time, which can have long-term negative impacts.” I wonder if he meant to use the word mother, apt as it is.  In a bit of a non sequitur, Rep. Berch went on to say that in New Hampshire, “We have highly experienced and talented neonatal specialists.” He did not explain how a neonatal specialist might be on hand for an induced termination of pregnancy.  “We are talking about medically complex and difficult pregnancies.” Not necessarily, and in  any case the complexity and difficulty of a pregnancy have no relevance to whether the child is live-born after an attempt to induce abortion.

When Rep. Berch was done and the question had been called, Merrimack’s Rep. Jeanine Notter made one quick attempt to cut through the weeds with her parliamentary inquiry (a device to make one last pitch for a bill): “If I believe this is a tiny baby worthy of protection, would I now press the red button [to vote against the ITL motion]?”

The inexpedient-to-legislate motion passed, with well over a hundred elected representatives missing by the time the vote was cast.