Written Testimony of Danielle Pimentel, J.D. Policy Counsel, Americans United for Life. In Support of House Bill No. 346 Submitted to the House Committee on the Judiciary February 16, 2023

Dear Chairman Lynn, Vice Chairman Wallace, and Members of the Committee:

My Name is Danielle Pimentel, and I serve as Policy Counsel at Americans United for Life (“AUL”). Established in 1971, AUL is a national law and policy nonprofit organization with a specialization in abortion, end-of-life issues, and bioethics law. AUL publishes pro-life model legislation and policy guides on end-of-life issues, tracks state bioethics legislation, and regularly testifies on pro-life legislation in Congress and the states. Our vision at AUL is to strive for a world where everyone is welcomed in life and protected in law. As Policy Counsel, I specialize in life-related legislation, constitutional law, and abortion jurisprudence.

Thank you for the opportunity to provide written testimony in support of House Bill No. 346, the Born Alive Infant Protection Act (“H.B. 346” or “bill”). The bill establishes legal protections for infant survivors of failed abortions. I have thoroughly examined H.B. 346, and it is my opinion that the bill (I) is within New Hampshire’s powers to protect human life; (II) is critical to increasing the survival rates and providing comfort care to born-alive infant survivors; and (III) is a critical supplement to federal protections for born-alive infants. For these reasons, I urge the Committee to support H.B. 346.

New Hampshire Has Robust Powers to Protect Infant Survivors of Botched Abortions Through H.B. 346

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and returned the abortion issue to the democratic process. This means that the “States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” The Court recognizes that “[t]hese legitimate interests include respect for and preservation of prenatal life at all stages of development . . . [and] the preservation of the integrity of the medical profession.”

As Dobbs indicates, New Hampshire has robust powers to pass protections for infants who survive the abortion procedure. The bill before you today would provide greater protection for newborn life than what is currently offered in New Hampshire, as well as the federal Born-Alive Infant Protection Act (“BAIPA”).

Medical Intervention Is Critical to Increasing the Survival Rates and Alleviating the Suffering of Born-Alive Infant Survivors

Advancements in medical technology have allowed medical professionals to save prematurely born children at younger gestational ages. Preborn children as young as 21 weeks gestation have been able to survive outside the womb. According to an article from the American Academy of Pediatrics, “[r]ecent studies reveal that, with active treatment, infants born at 22 weeks’ gestation can achieve survival rates of 25% to 50%.” Reports from the Centers for Disease Control and Prevention (“CDC”) show that there are still as many as 10,000 abortions in the U.S. that occur at or after 21 weeks’ gestation. However, “[a] periviable infant (variously interpreted in the United States as one between 20 and 24 weeks gestational age) is a critically ill patient due to developmental immaturity.” Periviable infants need critical medical care, such as “goal-oriented intensive care including resuscitation and invasive interventions or . . . comfort-oriented end of life care such as warming, morphine for air hunger, and feeding if applicable.”

It is a common misconception that most late-term abortions are performed only for reasons of medical necessity. As the American Association of Pro-Life Obstetricians and Gynecologists (“AAPLOG”) states, “most abortions are done for social reasons.” Dr. James Studnicki published a similar outcome in Health Services Research and Managerial Epidemiology regarding late-term abortions. As he says, “[t]he Guttmacher Institute has provided a number of reports over 2 decades which have identified the reasons why women choose abortion, and they have consistently reported that childbearing would interfere with their education, work, and ability to care for existing dependents; would be a financial burden; and would disrupt partner relationships.” Accordingly, most abortions occur for elective reasons of the mother, not because of the baby’s medical condition.

The bill protects all infants born alive, regardless of the child’s gestational age at the time of birth. Medical pioneering teams are working to increase the survival rates for extremely premature babies. Previable infants born alive have human dignity and deserve comfort care, which they would receive under this bill. As AAPLOG recognizes, “[a] previable infant born alive (variously interpreted as a fetus delivered before 20 to 24 weeks, with those before 20 weeks being termed abortus or miscarriage in medical literature) is a patient at the end of his or her natural life.” Medical professionals can provide perinatal palliative care to these young patients, which “focus[es] on maximizing quality of life and comfort for newborns with a variety of conditions considered to be life-limiting in early infancy,” which “includes lethal fetal conditions” such as extremely premature delivery after a botched abortion. Perinatal palliative care plans “must include plans for assessment and care of the newborn and should include considerations such as newborn bonding and skin-to- skin contact, warmth, hydration, feeding and lactation, management of respiratory distress, and pain control.”

While there isn’t standardized abortion reporting in the United States, the reports that are available, along with the stories from survivors, show it is not a myth that there are infants born alive following an abortion procedure. For example, one CDC report found that over a 12-year period, at least 143 babies survived the abortion procedure before ultimately passing away. But the CDC notes “it is possible that this number (143) underestimates the total number of deaths involving induced termination.” A study published in Obstetrics & Gynecology found that of the 241 preborn children aborted for having a fetal anomaly between 20 and 24 weeks gestational age, 122 infants survived the procedure before ultimately passing away.

Research organization Charlotte Lozier Institute has also gathered information from voluntary state abortion reports. It found that information on born-alive infants was available from eight states: Arizona, Arkansas, Florida, Indiana, Michigan, Minnesota, Oklahoma, and Texas. Thirty-five infants were born alive in Arizona, Florida, Minnesota, and Texas in 2020 and 2021. Another eight babies were born alive in Florida in 2022. In this regard, infants are surviving attempted abortions, and they are in critical need of medical intervention to increase their chances of survival and to provide comfort care.

H.B. 346 Supplements the Federal BAIPA, Providing Necessary, Commonsense Protection for Born-Alive Infants

In 2002, Congress passed BAIPA, clarifying that federal law recognizes infants born alive at any stage of development as persons. While the law acknowledges that all born-alive infants have equal legal standing regardless of the circumstances of their birth, the law does not ensure the infant will receive life-saving protection should he or she need it. It is still necessary to require an affirmative action by a physician to ensure that an infant born alive after an abortion receives the same level of medical care as any other infant would.

H.B. 346 is more comprehensive than the federal BAIPA and fills in its gaps by expanding protections for born-alive infants. The bill specifies that born-alive infants are legal persons and entitled to full protection under state law.26 H.B. 346 makes it a class A felony for health care professionals to “withhold[] medical treatment from a born-alive infant with the intention of causing or hastening the infant’s death, and who thereby materially causes or hastens the death of the infant.” Similarly, healthcare professionals may not perform an action to intentionally cause or hasten the death of newborn infants.

Currently, New Hampshire has the Live-Birth Infants Protection Act. This law merely defines a “live-birth,” and indicates that the definition applies “whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.” Unlike the bill, the Live-Birth Infants Protection Act does not recognize the legal protection of born-alive infant survivors, nor create an enforcement mechanism to ensure these infants receive medical care. Accordingly, H.B. 346 would bring New Hampshire in line with many other states that meaningfully mandate life-saving medical care for born-alive infants. At least thirty- five other states have some form of protection for newborns who survive the abortion procedure.

H.B. 346 is also necessary because the federal BAIPA has limited application. It only extends to hospitals operated by the federal government or those which receive federal funding, and the hospital’s employees. It would not require many private or state-operated clinics and hospitals to provide care or medical attention to born-alive infants. However, the ability to have an abortion in New Hampshire does not include the right to commit infanticide, nor justify the denial of basic protections for born, living human infants. H.B. 346 would create the affirmative duty of healthcare providers to give medically appropriate and reasonable care for the most vulnerable members of the community.

The bill ensures New Hampshire’s desire to protect a living newborn does not remain merely a nice thought or idea. By providing for civil and criminal penalties for violation of the law, in line with violations of other codes of professional conduct, this bill ensures that infant protections will be properly and consistently enforced, making these safeguards more than just a rule on paper.

Conclusion

I strongly encourage the Members of this Committee to support H.B. 346 and continue to uphold the Commonwealth’s duty to protect the lives of all its citizens, no matter the circumstances in which they were born.

Additional NH Testimony

Additional testimony to New Hampshire can be read below in .PDF form:

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