News Abortion

New Hampshire House Passes 20 Week Ban, 24 Hour Wait and “Informed Consent” Bills

Robin Marty

The New Hampshire House has been very busy restricting abortion this week.

The New Hampshire state House has turned into an “all abortion, all the time” legislative session, as it voted this week to pass bills on “informed consent,” a 24 hour wait period prior to an abortion, and a 20 week ban based on the unproven claim of fetal pain.

New Hampshire’s wait period bill was originally going to involve telling women that abortion causes breast cancer, as well as force women to watch a video of fetal development prior to the termination, but in a series of votes those pieces were eventually stripped from the final version.

Interestingly, the justification for both the fictitious abortion/breast cancer link as well as using a video was provided by bill sponsor Republican Rep. Jeanine Notter, who argued that her legislation must be sound, since it was provided by anti-choice activist groups who had passed it in other states, and who offered to provide her with materials such as the video women would be forced to view.

Republican Rep. Jeanine Notter of Merrimack, the bill’s main sponsor, urged the House to keep her legislation intact, telling them 31 other states had adopted the same bill.

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“This is model legislation from Americans [United] for Life,” she said. “Does abortion increase the risk of breast cancer? It depends on the study (you believe.) Women should know about the risk.”

She also defended the section of the bill that required the state to create a video and other materials showing a fetus’s development from two weeks to delivery. State officials estimated it would cost the state $100,000 a year to create those materials and oversee the law. Notter said she had found a way to save money on materials because officials in Alabama and Idaho had told her New Hampshire could use theirs.

The House also passed a bill that will ban all abortions after 20 weeks, except in cases of saving the life of the mother or to “avert the serious risk of substantial and irreversible physical impairment of a major bodily function.”  As a NARAL New Hampshire affiliate notes, there are already no elective abortions performed in the state after 20 weeks.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

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The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Law and Policy

New Hampshire Council Restores Funding to Planned Parenthood

Teddy Wilson

The council’s 3-2 vote to approve the contract comes ten months after the executive body voted to reject a similar contract. In both cases Councilor Chris Sununu (R- Newfields) was the deciding vote.

The New Hampshire Executive Council voted Wednesday to reinstate a contract with Planned Parenthood amid pre-election politics.

The council’s 3-2 vote to approve the contract comes ten months after the executive body voted to reject a similar contract. In both cases Councilor Chris Sununu (R-Newfields) was the deciding vote. 

Sununu is a Republican candidate for governor of New Hampshire. 

Council members Chris Pappas (D-Manchester) and Colin Van Ostern (D-Concord), a Democratic candidate for governor, also voted to approve the contract, while members Joe Kenney (R-Union) and David Wheeler (R-Milford) voted to reject the contract.

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The $549,000 contract will fund services like physical exams, sexually transmitted infection tests, and breast and cervical cancer screenings at Planned Parenthood health centers in New Hampshire.

There are five Planned Parenthood facilities in the state. All of them offer a range of other reproductive health-care services; only two provide abortion services.

“We are pleased that a bipartisan majority of the Council listened to their constituents and the majority of New Hampshire voters and chose to reverse course from last year’s vote,” Jennifer Frizzell, vice president of public policy for Planned Parenthood New Hampshire Action Fund, said in a statement“Blocking access to health care at Planned Parenthood threatened the wellbeing of Granite State citizens.”

Planned Parenthood of Northern New England served 14,191 patients at the end of 2014, according to statistics provided by the organization. That number dropped by 21 percent, to 11,119, by the end of 2015 following the council vote to reject its funding request. 

Last year Sununu voted against approving the contract for Planned Parenthood citing surreptitiously recorded videos from the anti-choice front group the Center for Medical Progress.

The organization’s leader, David Daleiden, is facing a felony indictment in Texas for tampering with government documents.

Democratic Gov. Maggie Hassan refused to investigate Planned Parenthood in the wake of the smear campaign. “We do not launch investigations in the state of New Hampshire on rumor,” Hassan said last August according to a local ABC affiliate. “We do not launch criminal investigations in the state of New Hampshire because somebody edits a tape.”

Hassan is a candidate for the U.S. Senate, and a crowded field of Democrats and Republicans are competing to succeed her in November.

Sununu defended his vote in January because of Hassan’s refusal to investigate Planned Parenthood of Northern New England and because of political pressure from reproductive rights advocates after his vote against the funding. “They proved themselves to be bullies and I don’t do business with bullies,” Sununu said, reported Seacoast Online.

However, Sununu’s tone changed Wednesday. “As [Planned Parenthood] is no longer under investigation, they should be treated like any other organization that comes before the council,” said Sununu in a statement.

Sununu told reporters after the vote that he decided not to allow politics to interfere with ensuring health care access in the state.

“I’m not going to let politics [influence] the importance of funds that go to help low-income women. I’ve been a supporter of these types of funds since the day I became a councilor, and I’m going to maintain my consistency with that support,” Sununu said, reported New Hampshire Public Radio.

Republican gubernatorial candidate Frank Edelblut reportedly criticized Sununu for his vote. He remarked, according to New Hampshire Public Radio: “Clearly what this shows is we’ve got a lack of principle here. We need a governor who has principles that the voters can rely on.”