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Legislative effort to amend N.H. abortion ban continues with key House vote

Dan Tuohy
Last summer, lawmakers voted, with the approval of Gov. Chris Sununu, to ban abortions after 24 weeks and to mandate an ultrasound be performed before any abortion in the state.

House lawmakers will vote Thursday on the latest bill (HB 1609) aimed at changing the state’s new abortion law, which took effect in January. It’s currently the only bill with language that would add any exceptions to the current ban on abortions after 24 weeks. Other related bills have failed to move forward with any exceptions.

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Even if House Bill 1609 passes the House, it has an uncertain path to becoming law. It will head to the Republican-majority Senate, where lawmakers have already shown skepticism toward significant revisions of the abortion ban.

If New Hampshire lawmakers are unable to come to an agreement and send a version of this bill to Sununu’s desk, current law will stand.

Last summer, lawmakers voted, with the approval of Gov. Chris Sununu, to ban abortions after 24 weeks and to mandate an ultrasound be performed before any abortion in the state. The only exception in the 24-week ban is in the case of a medical emergency that threatens the life of the pregnant person.

The law, which was included as a part of the state budget, also imposes criminal penalties for providers who violate the 24-week ban. Shortly after signing the budget, Sununu backed efforts to amend the law.

Bills to fully repeal it were quickly batted down in House and Senate committees earlier this year. Lawmakers in both parties have supported changing the ultrasound requirement, to only mandate an ultrasound if the doctor thought the fetus might be near 24 weeks, rather than before every abortion. But they’ve found it difficult to coalesce around other exceptions to the law, including those related to fatal fetal anomalies, rape and incest.

Abortion in New Hampshire now

Nationally, fewer than one percent of abortions take place after the 24th week of pregnancy, according to 2019 CDC data. 

Even prior to the passage of the New Hampshire law, Dartmouth Hitchcock Health, which providers say performs the latest abortions in the state, never did so later than 23 weeks. The rare patients needing abortions later that 23 weeks in pregnancy were sent out of state for care.

As a result, the 24-week ban does not significantly alter the medical landscape for abortions in New Hampshire. If an exception where made for fatal fetal anomalies after 24 weeks, a person seeking that type of abortion would likely still need out of state care.

Still, the law has shifted the political landscape in the state. Lawmakers, rather than medical professionals, are now deciding how late an abortion will be performed in New Hampshire.

Abortion rights advocates worry the lack of political will to repeal the law or add exceptions lays the groundwork for more restrictive laws with more practical impacts, including a more restrictive abortion ban.

Windham Rep. Bob Lynn, a self-described pro-choice Republican, said he sees the need for the state to set some late-term limits on abortion, and said he’d be open to changing the timeframe of those limits.

“If somebody said, ‘Well maybe it should be 22 weeks or maybe it should be 26 weeks,’ you know, I guess I would be open to that.” Lynn said. “It would depend on what science said,”

In the backdrop of the New Hampshire abortion debate is a national conversation about the future of Roe v. Wade, which could be struck down this year by the U.S. Supreme Court. Earlier this year, the Executive Council also voted to withhold funding for health centers that not only provide abortions but other reproductive care and health services.

“Edge cases” of fatal fetal anomalies convinced a key House Republican to support that exception

Earlier this year, Sununu expressed support for the original version of House Bill 1609, which included exceptions in cases like rape, incest, and fatal fetal anomalies, as well as clarifying the ultrasound requirement, to be legally required only in cases where a doctor believes the fetus to be 24 weeks old.

But the strategy of a quick edit to the law has proved a tough sell among Republican lawmakers, and the latest amendments of House Bill 1609 includes only exceptions for fatal fetal anomaly and a clarification of ultrasound requirement.

Republican Rep. Jess Edwards, chair of the House Finance Committee, brought forward that amendment at a committee meeting last week. Edwards does not support the original, broader version of the bill which included exceptions for rape and incest.

Edwards said he’s been swayed by the necessity of only an amendment for fatal fetal anomalies for what he calls “edge” cases, or examples of pregnant people learning late in pregnancy of a fatal fetal anomaly.

In an interview with NHPR, Edwards pointed to one specific example, of a woman pregnant with twins, where an abortion procedure of a twin with a fatal fetal anomaly had the potential to improve the chances of survival of the healthy baby.

Edwards could not recall the woman's name, but Lisa Akey of Brookline, a woman with this exact pregnancy, confirmed she wrote a letter to Edwards about her story.

While Akey did not ultimately move forward with an abortion because it carried its own risks, her story seems to have highlighted for Edwards the need for the procedure in rare circumstances.

For Akey, watching the House Finance Committee debate an amendment that feels so personal has been complicated.

She’s wondering why the committee charged with looking at the financial piece of the bill has focused so heavily on amending the bill’s policy. And she said hearing lawmakers use language like “deals'' and “agreements'' related to a medical issue that directly affects her was tough.

“My body and my health care and the lives of my unborn children are part of a budget deal? That was really hard to hear,” she said, “ I understand that politics is about deal-making, but that was upsetting.”

How New Hampshire’s abortion law compares to nearby states 

The vast majority of states put some restrictions on how late in pregnancy a person can get an abortion.

Sununu has repeatedly compared New Hampshire’s new restrictions to those in neighboring Massachusetts, which also bans abortions after 24 weeks. There are a few differences.

Massachusetts allows for exceptions for fatal fetal anomalies and for the physical and mental health of the pregnant person. New Hampshire law currently only allows for an abortion after 24 weeks in a medical emergency that endangers the life of the pregnant person.

Maine bans all abortions after viability, which is around 24 weeks, except to protect the life or health of the mother. A doctor who breaks the law can also be held criminally liable.

Like in Maine, Connecticut prohibits abortion under the law after the fetus is viable “except to preserve the woman’s life or health.”

Maine, Massachusetts and Connecticut have laws affirming the right to an abortion for pregnant people before the fetus is viable.

At least 15 states currently have similar laws protecting the right to abortion, according to the Guttmacher Institute, a research organization advocating for reproductive rights. But a New Hampshire push failed to move forward in the New Hampshire House earlier this month.

Vermont has no restrictions on abortions and a proposed constitutional amendment protecting the "personal reproductive liberty" of all Vermonters was approved by the Vermont House earlier this year. The adoption of the measure will be decided upon by voters in a statewide referendum in the fall.

Bills introduced this legislative session to amend the current abortion law, and where they stand now

House Bill 1609

  • This Republican-sponsored bill originally set out to add exceptions to the 24-week ban for rape, incest, the health of the pregnant person, and fatal fetal anomalies. It also sought to clarify the ultrasound requirement.
  • The bill passed the House 179-174 last month. But because it has financial implications for the state, it was sent to the House Finance Committee. Part of the potential cost would be a new requirement to collect statistics and produce an annual report related to pregnancy termination.  
  • The bill now returns to the full House for another vote. As amended by the Finance Committee, it no longer includes the exceptions for rape and incest, only for fatal fetal anomalies, as well as an ultrasound clarification

House Bill 1673 

  • This Democrat-sponsored bill set out to repeal the 2021 ban completely. After the full House voted on the bill earlier this month, only a clarification of the ultrasound mandate is moving forward. 
  • House lawmakers voted down the amendment that would have made exceptions for fatal fetal anomalies and the health of the pregnant person, and would have removed criminal penalties for doctors who perform abortions outlawed in the ban.
  • The bill is now in the Senate, where it has been sent to the Judiciary Committee

Senate Bill 399 

  • Like House Bill 1673, this Democrat-sponsored bill originally set out to repeal the 2021 law completely.
  • Also like House Bill 1673, the version moving forward only clarifies the ultrasound requirement and includes no exceptions for rape, incest, fatal fetal anomalies, or the health of the pregnant person 
  • The bill is now in the House, where it has been sent to the Judiciary Committee.
  • A public hearing on the bill will take place on April 13th at 9:00 am 

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