Becoming unviable: NH House committee decides Roe didn’t go far enough

Abortion’s legal in New Hampshire throughout pregnancy – early-term, late-term, any-term. Representative Keith Murphy and six co-sponsors have introduced HB 595, a bill to restrict abortion after 21 weeks + 5 days. The bills statement of findings is brief: “Children have been born as early as 21 weeks and 5 days gestation and lived healthy, fulfilling lives; it is the purpose of the state of New Hampshire to assert a compelling state interest in protecting the lives of viable unborn children.” The sponsors might have added that maternal mortality increases with gestational age.

I say God bless the sponsors. They knew they were venturing into tough territory. They sallied forth anyway.

The Judiciary Committee hearing turned up objections: the bill’s “unconstitutional” and could result in litigation against the state (where were those voices when the buffer zone law was being debated?); it’s medically debatable; and it’s tricky to pin down that 21-weeks-5-days point.

Fear not; the Concord legislative sausage-making machine is in good working order. The committee majority proposed an amendment to the bill: the “Viable Fetus Protection Act,” supposedly intended to restrict post-viability abortions without specifying a time in pregnancy.The crowning achievement of their amendment is this: “viability” means “the state of fetal development when the life of the fetus may be continued indefinitely outside the womb naturally” – but then, “the determination of viability and the decision to terminate a pregnancy shall be solely that of the pregnant woman in consultation with her physician.”

Wow. Even Justice Blackmun didn’t go there. In fact, in Roe v. Wade, the Blackmun majority agreed to define viability as “potentially able to live outside the mother’s womb, albeit with artificial aid.” None of this artificial-aid stuff for the majority of the New Hampshire House Judiciary Committee. The viability bill is looking extremely unviable.

The committee amendment defines viability so that some kids with disabilities could never meet the standard, and then it says the mother is the one who decides what viability is anyway. The “consultation with her physician” is a droll, meaningless and unenforceable idea. For good measure, the bill includes an exception “to remove a fetus with severe anomalies incompatible with life.” That refers to disabled preborn children who haven’t died on their own earlier in pregnancy. Sometimes these things need to be helped along, I guess.

That amendment attracted twelve votes in committee. There were seven votes for killing the bill altogether. Will the floor debate bring a proposal to restore the original language? Whatever the flaws in the bill as introduced, at least it didn’t define viability and then throw out the definition three lines later. [Note: on March 12, the House tabled the bill.]

Whatever its fate, HB 595 will not be the last word on late-term abortion in New Hampshire. A conversation’s been started, and no one can shut it down.