As if the November 6 ballot didn’t have enough on it, a pair of proposed amendments to the New Hampshire constitution will be on there, too. One of them, Question 2, is about privacy. My opinion, for what it’s worth: I’m going to vote No.
There’s one way to get my vote on “privacy” language in the state constitution: make it abortion-neutral. Something like “nothing in this constitution secures or protects a right to abortion.”
Such neutrality is not written into Question 2, which says An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.
I know the sponsors’ intentions are good. They mean for the amendment to address “informational” privacy. That doesn’t change the fact that there’s been too much nonsense in other states from courts that have determined that a state constitution provides more protection for abortion rights than does Roe v. Wade, sometimes on the basis of privacy language in the constitution.
Anyone concerned with the right to life has known for more than 40 years how “privacy” has been torqued out of shape to accommodate abortion policy. Cornerstone Action (for which I’m a consultant) has contacted attorneys who reviewed the language of Question 2 and confirmed that there’s cause for concern. More from Cornerstone on Question 2 here.
I wrote about a related story over on DaTechGuy blog a few weeks ago. On the first day of its 2018-19 term, the U.S. Supreme Court declined to hear a challenge to a 2014 Tennessee ballot measure that put abortion-neutral language into the Tennessee constitution. Why was the ballot measure needed? Because a Tennessee court found in 2000 that the state constitution somehow provided a right to abortion broader than Roe.
It took 14 years for Tennessee voters to rectify the court’s error.
I have had earnest discussions about Question 2 with New Hampshire legislators and attorneys. Some see no need for concern. They can’t imagine any New Hampshire judge reading something into a constitutional amendment that sponsors didn’t intend. Others disagree.
Remember, judges in New Hampshire are nominated by a governor who calls himself pro-choice.
That’s my opinion. Yours may vary. See you at the polls.
That was quite a ride the New Hampshire House gave us yesterday, swerving into a figurative ditch time and again while getting back on track just often enough to let me catch my breath. And all this after 5 p.m.! That’s how long it took for the Judiciary committee bills to come up for a vote. My long-suffering husband and son endured dinner with the livestream of the House session droning in the background.
And what was the upshot of all of it?
A buffer zone repeal bill passed very narrowly, and now goes to the Senate where the buffer zone law originated.
A “right to privacy” constitutional amendment got a majority of votes, but lost because it didn’t get the necessary three-fifths required for a constitutional amendment to advance. Similar amendments in other states have been used to block pro-life legislation, whether sponsors intended that or not.
Three bills to limit mid- and late-term abortions were killed. One of them was killed without debate. The debates on the other two made clear that while none of them will come out and say so, abortion supporters DO want to overturn Roe, in a manner quite different from what one might expect. Read on for more about this.
Another no-debate quickie: a proposal to treat abortion facilities like ambulatory care facilities was killed.
A proposal to keep all state funds, personnel and facilities away from abortion providers was killed.
A bill to criminalize the sexual trafficking of minors passed.
I will link to the roll calls in a later post. You can find them yourself at the legislative web site. Remember that “yes” isn’t necessarily a pro-life vote; if the motion is ITL (inexpedient to legislate), a “yes” vote is a vote to kill the bill. Hats off to the legislators who made sure roll calls took place, despite any annoyance the Speaker of the House might have been feeling.
This is a lengthy post. What can I say? The House inspires me.
Before I go any further, let me salute Rep. Glenn Cordelli (R-Tuftonboro), whose speech in favor of a ban on eugenic abortion was the most moving and powerful of all the pro-life appeals in the House yesterday. I wish I’d recorded it. His strong appeal to his colleagues’ better natures, his plea that they reject discrimination against preborn children with genetic abnormalities, was calm and clear. It is a sharp jolt to know that the House voted inexpedient to legislate on the measure, 224-88, the most lopsided anti-life vote of the day.
A glimpse at a post-Roe legislative landscape
Opponents of limits on late-term abortion argued forcefully for their colleagues to ignore Roe v. Wade, without saying so directly, and possibly without realizing it.
Emerging from Justice Harry Blackmun’s twisted reasoning in Roe v. Wade was a feeble nod in the direction of the preborn child – “the potentiality of human life,” in the Justice’s words – that allowed even in 1973 the possibility of limiting late-term abortion.
“We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct…and, at a point during pregnancy, each becomes ‘compelling.’…With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability….State regulation protective of fetal life after viability thus has both logical and biological justifications.” (Roe v. Wade, 420 U.S. 113 (1973), pp. 162 et seq.)
What one abortion advocate after another said on the New Hampshire House floor yesterday was that a woman’s right to abort her child is paramount throughout pregnancy. No limits are tolerable. Forget this viability business. As Rep. Larry Phillips (D-Keene) said during the debate on HB 1623, the bill to bar abortions performed on the grounds of genetic problems, “This is about the autonomy of women.”
For years, pro-lifers have seen the overturning of Roe as a much-desired goal. In the 1970s, it seemed that ditching Roe would overturn legal abortion nationwide. Later, in the ’80s and ’90s, it became clear that overturning Roe would simply send abortion back to the states, where pro-life legislation was being passed piecemeal. That’s where we think we are now.
What if Roe is overturned not by a Court that acknowledges the right to life at every stage of development, but a Court that agrees with Rep. Phillips that this is all about women’s autonomy at every stage of pregnancy and that viability is therefore irrelevant?
Think it can’t happen? Repeat after me: Ginsburg. Sotomayor. Kagan. Breyer. The Court’s biggest question mark (which way will he jump next?), Kennedy.
That’s five, folks. With the right case, Roe will be gone, and in its wake will be not a return to the states, but an affirmation that abortion is purely what Rep. Phillips said it is, a matter of autonomy. Viability will be irrelevant under law nationwide and for generations.
The New Hampshire House gave us a look at that yesterday: no abortion regulation or restriction on the basis of fetal viability. No limit or oversight on eugenic abortion. No restriction on the basis of fetal pain.
Don’t blame it all on Democrats. It took some Republicans to kill these bills.
Buffer zone repeal bill approved, barely
The vote on buffer zone repeal was 160-152. It doesn’t get much closer. HB 1570 now goes to the Senate where a 12-12 tie is likely.
Rep. Gary Hopper had the presence of mind to call for reconsideration – in this case, a parliamentary move. He asked for reconsideration and asked his colleagues to vote No. Failure of a reconsideration motion keeps a bill from being brought up again. Smart move.
The ongoing mischaracterization of the buffer zone law is a running sore. Rep. Janet Wall (D-Durham): “This bill is not about behaviors but about allowing space…The Massachusetts law [that was thrown out by the U.S. Supreme Court] was very definite; the New Hampshire law allows flexibility…Wait to see what the federal court will do.”
The federal court has already done something: prevented enforcement of the law. The state’s determination to forestall the inevitable – that is, overturning the law, so obviously inconsistent with the Supreme Court’s McCullen v. Coakley decision – is one reason the New Hampshire case has stalled.
The “flexibility” of the New Hampshire law – even in committee, Rep. Wall was a huge fan of the “up-to-25-feet” provision in the original law – comes from the fact that the law delegates to abortion providers the right to determine the size, precise location, and enforcement hours of any “buffer zone.” In other words, a private entity is granted the right to determine when the public may occupy public space.
In addition, the reason the Massachusetts law was overturned had nothing whatsoever to do with “definite” things like the size of the zone. It was a First Amendment decision, pure and simple. I suspect Rep. Wall knows that; she’s an intelligent woman.
Rep. Frank Heffron (D-Exeter) continued the mischaracterization. The buffer zone law “exists to protect women from harassment and abuse.” Actually, anti-harassment laws exist for that purpose, as do laws against trespassing and disorderly conduct – none of which have needed to be used in recent years outside New Hampshire abortion facilities, if law enforcement records are accurate.
Rep. Heffron said the need for the buffer zone was expressed in the “findings” in the buffer zone law, including “fear and intimidation” experienced by women entering abortion facilities. He couldn’t refer to documented criminal charges against any recent peaceful pro-life witness in New Hampshire because there haven’t been any. He couldn’t explain how a violent assailant would be any less a threat to women entering a facility than to women praying outside it, or how a buffer zone law would be useful in such an instance.
Like Rep. Wall, he claimed that the New Hampshire law isn’t really like the old Massachusetts law. Tell it to the federal judge who issued an injunction against our law.
It took Rep. Kurt Wuelper (R-Strafford) to bring his colleagues back to the point. “This [buffer zone] law is intended strictly to restrict rights of citizens on public property. It seeks to restrict the right to speak.” His argument prevailed, all too narrowly. On to the Senate.
Rep. Groen is gavelled twice
The “buying, selling, and experimenting on unborn infants or bodily remains resulting from abortion” would have been banned by HB 1663. The House killed the bill on an “inexpedient to legislate” motion, 155-122.
Might’ve been instructive to have been running the Center for Medical Progress videos on the State House plaza during that vote, but never mind.
Rep. Linda Kenison (D-Concord) made the claim “there is no voluntary tissue donation in New Hampshire.” Really? Anywhere? That would be a relief of sorts. Documentation would be nice. “This is a strategy to restrict a woman’s access.” How? Would an abortion provider refuse to do a procedure on a woman who doesn’t want her child’s remains bought and sold? Now that would be a story.
The Speaker of the House, Shawn Jasper (R-Hudson), apparently had his gavel ready when Rep. Warren Groen (R-Rochester) rose to speak in favor of HB 1663. Groen began to speak about the parallels between modern-day fetal tissue trafficking and the medical excesses of the Nazi regime. Down came the gavel with a sharp rap. “We’re not dealing with Naziism today.” After a pause, Groen resumed, mentioning Robert Jay Lifton’s book The Nazi Doctors (on my bookshelf nearby as I write this, as it happens). Gavelled again. Another pause. Rep. Groen resumed, leaving the Nazis out of it.
Some of the reps who had no qualms about killing the mid- and late-term abortion bans were apparently given pause by this bill. It was killed, but on a closer vote than I expected: inexpedient to legislate, 155-122.
Public funds for abortion counseling: yes, you’re paying
HB 1684 labored under the handicap of coming near the end of an eleven-hour session day in a roomful of legislators who just wanted to go home. The bill would have prohibited the use of public funds, employees, and facilities in assisting or performing abortion. It also would have prohibited public employees within the scope of their employment from counseling or encouraging a woman to get an abortion not necessary to save the woman’s life, and it would have required a second opinion before an abortion could be performed on a woman whose life was deemed to be in danger
Nope, said Rep. Charlene Takesian (R-Pelham), who spoke against the bill. She sounded particularly exercised that a state employee would be prohibited from telling (for example) a pregnant jail inmate about all her options. They’re under no such prohibition now, you see.
An ought-to-pass motion failed on a roll call vote, 131-146, and then “inexpedient to legislate” passed on a loud voice vote which over the live stream sounded mighty close.
Republican Reps. Neal Kurk of Weare and Claire Rouillard of Goffstown made strong pitches for CACR 22. Both of them rejected any suggestion that the measure was about abortion. Rep. Bill O’Brien (R-Mont Vernon) questioned Kurk closely on that point, mentioning the trouble that other states have had with privacy amendments and pro-life legislation. Kurk dismissed the concern out of hand, saying he had confidence in the good sense of New Hampshire courts.
Fortunately, that “good sense” won’t be tested on this measure, which attracted a majority ought-to-pass vote but not the three-fifths it required.
Human trafficking bill passes
I’ll close with good news: HB 1628 passed, making it a class B felony to pay to engage in sexual activity with anyone under the age of 18. Governor Hassan issued a statement following the vote: “In 2014, we passed bipartisan legislation to strengthen protections for human trafficking victims, and this measure builds on those efforts by establishing enhanced penalties for human trafficking of minors. I thank the House for passing this common-sense legislation, and I encourage the Senate to continue its efforts in the fight against this deplorable crime.”
For once, I agree with the Governor on what constitutes common-sense legislation.