Opinion: Importance of NH’s right of privacy in the wake of Dobbs

Published: 7/24/2022 7:03:07 AM
Modified: 7/24/2022 7:00:04 AM

Erin Fitzgerald is a faculty fellow at New England Law Boston and a former New Hampshire prosecutor.

The impact of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization continues to reverberate across the nation.

In Dobbs, the Court held that there is no longer a federal constitutional right to abortion care because a woman’s right to choose is not “deeply rooted in this nation’s history and tradition.”

The decision places the protection and regulation of the right to choose squarely on the states, with individual states allowed to determine for themselves whether or not to recognize the right. As a result, as many commentators have aptly noted, this makes state constitutions and state courts more important than ever.

As it happens, state constitutions can, and often do, provide more protection than the federal constitution regarding a variety of rights. In New Hampshire, for instance, the state supreme court has held that Part I, Article 19 in many instances protects individuals from unreasonable searches and seizures more broadly than the Fourth Amendment to the U.S. Constitution.

Thus, for good reasons abortion rights advocates have turned to state constitutions in the battle for women’s rights. For example, on June 27, in Idaho, Planned Parenthood filed a lawsuit claiming the state’s “trigger” ban on abortion violated the state’s purported constitutional right to privacy in making familial decisions. That same day, the ACLU, along with other pro-choice groups, filed suit in Kentucky to block two abortion bans, contending the Kentucky constitution protects the right to privacy and bodily autonomy.

The actions in Idaho and Kentucky, as well as similar efforts in other states, show the growing importance of state constitutions in the wake of Dobbs. It would be surprising if similar efforts are not made in New Hampshire.

The Granite State is one of only a few that has an explicit right of privacy provision in its state constitution. In 2018, the citizens of New Hampshire voted to add Part I, Article 2-b to the state constitution. The provision states: “An individual’s right to live free from governmental intrusion in private and personal information is natural, essential, and inherent.”

While the New Hampshire Supreme Court has not yet interpreted and applied Article 2-b (except to say it applies prospectively), the provision’s potential impact in New Hampshire on the current debate of a woman’s right to choose is undeniable.

Read broadly, the provision could protect the right of New Hampshire women to enjoy privacy in their own medical information. It could, therefore, prevent government agents from obtaining any information about abortion care sought and received.

The plain language of Article 2-b supports this broad reading. After all, what could be more “natural, essential, and inherent” than medical information about oneself? Indeed, this language evinces a clear intent to make the protection of personal information as far-reaching as possible.

Moreover, during the legislative discussion about Article 2-b prior to its enactment, state legislators recognized the provision would enshrine the right of privacy in “your personal medical information into the constitution.”

It follows that, under the New Hampshire Constitution, all women who seek abortion health care within the state may be able to protect and handle their own medical information. The existence of such a right would place a real obstacle in the way of enforcing restrictions on choice, and at a minimum stand as a constitutional statement about the importance of private decision-making about personal matters.

Governor Chris Sununu has recently confirmed that the right to abortion remains protected in New Hampshire. Nonetheless, as Adam Sexton reported, choice advocates contend that this state right “is far more tenuous now without the backstop of the Roe v. Wade decision.”

Article 2-b may not answer every question regarding the extent to which abortion care can be regulated, but expect choice advocates to rely on the text to show that New Hampshire values personal privacy in ways that the federal constitution does not contemplate.

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