HB 562-FN - AS INTRODUCED

2023 SESSION

23-0260

05/04

HOUSE BILL 562-FN

AN ACT requiring informed consent prior to receiving an abortion procedure.

SPONSORS: Rep. Testerman, Merr. 3; Rep. Sellers, Graf. 18; Rep. Peternel, Carr. 6

COMMITTEE: Judiciary

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ANALYSIS

This bill establishes the women's right to know act, regarding the type of informed consent required prior to receiving an abortion procedure.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

23-0260

05/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT requiring informed consent prior to receiving an abortion procedure.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  New Chapter; Women's Right to Know Act.  Amend RSA by inserting after chapter 132-A the following new chapter:

CHAPTER 132-B

WOMEN'S RIGHT TO KNOW ACT

132-B:1 Definitions.  In this chapter:

I.  “Abortion” means the same as that term is defined in RSA 329:43, I.

II.  “Chemical abortion” means the use or prescription of an abortion-inducing drug dispensed with the intent to cause an abortion.

III.  “Medical emergency” means any condition which, in the reasonable medical judgment of the patient’s physician, so complicates the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the female will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

IV.  “Physician” means any person licensed under RSA 329. The term includes medical doctors and doctors of osteopathy.

V.  “Probable gestational age of the embryo or fetus” means what, in the judgment of the physician, will with reasonable probability be the gestational age of the embryo or fetus at the time the abortion is planned to be performed.

132-B:2 Informed Consent.  No abortion shall be performed in this state except with the voluntary and informed consent of the female upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if, and only if:

I. The female is told the following, by telephone or in person, by the physician or the licensed medical professional to whom the responsibility has been delegated by the physician who is to perform the abortion at least 24 hours before the abortion:

(a) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies, and infertility;

(b) The probable gestational age of the embryo or fetus at the time the abortion is to be performed;

(c) The medical risks associated with carrying her child to term; and

(d) If a chemical abortion involving the 2-drug process of mifepristone is initiated and then a prostaglandin such as misoprostol is planned to be used at a later time, the female shall be informed that:

(1) It may be possible to counteract the intended effects of a mifepristone chemical abortion by taking progesterone if the female changes her mind, before taking the second drug, but this process has not been approved by the Food and Drug Administration.

(2) After the first drug involved in the 2-drug process is dispensed in a mifepristone chemical abortion, the physician or agent of the physician shall provide written medical discharge instructions to the pregnant female which shall include the statement:

“If you change your mind and decide to try to counteract the intended effects of a mifepristone chemical abortion, if the second pill has not been taken, please consult with your physician.

(A) You might experience a complete abortion without ever taking misoprostol;

(B) You might experience a missed abortion, which means the fetus is no longer viable, but the fetus did not leave your body; or

(C) It is possible that your pregnancy may continue; and

(D)  You should consult with your physician.”

(e) The female shall certify, as part of the informed consent process for any medical procedure, that she has been informed about the above possibilities regarding a chemical abortion.

(f) Notwithstanding any law to the contrary, a physician acting in conformity with the informed consent provisions of this subparagraph relating to the possibility of counteracting the intended effects of a chemical abortion, or a physician prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion is not liable for any loss, damage, physical injury, or death arising from any information provided by the physician related to counteracting the intended effects of a chemical abortion or arising from prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion.

(g)  The information required by this paragraph may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied by the female to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician and whatever other relevant information is reasonably available to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician. It may not be provided by a tape recording, but must be provided during a consultation in which the physician or licensed health care professional to whom the responsibility has been delegated by the physician is able to ask questions of the female and the female is able to ask questions of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician.

(h)  If a physical examination, tests or the availability of other information to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician subsequently indicate, in the medical judgment of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician, a revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time before the performance of the abortion procedure.

(i)  Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.

II. The female is informed, by telephone or in person, by the physician who is to perform the abortion, or by an agent of the physician, at least 24 hours before the abortion procedure:

(a)(1)  That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care through governmental or private entities;

(2) That the father, if his identity can be determined, is liable to assist in the support of her child based upon his ability to pay even in instances in which the father has offered to pay for the abortion;

(3) That she has the right to review the printed materials described in RSA 132-B:3, that these materials are available on a state-sponsored website and the website address; and

(4) That the female will be presented with a form which she will be required to execute prior to the abortion procedure, and that the form will inform her of the opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image, if an ultrasound is performed.

(b)  The physician or an agent of the physician shall orally inform the female that the materials have been provided by the state of New Hampshire department of health and human services and that they describe the embryo or fetus and list agencies and entities which offer alternatives to abortion.

(c)  If the female chooses to view the materials other than on the website, then they shall either be provided to her at least 24 hours before the abortion or mailed to her at least 72 hours before the abortion by first class mail in an unmarked envelope.

(d)  The information required by this paragraph may be provided by a tape recording if provision is made to record or otherwise register specifically whether the female does or does not choose to have the printed materials given or mailed to her.

III.(a)  The form required in subparagraph II(a)(4) shall include the following information:

(1) It is a female’s decision whether or not to undergo any ultrasound imaging procedure in consultation with her health care provider;

(2) If an ultrasound is performed in conjunction with the performance of an abortion procedure, the female has the right to view or to decline to view the image; and

(3) That the female has been previously informed of her opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image.

(b)  The female shall certify her choice on this form prior to the abortion procedure being performed.

IV.  The female shall certify in writing, before the abortion, that the information described in paragraphs I and II has been provided to her and that she has been informed of her opportunity to review the information referred to in RSA 132-B:3.

V.  Before performing the abortion procedure, the physician who is to perform the abortion or the physician’s agent shall obtain a copy of the executed certification required by this section.

132-B:3  Printed Information.

I. The department of health and human services shall publish and make available on the department's website the following printed materials in such a way as to ensure that the information is easily comprehensible:

(a) Geographically indexed materials designed to inform the reader of public and private agencies and services available to assist a female through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer, and the manner in which they may be contacted, including telephone numbers. At the option of the commissioner, a 24-hour-a-day telephone number may be established with the number being published in such a way as to maximize public awareness of its existence which may be called to obtain a list and description of agencies in the locality of the caller and the services they offer.

(b) Materials designed to inform the female of the probable anatomical and physiological characteristics of the embryo or fetus at 2-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus’s survival and pictures or drawings representing the development of an embryo or fetus at 2-week gestational increments; provided, that any such pictures or drawings must contain the dimensions of the embryo or fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the embryo or fetus at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion, and the medical risks commonly associated with carrying a child to term.

(c) Materials designed to inform the female of the range of possibilities regarding the effects and risks of a mifepristone chemical abortion or an attempt to counteract it and information on and assistance with the resources that may be available.

II. The materials referred to in paragraph I shall be printed in a typeface large enough to be clearly legible. All pictures appearing on the website shall be a minimum of 200 x 300 pixels. All letters on the website shall be a minimum of 11-point font. All information and pictures shall be accessible with an industry standard browser requiring no additional plug-ins.

III. The materials required under this section shall be available at no cost from the department of health and human services, upon request and in appropriate numbers to any person, facility, or hospital.

2  Effective Date.  This act shall take effect January 1, 2024.

LBA

23-0260

1/9/23

HB 562-FN- FISCAL NOTE

AS INTRODUCED

AN ACT requiring informed consent prior to receiving an abortion procedure.

FISCAL IMPACT:      [ X ] State              [    ] County               [    ] Local              [    ] None

METHODOLOGY:

This bill establishes the women's right to know act, regarding the type of informed consent required prior to receiving an abortion procedure. The Department of Health and Human Services indicates this bill would require the Department to design, produce, and make materials available on the Department website related to the listing of services and organizations that are available to assist and support a women’s pregnancy.  The Department would be required to provide the materials to the public, facilities and hospitals upon request. The Commissioner of Health and Human Service may establish a 24-hour a day call line to maximize public awareness of these services, agencies and organizations.

The Department reports, according to the Guttmacher Institute, New Hampshire was estimated to have approximately 2,200 pregnancy terminations in 2017, the latest year estimates were produced.  The Department does not collect pregnancy termination statistics, but based on the 2017 number, it is estimated that at least 3,000 copies of the required materials would need to be made or purchased.  The Department estimates a cost of $11,800 in FY 2024 if materials are available for purchase and or copying.

The Department estimates, if the materials described are not preprinted and available for purchase, the cost to design, produce and distribute the materials would be at minimum $50,000.  However, the Department cannot estimate how many women will be seeking abortion services and or the quantity of materials that will be requested by facilities and hospitals.  As a result, the remaining cost is indeterminable.  

In addition, the Department estimates that a staff member from the Division of Public Health Services would need to devote approximately 10 percent of their time to the duties required by the bill such as: writing and designing the information, purchasing any pre-made information, keeping the information on the website current, and sending out information to appropriate health care providers and members of the public.  The Department indicates it does not have current staff available to perform this work and additional staff, overtime or compensatory time would be necessary.  The Department assumes duties would require a position in the classification of Nurse Coordinator position (LG 23, Step 9).  Ten percent of the annual cost of this position, including salary benefits and other expenses would be approximately $10,500.

AGENCIES CONTACTED:

Department of Health and Human Services