2021 NH Budget and Legislative Update - 6.25.21
As you are no doubt aware, the Biennial NH Budget was passed yesterday. While it now moves to the Governor, he has indicated that he will sign the bill. The budget passing marks the unofficial end of the 2021 Legislative Session. Bills will continue to move to the Governor’s desk, and we may yet have bills vetoed, this email provides a broad overview of the session.
Obviously, this was an atypical session, following on from the pandemic, remote sessions, emergency orders and a multitude of other factors. Politically, the session was marked by an increase in the “Freedom Caucus” and House leadership's decision to move further “right” to gain votes, rather than work with Democrats in the House. This gave rise to a number of controversial bills which were placed in the budget Trailer Bill (HB2) and animated much of the advocacy over the past weeks.
These bills include Divisive Concepts (HB544), 24-week abortion ban (HB625) and required physical separation in clinics where abortions are performed. This final section was not part of a policy bill but was added in the House Finance phase. The Senate removed it and the House insisted it be added back. The physical separation requires clinics to move toward physical separation of abortion and non-abortion services. The stated intent is to “assure” the public that “0 state dollars” are used for abortion. Ultimately, the Department of Health and Human Services will be responsible to certify these separations. Facilities where compliance “cannot be determined” must either: 1) forgo all State dollars or 2) must close their facilities until compliance can be assured. The language places a significant onus on clinics performing abortions, since there are already limited dollars. Physical separation will add significant overhead to these clinics and will likely limit the number of providers in the State. This is likely the hoped-for outcome by the sponsors, but this rationale was not discussed publicly.
The Divisive concepts bill was altered in the Senate and then amended again in the Conference Committee. The Senate changed the references to only include public employers, including schools and universities. The House added a section which appears intended to prohibit teaching the impacts of systemic racism. The section reads:
V. That discrimination against or adverse treatment of individuals because of their age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or natural origin is a fundamental component of the state of New Hampshire or the United States. [emphasis added]
The language in the bill and the amendment is confusing. Some have opined that ambiguity was the intent to chill and speech which suggests the existence of systemic racism. While efforts are currently underway to challenge this language in the courts, this bill will at least partially achieve its objective in the short term through changes in school curriculum. We will need to stay tuned to this language as the implementation moves forward.
The final piece mentioned above is the 24-week abortion ban. This amendment prohibits and abortion if the “…probable gestational age of the fetus is at least 24 weeks…” and requires an ultrasound to be conducted during the process of determining gestational age. The language also subjects the physician to potential criminal penalties and provides civil relief to “…fathers and maternal grandparents…” “…unless the pregnancy resulted from the plaintiff’s criminal actions…” . There is a health exception for the life and health of the mother but omits reference to rape or incest.
Beyond HB2, HB1 is fairly consistent with past Republican written State Budgets. There are numerous tax cuts (Interest and Dividends, Business Taxes), a small amount of additional revenue to cities and towns (30% Rooms and Meals Taxes) and additions to the Rainy Day Fund. The fund is estimated to increase by about 38% between FY20 and the end of the biennium ($115M to $158.5M). There is about a $100M decrease in Statewide Property Tax (SWEPT) which is primarily a reduction in the amount “wealthy” towns need to raise for education. There is a limited impact on schools across the state since SWEPT raised by “wealthy” or “donor” towns keep the money in their own community but need to spend the money on schools. This change will reduce the amount these towns need to spend on schools.
Two additional bills that are not part of the budget, SB133 and HB143. SB133 affects psychologist licensure and HB143 affects social work licensure. These bills were approved by the House and Senate and are now moving onto the Governor. There is no indication at this time that the Governor will veto either bill.