In the State of New Hampshire, every proposed bill is presented with the opportunity for the public to weigh in. Today, there was an exceptionally charged bill which went to committee in the State House of Representatives: CACR 14 of 2020. It drew such a crowd that it was migrated from its original room to the House of Representatives chamber in the building across the road to fill a little more than half of the four hundred member seats there.
Why all the interest? Here’s the language CACR 14 seeks to add into the New Hampshire State constitution:
The right to make personal reproductive medical decisions is inviolate and fundamental to the human condition. Neither the State nor any political subdivision shall infringe upon or unduly inconvenience this right.
– CACR 14, New Hampshire
(introduced 22 January 2020)
For anyone not steeped in the history of the legalese used in this bill, a quick run-down of the landscape is helpful.
A Brief History of United States Abortion Law
This wording is based on various case law which was decided by the Supreme Court of the United States (SCOTUS). Roe v. Wade (Roe) may have been the first landmark abortion case, but it is not the current law of the land; in 1992, SCOTUS decided in Planned Parenthood v. Casey (Casey) that changed the standard, re-iterating (and somewhat fudging) that standard in Whole Woman’s Health v. Hellerstedt (Hellerstedt). (I’ve linked both the SCOTUS decisions as well as the Wikipedia articles for each case. I’m also summarizing below.)
The Roe ruling resulted in strict scrutiny and the trimester system: the government had to have a compelling reason to get involved, the first trimester was unregulatable, and the second and third trimesters were increasingly regulatable so long as there were exceptions for the mother’s health. Basically, the farther along in the pregnancy a mother was, the more the government could regulate. Casey invented a new standard – “undue burden” – and shifted to a viability standard: if the child could survive outside the womb, it had rights. Hellerstedt kept the undue burden standard and applied a balancing test to the imposed burdens. This is the current state of the law: undue burden via balancing tests and viability.
The Crux of the Issue
Here’s the obvious question question: what is an undue burden?
Whether or not you’re a member of the legal community, there isn’t a clear answer. Various provisions have been struck down since Casey, but even Hellerstedt struck down regulation based on the perceived motives of the legislators who wrote the law, meaning the provisions themselves were not unconstitutional. If the provisions had been struck down based on the law itself, I would hope for outrage: it’s literally a collection of rules to prevent women from dying in an abortion gone wrong. Based on this ruling, women are expected to settle for much lower quality (thus, much more dangerous) healthcare than men. (What’s new, right?)
Regardless, this is the present state of affairs. Couple this with the perception that the sitting SCOTUS bench will overturn Roe (and, presumably, Casey and Hellerstedt) to find panic boiling. Some people are pushing to codify the way things are: they want to turn the case rulings into bills and pass those bills into laws.
I’m all for the legislative process, but I want to know what the law means before it goes into effect.
A Metaphor
Let’s say the people who decide such things got together and decided to change the speed limit on a certain stretch of road. Perhaps there are too many accidents, or maybe they want to optimize gase mileage – pick your reason, but they opt to drop the speed limit. That change is well within their rights. Also suppose that new speed limit signs are too expensive, so they will still ticket offenders, but they’re not going to put the signs up to let them know where the speed limit has changed.
Two Parallels
I like the terms of patent law: “metes and bounds” determine rights. When someone submits an application for a patent, and the claims indicate something unknown, they are rejected as being indefinite. That means that because reasonable people wouldn’t know when they’re infringing on the patent, it can’t stick; the applicant has to revise the language so others know what they’re claiming with certainty.
Patents not your fancy? Let’s try sales instead.
Let’s say you’re in the market for a piece of land. I come up to you and I offer to sell you a piece of land. I went over your requirements and preferences, and I promise you it’s just what you’re looking for, and costs half what you were expecting to spend. So, interested, you ask to see it. My reply: not until I’ve got cash in hand from the purchase.
Would you jump? I’d advise against it: you don’t know what you’re getting. Sure, I’m trustworthy, but a number of things are likely to go wrong. For example, I might misunderstand one of your necessary stipulations: you said you wanted to be in Springfield, and I heard “Hampton” in the discussion; I took that to mean your interest was in Springfield, New York, but you were talking about Wolverhampton in England. That’s a pretty big difference.
Confused State of Affairs
This is effectively what’s happening here: we’re making laws that may (or may not) change the landscape, but nobody knows. Not even the legislators know what this law means. In the committee hearing today, one of the co-sponsors was asked a question as to how it would impact the rights of men, specifically men with children in utero but also how it might affect others. She stated that she didn’t know because it wasn’t her area of expertise. If the sponsors of the bill don’t know how it will impact citizens, how are the rest of the citizens supposed to figure it out?
And that’s the problem: where do you know what is okay and what isn’t based on a standard that means virtually nothing? It’s so vague that it doesn’t even necessarily enshrine the rights that it purports to: one pro-choice woman got up and opposed the legislation because it decreases the freedom of women. It’s also frightening because, based on the testimony of all three co-sponsors, it’s intended to embed a fundamental right to abortion into the state constitution: many pro-life advocates testified to the dangers of the proposed legislation from a variety of angles.
Testify!
Upon reading the bill, I researched to see if any of the wording from Roe and Casey and Hellerstedt had been clarified yet. Negative. Next, I cobbled together what I thought the legislators were likely to need to hear, and, knowing I don’t do well in front of crowds for more than thirty seconds, I distilled the statement until I could regurgitate it in half a breath.
Many stood up to speak their respective pieces. I signed up to speak, but I hedged: would there be anything more for me to say so far into the program? I was making excuses and I knew it; I get nervous in front of crowds. As the co-sponsors presented the bill and as others testified, I refined my speech; the opportunities were evident for me to use the words of the sponsors firmly against their bill, and I re-phrased it until it was golden eloquence.
Then it was my turn to speak.
When I went up to the microphone, I cracked a joke based on a funny little issue that had sprung up a few minutes prior (which, surprisingly, most people laughed at) and felt the space between my ears freeze with heat: stage fright had set in. Ears burning, I spit out the case names and that, due to the vagueness of the wording, “it doesn’t even mean anything.” Then I retreated. Including my intro, I might have made it to twenty seconds. I didn’t waste time stating my political identity or my background or anything else; I didn’t even thank them for granting me the space to speak while at the mic.
Afterward, some people reached out to me to tell me what I said was great. (I doubt that.) One in particular mentioned that I’m “such a powerful speaker.” Given that I couldn’t even remember what I said, I don’t understand how that was the case. I greeted another, a legal colleague, who promptly pointed out that I was the only person to reference the current case law; he was clearly happy about how things went. I went down to thank the committee chair for their time and specifically her efforts in maintaining a civil discourse (she intervened where appropriate). Day accomplished.
Plans Dashed, Succeeded
I had planned to make a short yet eloquent speech, drawing from the words of the co-sponsors and explaining the importance of knowing what a proposed bill means. I expected to point out that I was making a bipartisan case against the bill: regardless of affiliation, we should all want to know what a law means. I anticipated explaining that the legislature was in the perfect position to define the indefinite terms in the proposed bill itself so that we would all understand precisely what was meant so as to not have it construed in a way the citizenry wouldn’t expect. I wanted to point out the ironic stupidity of one of the included throw-away words. I wanted to make a case as an average citizen wanting to know what to expect of the law if it were to be enacted.
Well made plans don’t always happen the way they’re planned. That doesn’t mean they didn’t go the way they were supposed to. I made a stand against the bill, and I didn’t have to upset either side to do so. Finally, I made a point that nobody else had made in dual fashion: first, for citing the case law, and second, for pointing out the ridiculous ambiguity the case law has thrown us in.
Now that it’s all said and done, I’m glad I did it, and I’m more excited to keep trying until I can at least better manage my emotional reaction. I’m confident the hurdle is doable. Maybe I’ll even learn how to inspire others while I continue to grow.
Go For It
Have you recently tried anything that scared you or made you nervous? If you haven’t, I highly recommend adding it to your to-do list. It’s a great way to grow!
Have you ever stood up in a public setting for what you believe in? Have you done that in a congressional group? Today was my first time; it was exhilarating participating in the lawmaking process, but for me, it was simultaneously frightening. Do you have any tips for me in case I face the experience again? Are you planning to attend a hearing after reading about my experience? (I hope so!)
