Capital Beat: The abortion fight comes to Concord 

  • Over nearly three hours on Wednesday, more than 50 speakers took two minutes each to give speeches about a proposed amendment to the state constitution. ETHAN DeWITT / Monitor staff

Monitor staff
Published: 1/25/2020 8:05:23 PM

The seats of Representatives Hall were crammed with advocates Wednesday. Hundreds clamored before the House Judiciary Committee to speak against a proposed constitutional amendment that would create a right to abortion and reproductive care.

Not present at the hearing? Significant numbers of abortion rights supporters.

Planned Parenthood of Northern New England has not thrown its support behind the proposed constitutional amendment, a spokeswoman said. And of the more than 50 people who spoke at the hearing, fewer than 10 of them were abortion rights advocates, according to committee chairwoman Marjorie Smith.

Instead, in a state that is among the least restrictive on abortion, advocates for reproductive rights are largely playing defense this year. And this year, there’s plenty on their plate.

This Wednesday the House will hold hearings on four bills intended to limit abortions in New Hampshire. Many of them mirror efforts in other states.

There’s the bill to ban abortions  after a fetal heartbeat can be detected. And there’s the bill that would criminalize negligence by doctors around “born alive” infants.

Now, as the shifting balance on the U.S. Supreme Court invigorates advocates on both sides of the divide, one trend is clear: The national fights around abortion have come to Concord.

Start with the fetal heartbeat bill. Proposed by Rep. Dave Testerman, a Franklin Republican, House Bill 1475 would explicitly ban any abortions, with two exceptions.

Those exceptions: abortions in which a heartbeat of the fetus could not be detected and those carried out to protect the mother from death or serious injury.

The law would require that doctors provide a written affidavit confirming that the birth of the child would pose a serious risk to the mother. Violating the proposed law would lead to disciplinary action against the doctor by the board of medicine.

It’s a law that has been passed – or attempted to be passed – in 19 states. Some have instead instituted a specific time limit, such as 20 weeks into pregnancy. But Testerman says a heartbeat ban is a less arbitrary limit.

“Sometime earlier would be better,” he said. “But the argument (for tying it to a heartbeat) is usually we are trying arbitrary times. When there’s a heartbeat, it’s clear there’s a life.”

The bill faces an immediate problem, though. So far, every state that has enacted a fetal heartbeat bill has seen it struck down or temporarily blocked in federal court.

That’s partly because heartbeats can be detected as early as six weeks into a pregnancy, often before a woman knows she is pregnant, making a heartbeat ban an effective prohibition on abortion, courts have found.

To Testerman, the legal history is a challenge but not a dealbreaker. And even if it were tied up in court, New Hampshire’s law could add weight to a future Supreme Court case if passed, he said.

Another representative has her sights on a different aspect of the abortion debate. House Bill 1675 would specify that infants that are “born alive” be treated as legal persons in New Hampshire law.

Sponsored by Rep. Katherine Prudhomme-O’Brien, a Derry Republican, the bill defines a born-alive infant as one “who, after such expulsion or extraction, breathes, has a beating heart, or has definite movement of voluntary muscles,” whatever the stage of development. It would give those infants the same rights to medical care; any doctor that didn’t provide that care would be subject to a Class A felony in state law.

Federal law already offers protection to those infants; the 2002 Born Alive Infant Protection Act extends legal personhood to infants born alive during an abortion. And opponents to the law say doctors are already obligated to provide medical care to infants whether it’s spelled out in law or not.

But Prudhomme-O’Brien says the law is necessary. It adds an extra layer of protection in state law. And it would help give state authorities a better avenue to pursue any cases that did arise, she said.

“I don’t think there’s a problem with New Hampshire explicitly saying this is how we would like to deal with this as a state,” she said. “This is what constituents talk to me about.”

O’Brien said she isn’t aware of cases in New Hampshire. But she said since the state does not keep statistics on abortions, that information is not easily available.

“I think it is borne out of concern that something could be happening,” she said.

Then there is House Bill 1678 and House Bill 1640. The first would prohibit abortions if it is known that the woman is doing so because of the fetus’s sex, genetic abnormalities or potential for Down Syndrome. The second would eliminate the ability for minors to get around the parental notification requirement by getting permission from a judge, effectively requiring all minors to tell their parents before getting an abortion.

Planned Parenthood is staunchly opposed to all four. And the organization has sounded the alarm bells to fellow abortion-rights supporters.

“These bills to ban or restrict access to abortion are truly unprecedented in terms of how extreme they are,” said Kayla Montgomery, director of advocacy and organizing at Planned Parenthood New Hampshire Action Fund. “We’ve seen attacks on reproductive rights play out all over the country in the last few years, but abortion remains safe and legal in all 50 states.”

As activists on both sides start painting their signs for Wednesday’s hearing, it’s hard to ignore the national backdrop behind the recent escalation in Concord.

Fetal heartbeat bans have been floated in states for years, even if generally not in the Northeast. And “born alive” infant protections have seen a resurgence after a controversial interview with Gov. Ralph Northam in 2018 and a failed U.S. Senate bill offering similar protections in 2019.

2020 is also an election year.

Still, asked how the proposed abortion restrictions might factor into state elections in November, proponents of the bills differed.

Prudhomme-O’Brien said the topic comes up on the campaign trail and has driven her decision to sponsor the bill.

“It has been a constant in the discussion that people have with me,” she said.

Testerman sees it differently.

“I don’t think it will drive the election one way or another,” the Republican said, arguing that voters would be more concerned about the bills passed by Democrats. “I’m guessing that’s going to cook the goose for them.”

Either way, the abortion fight is here, and the back-and-forth is just beginning. With all four bills slated back to back, Wednesday’s Judiciary Committee hearing in Representatives Hall is set to be an all-day affair.

And this time, look out for advocates on both sides of the issue.

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)

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