Capital Beat: Here’s where New Hampshire stands on abortion laws

Monitor staff
Published: 5/18/2019 11:05:32 PM

It seemed to unfold at once: in Georgia, with a fetal heartbeat bill; in Missouri, with an eight-week restriction; and in Alabama, with a near total ban.

Now, a wave of far-reaching anti-abortion bills signed into law by Republican governors – including in five other states earlier this year –has whipped the spotlight onto abortion rights and electrified its advocates. Now, those same advocates are looking to build a counterweight. At least three presidential candidates have proposed national laws to secure reproductive and abortion rights through legislation, and several left-leaning states have followed suit.

It’s an approach that’s been advocated by some in New Hampshire as well. But amid escalating national tension, activists on both sides of the issue have stressed a simple reality: New Hampshire is presently one of the most pro-choice states in the country.

Here’s a look at why.

Open rights

Right now there are no restrictions to abortion in New Hampshire. That’s been officially the case since 1997, when New Hampshire repealed its abortion restrictions under Gov. Jeanne Shaheen.

But in practice, the restrictions have been gone even longer. When the U.S. Supreme Court issued its landmark Roe v. Wade decision in 1973, New Hampshire was one of the first states to embrace the new legal reality, setting up a clinic in downtown Concord – Equality Health Center – within a year of the decision.

Just because there are no broad restrictions, however, doesn’t mean there aren’t qualifiers. New Hampshire has had a parental notification law since 2012, for instance, which prohibits providers from carrying out abortions on minors without giving 48 hours advance notice to parents – though there is no requirement that parents consent.

And the state does not cover abortion care through Medicaid, said Kayla Montgomery, director of advocacy and organizing at Planned Parenthood. That, she argued, is a restriction in its own right, given its impact on low-income women.

Still, New Hampshire lawmakers have passed far fewer qualifiers and barriers than exist in other states. It’s not for lack of trying.

Past challenges

Legislation to restrict or qualify abortion in New Hampshire is proposed every year. Rarely are there bills that go in the other direction. But nothing seems to get traction.

Take 2011 and 2012. During the tenures of Republican House Speaker Bill O’Brien and Democratic Gov. John Lynch, over a dozen bills were submitted. Many were familiar fixtures: an attempt to count a fetus as a person in homicide cases involving pregnant women was practically perennial, for instance.

Some were expansive, similar to laws in other states. A 2012 bill to restrict abortion after 20 weeks of pregnancy passed the House, 190-109. Another bill to exempt religious societies from the requirement to cover contraception fell flat.

But in the end, few made it through, even with vast Republican majorities in the House and Senate. Lynch issued some vetoes of his own. Only two – the parental notification law and a ban on “partial-birth abortions,” a largely meaningless ban on a practice that doesn’t effectively exist – saw the Legislature override Lynch’s veto.

The pattern has continued in recent years, too, even in years of full Republican control. Since 2015, lawmakers have made around 30 attempts to restrict abortions, according to Montgomery. One made it through: the fetal homicide bill, which doesn’t directly affect abortion at all, was signed by Sununu in 2017. But most have fallen short.

Explaining why New Hampshire – a state that has endured extreme political swings in the past 10 years – has nonetheless stayed steady when it comes to abortion is tricky. But many abortion rights advocates attribute it to one central tenet that unites the state: privacy.

“New Hampshire is a state with a long bipartisan support of protecting privacy,” Montgomery said.

As it happens, that concept is also at the heart of Roe v. Wade, a decision that leans on an implied right to privacy in the U.S. Constitution. To Jeanne Hruska, political director at the American Civil Liberties Union of New Hampshire, it’s at the heart of why both Roe and New Hampshire’s open abortion laws are still standing.

“I believe New Hampshire’s long-standing support for reproductive rights is closely linked to our state’s libertarian spirit and devotion to privacy,” Hruska said. But with changes to the Supreme Court and growing action from states to restrict abortion, that could change, others argue.

Pre-emptory defense

Addressing a small cluster of onlookers in Concord on Thursday, two-time and potentially three-time gubernatorial candidate Steve Marchand gave a speech with a high-flying theme: “Protecting and expanding reproductive rights in the Kavanaugh era.”

The speech was meant to announce his support for codifying a right to abortion into state law, a step New Hampshire hasn’t taken before. No pro-choice lawmaker in recent history has attempted codification, according to Montgomery.

Presently 10 states have abortion codification on their books. The proposed legislation, modeled after a law in Washington state, would give “every woman” “the fundamental right to choose or refuse to have an abortion.”

For abortion rights supporters in New Hampshire, the bill would do little in the way of creating permanence. And it is unclear what the effects it would have on providers that don’t provide abortion services, like Catholic Medical Center in Manchester.

Nonetheless, some Democrats have argued, doing so is as much about sending a message as it is creating something permanent.

“Anybody who thinks that the way the world is today politically is the way the world will be just needs to look back a decade or so in history to realize it does not have to be that way at all,” Marchand said at a press conference in Concord on Thursday, speaking next to Democratic Reps. David Meuse and Francesca Diggs, both of whom said they’d support the bill.

“This is why codifying this with a sense of urgency is not an academic exercise,” he said. “This is real, and I think we have an obligation to lead on that.”

At this point, some say it’s early, and not all have fully jumped on board. Officials from Planned Parenthood have not taken a position on codification, and officials have made clear their attention is on efforts in the state.

In a statement, Vice President of Public Policy for Planned Parenthood of New Hampshire Sabrina Dunlap did not directly comment on the codification proposal, instead stressing that the status quo laws protect abortion.

“It’s important people in New Hampshire know that abortion remains safe and legal, and Planned Parenthood will fight for our patients, no matter what,” she said.

Whatever happens, as states pile on their own sweeping laws and attention turns to the Supreme Court, the next round in New Hampshire’s fight over abortion rights could be just getting underway.


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