The confirmation of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett during the Trump Administration dramatically increased the chances that Roe would be overturned. In June of 2022, what once seemed improbable, then inevitable, became reality - Roe and Casey were overturned, in full.
While many in the GOP continue to claim they are pro-choice, the reality is that reproductive rights have been chipped away at over the past several years here in New Hampshire. With the overturning of Roe, the federal backstop of protecting a baseline level of these rights has been removed - making codifying such rights at the state level absolutely essential.
Let's be direct: For better or for worse, in today's politics, if you are not playing offense on public policy, you will soon be playing defense. And on abortion rights, this is exactly what is happening at the state and national level right now. So we need to play offense.
We have an obligation at the state level to assert in the clearest, strongest manner possible New Hampshire’s commitment to protect and maximize the right of women to make their own health care decisions about their own bodies, including reproductive decisions. In that spirit, New Hampshire should join other states in explicitly and expansively codifying the right to safely have an abortion.
1) Join a growing number of states in codifying the right to abortion at the state level. Currently, eight states have laws that explicitly protect the right to have an abortion. An example of the language (based, in part, on the State of Washington) could look like this:
Every individual possesses a fundamental right of privacy with respect to personal reproductive decisions. Accordingly, it is the public policy of the State of New Hampshire that:
(1) Every individual has the fundamental right to choose or refuse birth control;
(2) Every woman has the fundamental right to choose or refuse to have an abortion;
(3) The state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion; and
(4) The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.
2) Public funding of abortion services
Currently, Medicaid dollars may only be used for abortion services in the cases of rape, incest, or life endangerment of the mother. This has the effect of creating more choice for those with greater means, and less choice for those without such means. Abortion is an emotional and difficult topic, but within the context of state policy, it is a medical procedure, and should be treated as such. Therefore, New Hampshire should join the 16 states which currently cover abortion as part of Medicaid (in effect, eliminating the Hyde Amendment at the state level). This was most recently passed in Illinois, and signed into law by Republican (now former) Governor Bruce Rauner. An example of the language (based again, in part, on the State of Washington) could look like this:
"If the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies."
3) Elimination of existing restrictions on abortion
There are a pair of laws, both enacted during the leadership of then-Speaker Bill O’Brien in 2011 and 2012, which should be repealed. There is also a law, signed by Governor Sununu in 2017 relating to fetal homicide, which should also be repealed. Finally, the 2021 late-term ban was not being widely called for by the public, and represented the first broad restriction of abortion rights in modern New Hampshire history.
New Hampshire should eliminate the parental notification requirement. Our primary concern must be the health and well-being of the young women involved, and this law has the effect of delaying care, and increasing risk.
New Hampshire should also eliminate the partial-birth abortion ban. The language itself is not medical - it is used for political purposes - and it was passed over Governor Lynch’s veto in 2012 primarily to significantly increase the bureaucracy women must traverse in what is a rare, but time-sensitive, set of circumstances.
The 2017 fetal homicide bill signed by Governor Sununu uses 20 weeks as an arbitrary marker of viability for the purpose of liability. There are already state statutes on the books which provide enhanced felony penalties when a crime committed against a pregnant woman results in a miscarriage or stillbirth. The primary purpose of this law was to move New Hampshire towards recognizing fetal personhood, rather than to address weaknesses in existing law. Combined with the 2021 late-term restriction, the effect is to suggest a significant number of terminations are late in the pregnancy, and decided upon casually.