How NH lawmakers are weighing changes to the state's abortion laws post-Roe
In the first legislative session since the U.S. Supreme Court overturned Roe v. Wade, New Hampshire lawmakers are weighing more than a half-dozen proposals to either protect or limit abortion access.
But with the House narrowly divided along party lines, it's not clear what if any changes could end up becoming law.
The court’s decision last June ended decades of federal protections for abortion rights. Total or near-total abortion bans have taken effect in more than a dozen states since. Clinics in New England, where abortion remains relatively accessible, are reporting an increase in patients from out of state.
Under a law that took effect last year, abortion is currently legal in New Hampshire before 24 weeks, with exceptions after for medical emergencies and fatal fetal diagnoses. But with federal protections gone, some abortion-rights advocates are pushing to explicitly protect access under state law.
“Our priority is to make sure that, now that Roe v. Wade has been overturned, that we are working as a state to protect access to abortion,” said Liz Canada, the advocacy manager for Planned Parenthood New Hampshire Action Fund. “We do not want to see any further restrictions.”
One bill proposed this session would ban nearly all abortions after about six weeks, before many people know they’re pregnant. Another bill would require abortion providers to offer patients certain information — including about alternatives to abortion — and impose a 24-hour waiting period.
Advocates on both sides say sweeping restrictions, like a near-total ban early in pregnancy, are unlikely to pass anytime soon. House Majority Leader Jason Osborne, who leads the Republican caucus in the closely divided House, told NHPR last year he would “fight” efforts to restrict abortions before 24 weeks, and Republican Gov. Chris Sununu has said he would not allow any such restrictions to become law.
Sununu, who signed the 24-week ban as part of the state budget two years ago, has also said he would support codifying protections for abortion rights before that point.
But abortion-rights advocates are bracing for what they worry will be attempts to chip away at access more gradually, by steadily eroding protections and placing new burdens on patients and providers.
Abortion opponents say their biggest focus right now is defeating efforts to weaken or repeal the existing 24-week ban. At a recent news conference, they attacked those efforts as “extreme” attempts to remove protections for fetuses later in pregnancy.
“I really want you to ask yourself, who deserves protections in the state?” said Jason Hennessey, the president of New Hampshire Right to Life. “And these babies are the most innocent among us.”
Possible changes to 24-week ban
Supporters have described New Hampshire’s relatively new abortion restrictions, formally known as the Fetal Life Protection Act, as a reasonable effort to limit abortions later in pregnancy, around the time a fetus becomes viable outside the womb. They note that most states restrict abortion at 24 weeks or earlier, as this measure does.
But the law has been controversial. Democrats and abortion-rights advocates say it’s an unwarranted intrusion into decisions best left to doctors and patients, in the rare but difficult situations that lead people to seek abortion later in pregnancy.
They’ve been especially critical of the bill’s civil and criminal penalties for providers, saying the threat of felony charges could cause physicians to delay care until a patient’s health deteriorates. Many medical providers have also spoken out against the measure.
This year, lawmakers have put forward a bipartisan bill to remove those penalties.
The lead sponsor, Republican State Rep. Dan Wolf of Newbury, said at a hearing Wednesday that he supports the 24-week ban, but doctors shouldn’t face criminal prosecution for medical judgments.
“These are charges which no other medical procedure inflicts on a doctor,” he said. “A doctor acting in good faith and following the Hippocratic oath would constantly be second-guessing his- or herself.”
Sununu has previously said he would be open to removing the penalties from it.
Anti-abortion advocates say taking those penalties out would make the ban unenforceable. They’re pushing back against Wolf’s bill and a separate, Democratic-sponsored bill that would repeal the 24-week ban altogether.
“We certainly hope that pro-abortion legislators who voted to amend or gut the Fetal Life Protection Act last session will reconsider their decision, and protect women and their unborn children this time around,” Rep. Katy Peternel, a Republican from Wolfeboro, said at a news conference last week.
Codifying abortion protections in state law
Some abortion-rights advocates are also concerned about the lack of explicit protections for abortion rights in state law. They say that leaves the door open for future attempts to undermine abortion access.
“I remember when we fought for this stuff the first time around, and I knew people who had back alley abortions and then could never have children,” Nancy Brennan, an activist with the progressive Kent Street Coalition, told NHPR at the State House Wednesday, before a day of hearings on bills that would protect access to abortion. “And I just say, we cannot go back.”
Democrats in the House and Senate have proposed bills that would affirmatively protect the right to an abortion before 24 weeks. While the proposals wouldn’t change any existing restrictions, the bills’ sponsors said they would safeguard against further attempts to limit abortion access.
At hearings, some GOP lawmakers questioned whether those bills are necessary, as abortion is already legal. They also noted a future legislature could repeal those protections.
Democrats have also proposed a constitutional amendment that would protect the right to make reproductive decisions. If it clears the Legislature, the proposed amendment would go before New Hampshire voters. Voters in Vermont added a similar amendment to their constitution last year.
A recent hearing on the measure drew personal testimony from legislators on both sides.
“I first became a mother when I was still a teenager,” said Republican Rep. Jeanine Notter of Merrimack, who spoke in opposition.. “And that baby was a baby the day before he was born, three months before he was born, and he was a miracle of life from the moment of conception.”
The measure’s lead sponsor, Democratic Rep. Amanda Elizabeth Toll of Keene, said her own abortion, as a teenager, allowed her to live the life she wanted.
“Because I was able to have children when I was ready, and not before that, I’ve been able to become a state representative who’s advocating for public policy based in compassion and justice,” she said.
Some Republican representatives are also proposing new limits on abortion. The most restrictive would ban nearly all abortions after the detection of cardiac activity — usually around six weeks, before many people know they’re pregnant. The bill has exceptions for medical emergencies, but not rape or incest.
Advocates on both sides of the issue don’t really expect that bill to go anywhere.
“We can expect to get somewhere in the neighborhood of 100 votes, maybe 120, for the six-week bill, the heartbeat bill” in the 400-member House, said Kurt Wuelper, vice president of New Hampshire Right to Life and a former state representative. “That's because the public isn't ready for this.”
One pending bill would impose a 24-hour waiting period for those seeking abortions and require medical providers to give patients with certain information before the procedure.
The bill’s Republican sponsors described it as an effort to ensure people are giving informed consent before deciding to have an abortion.
“It’s very comprehensive, to make sure the woman that is getting the abortion is very clear where she’s at and what’s going on and what’s gonna happen in her abortion,” said Rep. John Sellers, a Bristol Republican and one of the co-sponsors, during a hearing Thursday.
In addition to information about potential health risks, providers would be required to tell patients about resources that would be available if they carried their pregnancies to term and their right to view an ultrasound image of the fetus or materials listing alternatives to abortion. As written, the bill would also require providers to relay claims about reversing medication abortion that the American College of Obstetrics and Gynecology says are not backed by science.
That bill would also direct the New Hampshire Department of Health and Human Services to create and publish images of embryos and fetuses at different stages of development, and lists of adoption agencies and other resources.
Testifying in opposition, abortion providers said they already have extensive conversations with patients to inform them of their options. They argued the bill goes well beyond informed consent, calling it an attempt to perpetuate misinformation and shame people who choose to get abortions.
“I find it stigmatizing to imply that a patient is not informed when they come to our office, unless they receive information that reflects information designed to reverse their decision,” said Sandra Denoncour, executive director of Lovering Health Center in Greenland.
Josie Pinto, the executive director of the Reproductive Freedom Fund of New Hampshire, which provides financial support to people seeking abortions, said she’s most worried about this kind of legislation passing — and slowly making abortion harder to access in New Hampshire.
Adding a waiting period, she said, would create even more barriers for patients who already struggle to arrange child care, time off work or transportation to a clinic.
“That would directly result in a lot of people not getting wanted abortions, just because the logistical barriers are too heavy,” she said.