The Risk of Rushing Through Legislation

New Hampshire Republicans almost legally authorized pregnant women to commit murder last week, providing a cautionary tale for their colleagues in Congress.

Senate Majority Leader Mitch McConnell (Kevin Lamarque / Reuters)

After weeks of secret drafting and backroom negotiations, Majority Leader Mitch McConnell unveiled Senate Republicans’ health-care bill on Thursday to a cold reception. If it becomes law, the 142-page bill will overhaul one-sixth of the U.S. economy and change how many Americans make life-and-death decisions. Senators will have little time to digest its full impact: McConnell says he wants a vote on the bill next week.

An unusual legislative blunder by his fellow Republicans in the New Hampshire state legislature earlier this month might serve as a cautionary tale for such excessive haste—especially when crafting and voting on one of the most far-reaching pieces of domestic legislation in a generation.

New Hampshire Republicans rushed last week to urge Governor John Sununu to sign a fetal-homicide bill called Senate Bill 66. Lawmakers in the state House of Representatives had hastily revived and passed the bill at the beginning of June before sending it to Sununu’s desk. (The state Senate approved it in February.) Like similar legislation in two dozen other states, the bill would amend the state’s definition of manslaughter and murder to include “viable” fetuses. The expanded definition would allow prosecutors to bring harsher charges against defendants who injure or attack pregnant women and cause them to miscarry.

To avoid clashing with Supreme Court rulings on abortion rights, the bill included an exception for pregnant women and medical professionals. But the phrasing of the legislation had unintended consequences. Under its original wording, pregnant women and medical professionals would be entirely exempt from the state’s homicide statutes, effectively giving them legal cover to commit murder with impunity.

“The bill as drafted allows for physician-assisted suicide and allows a pregnant woman to commit homicide without consequences,” State Representative J.R. Hoell told the Concord Monitor, adding that such an outcome was “never the intent” of the bill’s drafters.

Legislators noticed the error before the bill could be signed into law and quickly drafted an amendment. The state legislature approved the revised version on Thursday. By noticing the change in time, Republican lawmakers saved New Hampshire’s residents from the potential threat of pregnant women roaming the state with de facto licenses to kill.

The Senate health-care bill also deals in life-and-death matters, and one need look no further than the law it seeks to dismantle to find examples of how dangerous drafting errors can be. Opponents of the Affordable Care Act, more commonly known as Obamacare, nearly collapsed the law during Barack Obama’s second term by seizing on a drafting error at the heart of the vast, complex legislation.

A central feature of the ACA was the creation of state and federal health-care exchanges where patients could buy health insurance. To prop up those exchanges, the ACA also provided tax credits to Americans who bought plans through them. But a small problem arose. The language of the statute itself specified that the credits were available to plans bought from an “exchange established by the State.”

In the case King v. Burwell, a group of plaintiffs challenged the law in federal court by arguing that the key provision meant the subsidies applied only to the state exchanges and not to the federal one, which covered almost three dozen states. If they had prevailed, the hole in subsidies would have pushed the American health-insurance industry into a “death spiral.” Most observers agreed Congress meant to extend the tax credits to plans bought from both the federal and state exchanges, but the plaintiffs, who were supported by conservative groups opposed to the ACA in its entirety, argued the law must be followed to the letter.

The Supreme Court ultimately disagreed and sided with the Obama administration to interpret the law as applying to both federal and state exchanges. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John Roberts wrote for a 6-3 majority. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Others disagreed. “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government,’” Justice Antonin Scalia wrote in dissent, joined by Clarence Thomas and Samuel Alito. “That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” To underscore his frustration with the Court’s refusal to strike down the law on multiple occasions, he quipped that people “should start calling this law SCOTUScare.”

The Senate health-care proposal isn’t as vast or complicated as the ACA, reducing the likelihood of major errors like the one that threatened Obamacare’s survival two years ago. But the extreme haste and unprecedented secrecy that went into so consequential a bill raises the chances that unintended consequences could spring from it.