Pro-life policies in state budget: victory with an expiration date (UPDATED)

Update, 7/8/21: I am indebted to an attorney well-versed in pro-life policy who called me out on claiming that the language cited below would expire in two years. Instead, I’ll try for more clarity: it’s possible that it might not survive the next budget process. More about that below, in boldface.

For the first time since 1997, New Hampshire has a law limiting late-term abortion. Well, we’ll have one as of next January 1, and it may only be good – I said “may” – until the expiration of the budget on June 30, 2023. Still, after nearly a quarter-century, the Granite State will move ahead past the era of unregulated abortion.

I wondered if flipping the House and Senate would make a difference. Turns out it did.

It has taken me a couple of weeks to process this news. It’s stunning to me, as someone who was an activist even before 1997, to see this victory. Our pro-choice governor kept the word he gave in 2016. Pro-life reps worked to get pro-life language into the budget, after the Senate stalled a freestanding bill that would have done the job. Some pro-life budget conferees – who were Republicans, as it happens – wouldn’t let the provision be tossed out during budget negotiations.

We still don’t have abortion statistics, or a requirement that only medical personnel provide abortions (remember that the next time someone tells you abortion is a private “medical” decision), or conscience protection for health care workers who choose not to participate in the direct intentional termination of human life.

We can bet that the pro-life provisions in this budget will be up for debate and rejection in two years when the next budget is crafted. We can bet that the people promoting unregulated abortion will be fighting back, and in fact are doing so already.

So who wants it more? Do pro-life Granite Staters want to build on this victory?

What’s a pro-life law doing in the state budget?

Take a look at HB 2, the so-called trailer bill to HB 1. Together, the bills make up the state budget. The first few pages of HB 2 contain 139 specific spending instructions. As is traditional in the New Hampshire budget process, a bunch of bills that failed in the most recent legislative session found their way into HB 2. Topics ranged all over the place, so pro-life goals were hardly uppermost in budget crafters’ minds.

Number 15 among those 139 instructions is summarized thus in the bill’s analysis: “Prohibits the distribution of state funds awarded by the department of health and human services to a reproductive health care facility for provision of abortion services, and prohibits a health care provider from performing an abortion if the gestational age of the fetus is at least 24 weeks unless there is a medical emergency.”

Further along in the bill, on line 32 of page 13, we get the legislative name for this provision: “The Fetal Life Protection Act.” Sound familiar? It’s HB 625 from the past session.

Look at HB 2, page 14 line 14 to page 19 line 1. There’s the 24-week abortion limit.

HB 625 was passed by the House and tabled in the Senate. Thanks to pro-life legislators, the substance of the bill was rolled into HB 2. The usual suspects squawked, but the language survived the budget negotiation process. When Governor Sununu signed HB 1 and 2 into law, the pro-life language went into effect – but only on January 1, 2022, and it possibly might stand only for the duration of the current budget which will expire on June 30, 2023. [Note: an earlier version of this post said that the pro-life language would expire. In fact, the language MIGHT expire if the next legislature chooses to stick a repeal measure into 2023’s HB 2.]

Updated 7/8/21: I fear that the lesson here will be “live by HB 2, die by HB 2.” Sticking a long-sought pro-life provision into the state budget, the ultimate omnibus bill, was a successful tactic this year. You know what might be a successful tactic next time a budget is crafted in 2023? Inserting a repeal of the Fetal Life Protection Act into the state budget. It all depends who’s in the majority and who’s willing to defend pro-life policy. If pro-life policy was supported in this year’s budget – and it was – it will be just as easy for abortion advocates to repeal it in the next one.

Protecting taxpayers from funding abortion

What about taxpayer funding? Go to HB 2, page 13 line 32. In state contracts, “no state funds shall be used to subsidize abortions, either directly or indirectly.” This is backed up by an audit requirement. This is great to see in these days when the federal authorities take a very different line.

If an audit of a state contractor finds that state contract funds have been used to subsidize abortion, the contractor shall be ineligible for future state contracts or grants, OR shall “suspend all operations until such time as the state funded family planning project is physically and financially separate from any reproductive health facility.”

Will that be enforced? We’ll see.

On “seismic shifts”

Here’s a July 4 New Hampshire Sunday News headline, front page above the fold: “Some women see betrayal in budget’s social policies.” A paywall may prevent you from seeing the entire article, but the opening lines give you the gist. “Many New Hampshire women say they feel angry, outraged, even threatened, after state lawmakers inserted a number of social policies, including new abortion restrictions, into the state budget trailer bill. For many, the current atmosphere in Concord feels like a seismic shift in a state with a long history of trailblazing women.”

There’s been a seismic shift, all right, and it isn’t about undermining trailblazing women. It’s about pro-life women and their allies finally earning a seat at the table and refusing to be treated as tokens. It’s about coalition building and coalition management that has not always come easy to pro-life policymakers. It’s a seismic shift for any New Hampshire leader calling himself pro-choice to sign legislation that upsets abortion extremists.

I say bring on the seismic shifts. They’ve been a long time coming.

On an inside page of the Sunday News article, a pro-life voice is finally mentioned. Shannon McGinley of Cornerstone Action pointed out that not all women see “betrayal” in the budget. “Seven women legislators sponsored HB 625….I believe that women understand that abortion has not liberated women and that we can do better than abortion….”

In various posts I keep referring to Cornerstone Action, on whose behalf I used to lobby. No promotion or self-interest is involved. It’s just that they happen to have provided the most clarity as HB 625 and then the budget made their way through the legislative process. See their FAQs on the late-term abortion ban and their about-time-somebody-said-it “Pro-abortion Leaders are Lying about HB 2 Ultrasound Requirements.”

Next steps

Thank Governor Sununu. The man has done some infuriating things, but he got this one right. Tell him so.

Pray and work. If you’re involved in front-line pro-life ministry, make sure the community knows that the ministry exists.

Women who DON’T feel “betrayed” by pro-life policies might want to tell the Union Leader, after that July 4 front-page article. A social media post with a @UnionLeader tag would do, as would a more traditional letter to the editor. While you’re reading that article, take note of the people and organizations who opposed pro-life language.

Practice persuasion, even on legislation that doesn’t directly address anyone’s right to life. Extremism has held sway in Concord for so long that some legislators think conscience rights don’t exist where abortion is concerned. Some have forgotten that the First Amendment applies to peaceful pro-life witnesses. Remind them, as a neighbor.

To all who helped bring about this particular seismic shift, well done.

Life-issue bills: NH Senate to vote on committee recommendations this week

The New Hampshire Senate will meet Thursday, May 27 at 10 a.m. to consider Judiciary Committee recommendations on two life-issue bills.

HB 625, Fetal Life Protection Act

The Judiciary Committee voted 3-2 along party lines (GOP majority) to recommend Ought to Pass with Amendment on HB 625, concerning late-term abortions.

The committee – including Sen. William Gannon – did not recommend adding an exception for eugenic abortion. (See this blog’s earlier report on the bill.) Cornerstone Action, which favors HB 625, posted a report worth reading in full, outlining the committee’s actions and giving a call to action.

From the Cornerstone message: Contact your Senator now and ask him or her to support a floor amendment adopting—at minimum—the severability and ‘physician requirement’ sections of the Birdsell amendment. These changes are critical to protecting the bill [HB 625], both in court and against a possible veto.

HB 233, Born-Alive Infant Protection

A born-alive infant protection bill will not pass the year, with the Senate Judiciary Committee voting to re-refer HB 233.

Re-referral is the Senate’s version of what the House calls “retaining” a bill. The procedure keeps a bill in committee for the remainder of the calendar year, preventing a full-Senate vote until 2022.

The Senate’s May 27 session will be streamed online at http://sg001-harmony.sliq.net/00286/Harmony/en/View/Calendar/20210527/-1. This link will not be live until the session begins.

Time to kill the “buffer zone” law

“Safety and balance.” That has been the cry parroted by supporters of New Hampshire’s unenforced and unenforceable buffer zone law ever since its introduction and passage in 2014. Keeping people safe means keeping people silent: that’s some screwy balance. No wonder the law has never been used.

It’s time for the Sidewalk Free Speech Act, HB 430, which will have its hearing tomorrow, February 9, at 2 p.m. It will repeal the buffer zone law, if passed.

Four times, efforts to repeal that law have failed. It’s imperative to keep trying. It’s time to erase a blot on New Hampshire’s statutes by getting rid of the buffer zone law. See the end of this post for details on how you can let legislators know that.

HB 430 ought to pass with an overwhelming majority. Anyone who values the First Amendment will support it. Abortion will be unaffected when HB 430 passes, but First Amendment rights will be reaffirmed.

“Safety and balance”

New Hampshire’s buffer zone law allows abortion facility managers to decide the times and places members of the public may occupy public property within 25 feet of the facility. That’s a “buffer zone.” Municipal agencies may be consulted about a proposed zone, but have no say in whether a zone is actually set up.

Is there any wonder that no one has dared to set up a buffer zone so far? Just how hungry for litigation does someone have to be in order to support such a law? And yet legislators have continued to tolerate having the law on the books.

The sponsor of the buffer zone law, Sen. Donna Soucy (D-Manchester, still in office), cited “safety and balance” repeatedly as she shepherded her bill onto then-Gov. Hassan’s desk in 2014. She spoke as though the advocates of safety were somehow in opposition to advocates of peaceful witness.

The buffer zone law makes no distinction between violent action and silent prayer. Neither the actions nor the intentions of a person outside an abortion facility figure into the buffer zone law. Only the opinion of a “reproductive health care facility” manager carries any weight.

Sen. Soucy was concerned about violence, as though people praying on the sidewalk weren’t just as concerned about it. She spoke of safety, even though there was zero documentation by law enforcement that any ordinances or state laws had been used against peaceful pro-life witnesses outside abortion facilities.

Violence is abhorrent, inside and outside an abortion facility. The buffer zone law has done nothing, and can do nothing, to prevent it.

So if the buffer zone doesn’t prevent violence, what’s its purpose? It was written to squelch unpopular speech. The last time a law similar to New Hampshire’s got to the Supreme Court, the Court threw it out on its figurative ear.

Supreme Court says there must be alternatives

A Planned Parenthood of Northern New England lobbyist testified in 2014 that a buffer zone was necessary, as attested by 60 complaints made by patients at the Manchester facility.

Complaints made to police? No. Those 60 complaints were made to PP. None resulted in any law enforcement involvement. So were any laws or ordinances broken in the course of those 60 complaints? Apparently not. Either PP didn’t report any complaints to the police – which even now makes me wonder just how seriously they take patient safety – or PP knew that the “complaints” didn’t rise to the level of criminal activity such as harassment, trespassing, disorderly conduct, or breach of the peace.

That’s not a good enough reason to keep a buffer zone law. Don’t take my word for it. The U.S. Supreme Court ruled 9-0 in McCullen v. Coakley, relative to a Massachusetts buffer zone law, that one could not impose First Amendment restrictions outside an abortion facility without first using less-severe alternatives to address objectionable behavior. In legal parlance, restrictions outside abortion facilities must be narrowly tailored.

The Court affirmed the right of states to impose reasonable restrictions on the time, place, and manner of speech. Overbroad laws, however, won’t withstand Supreme Court scrutiny.

That old struck-down Massachusetts law was the model for the New Hampshire law, by the way.

To quote from Justice Roberts’s opinion in McCullen, which I repeat was a unanimous decision, even as the abortion-friendly Justice Ginsburg was participating:

To meet the requirement of narrow tailoring, the government must demonstrate that alterna­tive measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.

If Common­wealth officials can compile an extensive record of obstruc­tion and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law.  

McCullen v. Coakley, 573 U.S. 464

You have to enforce other laws and ordinances before impeding anyone’s First Amendment rights. Simple. Yet since 2014, that fact has not been enough to persuade New Hampshire legislators to throw out the buffer zone law. Republicans and Democrats alike bear the responsibility for ignoring McCullen; it’s a bipartisan error.

Fun fact: Massachusetts taxpayers eventually had to pay $1.2 million in legal fees to the attorneys for Eleanor McCullen, the plaintiff in the Massachusetts case.

Law enforcement avoided

Even today, as buffer zone repeal is introduced, Planned Parenthood of Northern New England seems to avoid calling on law enforcement. From a flyer distributed to patients at its Manchester facility this month: If you feel that you have been harassed or threatened by anyone near the health center at your health care visit today, please send an email to share your thoughts or experience to the email addresses below. Your voice and your privacy are important, and your elected leaders should hear from you: Office of Manchester Mayor Joyce Craig, email mayor@manchesternh.gov; Manchester ward 3 Alderman Pat Long, email long55@comcast.net. You can also call the Mayor’s office right now at (603) 624-6500.

Photo by Catherine Kelley. Used with permission.

There’s something missing from that flyer: contact information for the Manchester police. If patient safety were a concern, the police phone number would be listed first. It’s not listed at all.

How to contact House Judiciary Committee about HB 430

I’m going to urge the members of the House Judiciary Committee to vote OUGHT TO PASS on HB 430. Here’s how.

Sign in on HB 430 immediately. Don’t wait until the hearing begins; the committee might not see your sign-in. Use this online form: choose February 9, House Judiciary Committee, HB 430, representing self, supporting the bill; indicate if you plan to testify and the amount of time you think you’ll need. You may also email your testimony (see below).

Watch and participate in the hearing via Zoom online. (All public participation in hearings is remote for the time being.) Zoom log-in: https://www.zoom.us/j/96805083773, or dial 1-929-205-6099 (note: that is a toll number; keep that in mind if you’re calling from a landline!). The webinar ID is 968 0508 3773.

Email your written testimony to the Judiciary Committee as soon as possible; you need not testify via Zoom. An email to HouseJudiciaryCommittee@leg.state.nh.us will reach all committee members.

Don't buffer the First Amendment

Header photo: Michael Drummond/Pixabay.

Sununu victory, GOP legislature: what’s ahead?

New Hampshire Governor Chris Sununu, a Republican, has won a third term. The same election flipped the House and Senate from Democrat to Republican majorities, subject to a few Senate recounts.

Will this yield any pro-life legislation?

You may recall that when Sununu ran for Governor the first time, he ran an ad touting his “pro-choice” position, but later said that he supported certain common-sense measures: fetal homicide legislation, Women’s Health Protection Act (standards for operation of abortion facilities), healthcare freedom of conscience, a late-term abortion ban, and buffer zone repeal.

(From 2016: A concerned Republican and Sununu’s reply)

After two terms, he has signed a fetal homicide law. None of the other measures he mentioned has even made it to his desk. It’s possible that a Republican majority in House and Senate will make a difference. After all, the Republican majority during Sununu’s first term did manage to pass that fetal homicide law, with the help of four Democrats and one Libertarian.

“Pro-life” isn’t spelled G-O-P. Neither is “First Amendment,” for that matter, as I recall repeated failures to repeal the buffer zone law. Even so, maybe some of those common-sense measures mentioned by the Governor might have a chance in 2021.

Interim study on assisted suicide bill yields committee recommendation

The New Hampshire House Judiciary Committee voted 10-8 on September 1 to recommend that legislation addressing assisted suicide be considered in a future legislative session.

This is not the passage of any specific bill. It’s only a recommendation. This post is not a call to action, only a report. Here’s how we got here.

Read more of the post