One Step Forward, Three Steps Back

The Senate Judiciary Committee met in an executive session today and considered four Cornerstone-supported bills. The following is our analysis on the status of the bills. See the conclusion of this post for an urgent call to action. 

HB 542 — Religious Liberty Act. Positive Action from the Senate Judiciary Committee.

As passed by the House, Rep. Keith Ammon’s HB 542 would have done two things. First, the bill contained specific protections for houses of worship in states of emergency. Secondly, the bill sought to codify the results of the New Hampshire Supreme Court’s decision in State v. Mack in state statute. Mack was a decision providing general protections for religious liberty.

Although redundant, the Mack provisions in HB 542 ironically attracted most of the controversy around the bill. Opponents criticized the general idea of religious liberty and largely ignored the fact that this aspect of the bill was already state constitutional law.

Today the Senate Judiciary Committee passed an amendment, formulated in consultation with the Governor’s office and without discussion with any religious organizations in New Hampshire, which removed the general Mack protections from the bill. In supporting this amendment, Senator Sharon Carson referred to the idea of applying a balancing test in religious liberty cases as “egregious.” As Cornerstone has explained, however, these “egregious” protections are already state constitutional law.

Fortunately, the Committee version of HB 542 largely leaves intact the specific state-of-emergency protections for churches contained in the original bill. While Cornerstone would have liked to see the Committee approve Rep. Ammon’s bill as passed by the House, the amended version nonetheless does move the ball forward in protecting religious liberty. Cornerstone will continue to support HB 542 as amended.

HB 625 — Fetal Life Protection Act. More Work to Do.

At the conclusion of today’s executive session, the Senate Judiciary Committee passed an amended version of HB 625, Rep. Beth Folsom’s Fetal Life Protection Act. The good news is that this amended version did not contain any of the three sabotage amendments which Cornerstone feared might undermine the bill. Cornerstone is grateful to Senator Bill Gannon and Senator Harold French for not introducing any of these amendments.

Oddly, however, the Senate Judiciary Committee completely rejected an amendment sponsored by Senator Regina Birdsell. The Birdsell amendment was developed in consultation with numerous expert scholars and litigators around the country and was designed to make the bill as strong as possible in court. No member of the Committee gave any explanation as to why the Birdsell amendment was not adopted.

No legislation is perfect, and Cornerstone can live with and support most of the differences between the Senate Judiciary bill and the version we supported. But in two respects, the Birdsell amendment is critical. Cornerstone will fight for these two changes to be adopted on the Senate floor.

Severability of the bill

First, the Birdsell amendment significantly improved what is called the “severability clause” of the bill. If part of a law is invalidated in court, a severability clause helps the rest of the law to remain enforceable. 

The Committee rejected the Birdsell severability clause and instead kept the original clause. Although this original clause is commonly used in other New Hampshire laws, clauses exactly like it have repeatedly failed in abortion-specific litigation. The Birdsell clause would address this vulnerability.

Veto-proofing the bill

HB 625 requires that an ultrasound be performed before any abortion. The Birdsell amendment would have allowed non-physicians to perform the required ultrasound. The Senate Judiciary Committee strangely rejected this proposal and chose to require that a physician perform the ultrasound.

The Committee’s rejection of this change is particularly unusual. Although it would have moderated the bill, it was supported by the pro-life movement in the state. Because most abortions in New Hampshire are not performed by physicians, broadening the ultrasound requirement would avoid handing the Governor a convenient reason to veto the bill.

Now that HB 625 is moving on to the Senate floor, it is important to 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, both in court and against a possible veto.

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

The Senate Judiciary Committee has voted to retain HB 440, Rep. Jim Kofalt’s Civil Liberties Defense Act. This is a simple and common sense bill, and there was no good reason not to allow it to move forward. This was the last bill that the Committee had any reason to retain.

The bill provides simply that “civil liberties shall on no account be suspended” in a state of emergency. Given the coordination between the executive and legislative branches leading up to today’s hearing, the Committee’s choice to delay this simple bill should ring alarm bells about what some of our elected leaders think of our inalienable constitutional rights.

If some in our executive branch thought that the retention of this bill would make this issue quietly go away, we promise that nothing could be further from the truth. This issue could have been quietly disposed of by simply allowing HB 440 to become law. Today’s retention of the bill will only force Cornerstone and other groups to launch a far more public and prolonged campaign on this issue.

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

The Senate Judiciary Committee has voted to retain HB 233, Rep. Jordan Ulery’s Born Alive Infant Protection Act. The Committee did so without any discussion of the Cornerstone-supported Birdsell amendment, which was carefully developed in consultation with experts in the field and would have addressed many of the concerns raised by opponents of the bill.

Call to Action!

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, both in court and against a possible veto.

We will keep you updated on the progress of both HB 625 and HB 542 as they head to the Senate floor.