A Sad Day of Setbacks in NH Senate on Civil Liberties, Life

The Senate Judiciary Committee met in an executive session yesterday and considered two Cornerstone-supported bills, delivering disappointing setbacks to both pieces of legislation. Read our analysis below on what happened, and learn what you can do now to help restore these important human rights bills.

HB 440 — Civil Liberties Defense Act. Negative Action from the Senate Judiciary Committee.  

Update 12/22: See a recent in-depth analysis of the status of HB 440 from our General Counsel.

HB 440, Rep. Jim Kofalt’s Civil Liberties Defense Act, seeks to correct the fact that New Hampshire state law allows a governor to suspend civil liberties in a state of emergency—a power most other governors in the United States do not have.

Rep. Kofalt’s bill was the most basic and important of the emergency powers reforms passed by the House last session—and it should have become law long ago. Unfortunately, it was retained by the Senate Judiciary Committee in a May 2021 executive session. Yesterday, the Committee took up the bill and passed it, but not before stripping most of the legal substance from the bill.

As Rep. Kofalt has correctly pointed out, the minimum core needed for HB 440 to effectively protect civil liberties was sections 4-7 of the bill passed by the House. The Judiciary Committee’s version removed everything from the bill except section 7. 

As amended by the Committee, the bill leaves open at least three different avenues for future governors to potentially suspend civil liberties during emergencies. In fact, without section 4—the definitions section of the House bill—it is unlikely that section 7 will actually do anything. 

Cornerstone was surprised and disappointed that the Committee once again acted against this commonsense bill. While it is well-known that the Governor’s office holds considerable sway over the Senate, we did not expect that the Governor personally wanted to retain the power to suspend civil liberties. Our concern was about how a future governor might abuse these powers—not Governor Sununu. If the Governor’s office was involved in today’s decision, that should raise alarm bells about how he intends to use these powers.

The original substance of HB 440 is necessary to protect all of our state and federal constitutional rights during states of emergency. In its current weakened state, it fails to do so. Contact your state senator now and tell them to reject the committee recommendation and vote to restore the version that was passed by the House or, at a bare minimum, to use a floor amendment to restore sections 4-7 of the House bill

For more on the Civil Liberties Defense Act, see our overview containing a wealth of resources on the bill and why it is important.

HB 233 — Born Alive Infant Protection Act. Negative Action from the Senate Judiciary Committee.  

As amended by the Birdsell Amendment, this bill would have imposed felony penalties on any health care provider who “withholds 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.”

The bill also contained equivalent language prohibiting health care providers from performing an “overt act” with the intention of causing or hastening a newborn infant’s death, such as chemically euthanizing the child. The Birdsell Amendment was carefully developed in consultation with legal experts in the field, resolving most of the criticisms that had faced the original bill in the House.

One might think that the Committee would view this clearly-written bill as a commonsense clarification of current law. Instead, the Committee voted to send the bill to a “study committee,” stating that it was a complex issue and that the Committee needed to be sure that it “got this right.” A study committee is a common procedural maneuver used to kill a politically inexpedient bill. This also comes after the Committee retained the same bill in May and held it for more than five months.

A charitable interpretation of the Committee’s actions yesterday would be that they were under political pressure in the wake of the pro-abortion lobby spending millions of dollars opposing New Hampshire’s modest six-month abortion ban. Could it be that the Committee actually believes that whether a health care provider should be permitted to purposefully kill a newborn is a difficult issue? We certainly hope not. Either way, it is a chilling decision for the basic human rights of newborn children.

The Committee has maneuvered to keep this bill from reaching the Senate floor for long enough. Contact your state senator now and tell them to oppose the study committee and vote to pass HB 233 with the Birdsell Amendment. 

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