CONCORD, N.H. — With the Legislature set to return to the State House in January, abortion is one issue that will continue to take center stage.
After a Republican proposal to create a ban on abortions 15 days after gestation that made national headlines, Democratic lawmakers countered with a plan to create an affirmative right to abortion in the state constitution.
The debate over abortion follows significant federal court rulings last year, such as the Dobbs decision that overturned Roe v. Wade, which had provided a constitutional right to abortion for the past 50 years.
That means critical decisions about reproductive rights and abortion now lie with state lawmakers.
“Most of this legislation coming out is in response to federal court rulings,” said Anna Brown, executive director of Citizens Count, a nonpartisan nonprofit that tracks legislation in New Hampshire. “The Dobbs ruling is the reason we’re now having this argument of do we need an affirmative right to abortion as well.”
With a deeply divided New Hampshire House, Brown said it’s unlikely that any further restrictions will pass. There are 198 Republicans, 195 Democrats, three Independents, and four vacancies, according to the latest House roster. The Senate is more strongly controlled by Republicans who have a 14 to 10 majority.
“I really think that the debate is going to be on do we add some sort of protections prior to 24 weeks and also possibly related to medication abortion,” said Brown.
There’s also a legal fight underway over mifepristone, a medication used as one part of a two-pill regimen to induce an abortion at up to 10 weeks gestation. In December, the U.S. Supreme Court decided it would take up the case, which has the potential to roll back access to the drug around the country, even in states with legal protections for abortion. Reproductive rights advocates anticipate oral arguments in the spring with a decision possibly coming over the summer in June.
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Democrats and reproductive rights advocates made a big announcement of CACR 23 in December, indicating it’s a priority. It would add an affirmative right to abortion into New Hampshire’s constitution up to 24 weeks, and it would also allow a doctor to decide if an abortion is needed after that point. There’s a higher threshold for passing a constitutional amendment than a regular bill, since it requires a three-fifths vote in both chambers before it would be put to voters during the election in November.
Two Republicans signed on to support the effort as co-sponsors, although at least one member of Republican House leadership has already opposed the effort.
“I am much less concerned about no-chance legislation supported by only a few fringe members, than I am about the unanimous Democrat caucus support of taxpayer-funded elective abortions up to the moment of birth and beyond,” said Representative Jason Osborne, an Auburn Republican, and the House majority leader, in a statement after Democrats announced the proposal, the Keene Sentinel reported.
Abortions are currently legal up until 24 weeks, with exceptions for the health of the mother and if the fetus receives a fatal diagnosis. Doctors can face penalties and possible jail time for performing an abortion after 24 weeks that doesn’t fall into those categories.
The 15-day abortion ban (House Bill 1248-FN) is widely considered unlikely to pass.
Governor Chris Sununu called it “crazy” and it lost one of its four co-sponsors within days of being publicly announced. Representative Kristine Perez, a Londonderry Republican, apologized and said she thought it would be a 15-week ban and that she hadn’t reviewed the legislation before signing on in support of it.
House Bill 1541 places additional restrictions on abortions that occur after 15 weeks gestation. It requires any abortion after 15 weeks take place in a hospital that has an intensive care unit and with a second physician present. The second physician would be required “to make all reasonable attempts to preserve the life of the unborn child,” who the bill specifies “shall be considered a person.” It allows for criminal prosecution if those requirements aren’t followed.
“This is an abortion bill that is more to protect the baby, but also to protect the women too, and not just be a free for all,” said Representative John Sellers, a Bristol Republican, who is sponsoring both House Bill 1541 and the 15-day ban. “I’ve read in articles about 45 to 50 percent of women get abortions because they’ve learned they got pregnant and they didn’t use any birth control.”
Sellers said the state needs to decide through legislation when life begins, in order to put protections in place. Personally, he said, he believes life begins at conception and disagrees with Democratic efforts to “allow abortion up until birth.”
Liz Canada, advocacy director of Planned Parenthood New Hampshire Action Fund at Planned Parenthood, said the effort amounts to a 15-week ban because the restrictions could make abortion inaccessible in some cases.
“They’re trying to take two swings at banning abortion in New Hampshire this year,” said Canada, noting that Planned Parenthood wants to see both bills defeated.
Senate Bill 575 seeks to add legal protections around reproductive health care, like preventing the state from cooperating with an investigation into a person who had violated another state’s abortion law. An example could be someone who traveled to New Hampshire for an abortion after it was too late to seek one in their home state. This proposal would also block the extradition of a person who had done that, if their home state requested it.
And Senate Bill 567 deals with protecting and expanding medication abortion. It directs the Department of Health and Human Services to expand access to drugs like mifepristone and report back to the legislature on how this can be accomplished and any barriers to doing so.