Observations from this week’s hearings, part 1: post-viability restriction

{Edited to correct an error in  my notes and to respect the privacy of a member of the public. I regret the errors.]

Eugenics is back, as if it ever left, and free speech is just too dangerous to take seriously. That’s what a less optimistic soul than I might have concluded after sitting in on this week’s New Hampshire House Judiciary hearings on bills to limit post-viability abortions and to repeal the buffer zone law.

First up was the post-viability bill. I’ll address the buffer zone repeal bill in a separate post.

Rep. Keith Murphy is leading a large group of co-sponsors in trying to prevent abortions of preborn children capable of life outside the womb. With his bill, he has bent over backwards to find common ground between people who recognize the right to life from conception and people who defend abortion up until birth.

Provider, woman, child: striking a balance of interests

HB 578 says that once a woman’s preborn child reaches 21 weeks’ gestation, the physician for the abortion-minded woman must determine whether or not the child is viable. The physician, the medical professional, more than likely the abortionist, makes the determination of viability.

Think about that: the abortion provider would get to decide on viability. And still, the New Hampshire Medical Society sent a lobbyist – a retired OB/GYN – to object to the bill. Dr. Barry Smith said, “The New Hampshire Medical Society does not take a position on abortion, but we do take a position on interference with the practice of medicine.” Dr. Smith was also representing the New Hampshire section of the American College of Obstetricians and Gynecologists.

I’ve heard from Dr. Smith and the Medical Society before at hearings on life-issue bills. For a group that takes no position on abortion, it sure is consistent in its opposition to regulation of the procedure.  Dr. Smith said that HB 578 was based on “bad science that would harm New Hampshire women.”

The bill includes an exception for procedures necessary to save the life of the pregnant woman or to prevent substantial and irreversible physical impairment of a major bodily function of the pregnant woman.

Finally, the bill provides that if the viable child survives the abortion procedure, the child shall receive care.

So woman, child, and provider each get consideration in the bill.

Legal considerations: no new ground here

Rep. Murphy in his opening statement said that the bill as written is consistent with the U.S. Supreme Court’s Planned Parenthood v. Danforth decision, which was handed down in 1976. This is hardly cutting-edge legislation, except in a place like New Hampshire where abortion providers enjoy political protection.

I can see that HB 578 is also consistent with Roe v. Wade itself, in which seven black-robed sages declared that states could assert an interest in “potential” life later in pregnancy.

“If not viability, when?”

Rep. Murphy showed the committee photographs of children born prematurely, ranging from 21 weeks’ gestation to 26 weeks, and where he could find them he added photos of those same children later in their lives.

Surely, he told his colleagues, you agree these children deserved care. To abort children at the same gestational age “strikes me as brutal and inhumane.”

He pointed out that any claims that post-viability abortions don’t happen here are not supported by hard evidence, since New Hampshire has no abortion statistics reporting law. How can we know that such abortions aren’t occurring?

He asked a rhetorical question that no Judiciary member was willing to challenge directly. “If not viability, when? Do you support abortion until birth?”

Opponents lean on eugenics

Well, yes, there is support for abortion until birth. The fear of disability permeated the room as one opponent of HB 578 after another testified against the bill. Gentle and clinical terms floated in the air: Tragic anomalies, said Dr. Smith.  Tragic circumstances, said Devon Chaffee of ACLU-NH.  Severe congenital abnormalities, said another Dr. Smith (J.J. Smith of the New Hampshire Public Health Association).  Lethal abnormalities, said Renee Novello, M.D., a Lebanon OB/GYN and abortion provider. (I’m not giving away any secrets there; she was candid about the scope of her practice.)

One phrase was unuttered yet deafening: better dead than disabled. 

(Forgive this brief digression: I confess that I take that personally. I have a medical condition which is easily treated now, but was considered a much more serious problem more than a half-century ago. In view of the mid-20th-century treatments for my “anomaly,” I’m glad I went undiagnosed until I reached adulthood.)

Does the bill call for extraordinary measures to care for a child with severe problems who survives attempted abortion? Here is the language of the bill (emphasis added):

No physician shall perform or induce an abortion upon a woman when it has been determined that the unborn child is viable unless there is in attendance a physician other than the physician performing or inducing the abortion who shall take control of and provide immediate medical care for a child born as a result of the abortion. During the performance of the abortion, the physician performing it, and subsequent to the abortion, the physician required to be in attendance, shall take all reasonable steps in keeping with good medical practice, consistent with the procedure used, to preserve the life or health of the viable unborn child; provided that it does not pose an increased risk to the life of the woman or does not pose an increased risk of substantial and irreversible physical impairment of a major bodily function of the woman.

Reasonable steps, good medical practice, with the determination of viability in the first place made by a physician and not a legislator. “Extraordinary” is nowhere in there.

One physician, to his credit, testified in favor of the bill. He did so after hearing several of the tragic-anomaly speakers. He said if early preemies get care – he did not say “extraordinary” care – they can survive. This was Richard Johnson, MD, a New Hampshire surgeon. He tossed a respectful bridge across the chasm separating advocates of the bill from opponents by acknowledging that Dr. Barry Smith had been his mentor and had delivered one of his children. “We disagree on the bill.”

Susan Clifton  testified about her grandchild born with Trisomy 14. No one had to tell her about the challenges facing families birthing and caring for children with disabilities, even lethal ones. Even so, she was there to support HB 578. Abortion for imperfection was apparently more than she could swallow.

Sister Mary Rose Reddy of Rochester kept her testimony brief and to the point. “Disabilities don’t make a child unfit to live. Abortion is a travesty.”

Vote not yet scheduled

There were so many speakers that the next hearing, buffer zone repeal, was pushed back by 45 minutes. Judiciary is chaired this year by Rep. Joe Hagan (R-Chester), who was considerate of everyone in the standing-room-only crowd while keeping his eye on the clock.

The date for a committee vote on HB 578 has not yet been set. It will go to the full House, where an ought-to-pass motion on a similar bill last year (HB 1625) lost by three votes, 148-151.

If HB 578 fails, New Hampshire will continue to be one of the only places in the world where preborn children may be “terminated” at any point in pregnancy. It will continue to be a place where there is no duty to care for children who survive attempted abortion.

Don’t tell me about a “pro-life” party. Let’s see how this bill fares. Let’s see if House leadership takes a position on it. Can a majority of representatives agree that viable children deserve protection? Is this a common-ground bill? If it isn’t, can there be such a thing?