CONCORD, N.H. — Lawmakers in the New Hampshire House will hold a public hearing Wednesday on a proposal that sparked contentious debate in the Senate over whether health care providers should be required to report certain abortion data to the state.
Republican senators approved a version of Senate Bill 461 that would require providers to report the date and place of each abortion they perform, the pregnant patient’s age and state of residence, the abortion method used, any prescriptions written to induce abortion, and the gestational age of the aborted fetus.
The commissioner of the New Hampshire Department of Health and Human Services would use the data to prepare reports and statistics about maternal health, abortion procedures, and gestational age, according to the bill.
Republican Senator Sharon Carson of Londonderry said stakeholders always talk about the need for lawmakers to make data-informed decisions, yet New Hampshire is among just four states that don’t already require abortion data reporting.
“Without knowing how many abortions are performed each year or what week the abortion was performed, neither side can logically argue for their positions without the data to back it up,” Carson said during debate on the Senate floor on April 11, adding that opposition to the bill suggests there may be “something to hide.”
Democrats had initially introduced a simpler version of SB 461 to repeal the one line from New Hampshire’s current abortion law that says it doesn’t provide for an affirmative right to abortion. Republican senators added the data reporting requirement to the bill and said their amendment would be an opportunity for bipartisan compromise. Democrats balked, saying the GOP proposal took insufficient care to protect sensitive information at a time when abortion rights and restrictions are in flux nationwide.
Although the bill would not require the disclosure of personally identifiable health information, its Democratic critics noted that it would not expressly prohibit such disclosure either — a point of potential concern, since some states with restrictive abortion policies have pursued prosecutions related to the increasing number of patients who cross state lines to receive abortion care. (Earlier this year, the New Hampshire Senate killed a separate bill that would have prohibited police from helping out-of-state authorities investigate “legally protected health care activity.”)
Democratic Senator Becky Whitley of Hopkinton, who is running for Congress, asserted during the April 11 debate that SB 461 would effectively require an invasive ultrasound before every abortion, even when medically unnecessary.
“In order to adhere to this reporting requirement in this amendment, providers will have to provide ultrasounds for all abortions in New Hampshire, every single one,” she said.
“This legislation would mean that whether you need an early abortion at seven or eight weeks gestation or an abortion much later in pregnancy for a medically urgent reason, you will now be required to get a government-required ultrasound under the policy put forth in this amendment,” she added.
Her GOP colleagues criticized her comments as inaccurate, noting that the bill does not mention ultrasounds.
“This is just more misinformation to scare women in the State of New Hampshire,” Carson said, “and I think that needs to stop.”
“There is no requirement for any kind of testing here, no ultrasound, no nothing,” she added.
When asked by the Boston Globe about the basis for her claims, Whitley took a half-step back. Rather than repeat her assertion that SB 461 would effectively require ultrasounds for every abortion, she said it could have that effect due to its ambiguity.
Whitley, an attorney, said “we have no idea” how the DHHS commissioner or health care providers will interpret SB 461 because there was no public hearing in the Senate on the amended version.
“Due to this lack of clarity,” she said, “this could mean that to meet the standard of the law and adhere to this reporting requirement, providers may need to perform additional tests, including transvaginal ultrasounds.”
Her contention hinges on the provision of SB 461 that would require providers to report the gestational age of each aborted fetus. Since the bill does not say an estimated gestational age would suffice, authorities or providers might conclude ultrasounds are needed to determine the gestational age definitively, she said.
Back in 2021, when lawmakers first adopted New Hampshire’s Fetal Life Protection Act, which restricts abortions after 24 weeks of pregnancy, they included a provision to require an ultrasound before every abortion. But they repealed that provision in 2022 and left a narrower requirement in its place.
Under current law, abortion providers must determine the “probable gestational age” using all tests and examinations that “a reasonably prudent health care provider” would need to use, unless there is a medical emergency. However, the law also says an ultrasound is required “only if” the provider knows or has reason to suspect a fetus has reached 24 weeks of gestation.
In other words, the law currently allows providers to determine “probable gestational age” without an ultrasound early in pregnancy — when the overwhelming majority of abortions occur — and nothing in SB 461 would change that.
Dr. Nisha Verma, a fellow of the American College of Obstetricians and Gynecologists, said information about a patient’s last menstrual period is traditionally used to estimate the gestational age of a fetus. That method is effective, she said, for patients with regular periods.
When a physician needs to confirm the estimated gestational age, a first-trimester ultrasound is “the best next step,” Verma said.
“In an increasingly hostile legislative environment for reproductive health care clinicians, I can understand that some clinicians or institutions would be more comfortable using an ultrasound measurement to confirm gestational age in order to comply with state requirements,” she added.
Some states that require providers to report the gestational age of an aborted fetus, including neighboring Maine and Massachusetts, don’t specify in statute whether an estimate will suffice — so New Hampshire wouldn’t be the first state to deal with some degree of ambiguity on this issue.
Rachel K. Jones, a research scientist with the Guttmacher Institute, which supports abortion rights, said she saw “nothing particularly intrusive” about the categories of information that New Hampshire’s SB 461 proposes to gather, though she said further scrutiny would be appropriate.
“Data collection about abortion from public health departments can serve some public health uses,” she said. “But it’s always important to examine it in regards to the context in which it’s being collected and the motivation for collecting it.”
Jones said her team contacts abortion providers directly and collects aggregate data on a voluntary basis. Especially after the US Supreme Court’s 2022 decision overturning the constitutional right to abortion, researchers are exercising caution to avoid collecting extraneous information, she said.
“In the current environment, any attempt to force people to provide information about abortion care raises red flags,” Jones said. “Again, the question is, what is the motivation behind it?”
A hearing on SB 461 before the House Health, Human Services and Elderly Affairs Committee is scheduled for Wednesday at 1 p.m. in the Legislative Office Building in Concord.
Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.