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How Abortion Access Will Change In N.H. If Lawmakers Pass Restrictions

photo of man holding sign saying 'vote no on budget'
Todd Bookman/NHPR
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A $13.5 billion budget bill slated for a vote in the New Hampshire House and Senate on Thursday contains a new package of restrictions on abortions in New Hampshire. Republicans added the measure, known as the Fetal Life Protection Act, to the spending plan, and Gov. Chris Sununu has said he supports elements of the act, and will sign the budget bill should it reach his desk. 

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What’s in the Fetal Life Protection Act?

The proposal would prohibit abortions at or after 24 weeks gestation, except in cases of “medical emergency.” Currently, New Hampshire is one of seven states that has no gestational limit on abortion procedures. Though no statewide data is publicly available, providers say abortions after 24 weeks are exceedingly rare, and are only performed when a severe fetal abnormality is detected late in pregnancy.

The measure defines medical emergency as a “condition in which an abortion is necessary to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function.”

The bill makes no exception for rape or incest, or for fetal viability. The bill would permit medical providers to remove a fetus that has died.

The act also includes criminal and civil penalties for health care providers who provide abortions after 24 weeks gestation. Under the provision, providers would face a Class B felony, which carries a three-and-a-half to seven-year prison sentence, along with fines of $10,000 to $100,000.

The patient as well as the “father of the fetus,” if married, would also be permitted to sue for monetary damages if an abortion is performed after 24 weeks gestation. (The bill’s language does not clarify who may be sued, or if a woman partner would also have legal rights.) 

What about ultrasounds?

Under the bill, all people seeking an abortion procedure would be required to have an ultrasound, making New Hampshire the 28th state in the nation and the first in the northeast to mandate the imaging procedure, according to the Guttmacher Institute. 

The measure would not require the patient to view the ultrasound, as is required in a handful of states. 

But medical providers that perform abortions in the state say ultrasounds are already routine for most abortions. At Lovering Health Center in Greenland, clinicians perform ultrasounds to determine the gestational age of the fetus, which helps determine if a medication or surgical abortion is recommended, and to rule out ectopic or other irregular pregnancies.

“Ultimately, it is also to make sure our patients are safe and that they are in a safe place to have an abortion,” Illysa Sherman, a sexual and reproductive health nurse at Lovering, said.

Despite their prevalence, Sherman and other providers who perform abortions in New Hampshire say an ultrasound mandate is unnecessary and a “slippery slope” toward additional limits on abortion rights.

“I do fully believe as a nurse that any health care decision is between a provider and a patient,” Sherman said. ”We can’t have laws that are dictating something that isn't based in evidence and science. There could be situations where an ultrasound may not be necessary, and to have any restriction in place, that again isn’t evidence-based, is just ultimately going to be harmful.”

Planned Parenthood of Northern New England (PPNNE), which also opposes the measure, says that an ultrasound mandate would force some patients to schedule an additional appointment before they could have an abortion.

If the measure were to become law, Kayla Montgomery, spokesperson for PPNNE, said patients may need to schedule an appointment specifically for an ultrasound, which may lead to new costs. “This mandate will disproportionately impact lower income patients who already face the most barriers to accessing health care,” she said.

How often, and under what circumstances, are abortions currently performed after 24 weeks in New Hampshire?

Planned Parenthood and Lovering Health Center say they currently do not perform abortion procedures on patients this late in pregnancy. 

Based on interviews, the only facility in the state that appears to perform abortions at or after 24 weeks is Dartmouth Hitchcock Medical Center (DHMC) in Lebanon. “This is an exceedingly rare, rare event,” Dr. Ilana Cass, Chair of Obstetrics and Gynecology at DHMC said.

Cass told NHPR the only circumstances under which DHMC performs abortions at or after 24 weeks is when a severe fetal abnormality is detected.

“The anomaly would prevent the fetus from living outside of the uterus, and this is sometimes only recognized fairly later on in the pregnancy,” said Cass.

Under the act, Cass said “a woman and her partner who discover that the pregnancy that they are carrying has a catastrophic abnormality that would not allow that fetus to have a normal life would be unable to actually terminate that pregnancy.”

What type of data would be collected under this proposed law?

Under the bill, medical providers would need to file a report to the New Hampshire Department of Health and Human Services each time an abortion is performed after 24 weeks due to a medical emergency.

The bill does not clarify what information is required in the report, including whether the name of the patient would need to be included. 

Currently, no other data is collected and reported on abortions performed in New Hampshire.

In 2012, researchers did publish statistics detailing how a 2011 law requiring parental notification—the last major abortion law passed in New Hampshire—impacted abortions by minors at Planned Parenthood clinics in New Hampshire. 

What impact would the proposed criminal penalties have on medical providers?

Dr. Cass at Dartmouth Hitchcock cautioned that instituting criminal penalties “disincentivizes” medical providers to work in the state.

“It makes them fearful of the kind of care they want to be able to provide their patients, and not surprisingly, makes it very difficult for me to recruit physicians to the state of New Hampshire who are qualified and well-trained, and want to care for these women,” she said.

What do supporters of the restrictions say? 

Republican Sen. Regina Birdsell helped craft the bill’s language, but a spokesperson said Birdsell was unavailable for comment.

Senate Majority Leader Jeb Bradley, Republican of Wolfeboro, said the proposal represents the will of majorities in the House and Senate, but declined to answer questions about the ultrasound provision.

During a floor debate, Republican Sen. Bob Guida told colleagues the 24 week cut-off for abortion procedures represented a “compromise.” 

“At what point do we decide it’s okay to kill a sentient, feeling, living human being? Is it 24 weeks? Is it 28 weeks? Is it as the child is crowning in the delivery room? This is an attempt, using science, to allow the definition by law of when life begins,” he said.

In an interview with NHPR, Republican Rep. Jess Edwards of Auburn said the ultrasound provision is intended to “require that the visual information be available to the women that want to have a better informed decision.” 

Edwards told NHPR that the 24-week ban would provide women with enough time to interpret diagnostic and other medical tests performed on the fetus, and still choose to have an abortion, should they wish.  

He added that if the measure becomes law, there would be no prohibition on patients traveling across state lines to have an abortion after 24 weeks.

“It’s not like there are no options,” Edwards said.

Gov. Chris Sununu has tried to walk a fine line on the measures. He has said he continues to be supportive of abortion rights, and that he didn’t propose the restrictions. However, Sununu said he supports the 24-week ban, and will not veto the budget over abortion restrictions.

“I might not love all the details of that provision, but again, a bigger picture, there’s a lot of really positive things for the citizens of New Hampshire with that budget,” Sununu told reporters.

What do opponents of the restrictions say?

Medical clinics that perform abortions are criticizing the measure as unnecessary and call it a government intrusion into the provider-patient relationship.

“Politicians shouldn’t be substituting their judgement for medical professionals’ expertise,” said Kayla Montgomery with PPNNE. “Planned Parenthood trusts doctors, who should have the flexibility to determine what procedures are necessary — rather than lawmakers.”

Other providers see the act’s provisions as just a starting point for additional abortion restrictions. 

“This is an attack on people everywhere that are carrying pregnancies that may not want to choose to carry that pregnancy,” Illysa Sherman with Lovering Health Center said. “And at the end of the day, this is going to result in more and more bans. This is how it starts.” 

What happens next?

The House and Senate will meet Thursday to vote on the budget, known as HB 1, as well as the budget ‘trailer bill’ HB 2, which includes the Fetal Life Protection Act. If the measures clear both chambers, they would then head to the governor’s desk.

If Sununu signs the budget into law, as he’s said he will, the abortion provisions would go into effect Jan. 1, 2022.

Should the bill become law, abortion-rights supporters could challenge its provisions in court.

(Clarification: Rep. Jess Edwards told NHPR that while he supports the 24 week abortion ban and the mandatory ultrasound requirement, he said he is not opposed to abortion rights. This story has been updated to reflect that. Also, this story has been updated to more clearly reflect Planned Parenthood's policy on appointments for ultrasounds.) 

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